2009-805, Appeal of City of Concord

Gardner, Fulton & Waugh, PLLC

conveyance, the taxpayer became liable to pay the land use change tax. See no longer qualified for current use taxation. Thus, at the time of the August 2006. As a result of this conveyance, the subdivision’s remaining land conveyance of the common area to the City – a condition that was satisfied in approval” on March 15, 2006. This approval was conditioned on the taxpayer’s The City Planning Board granted “conditional preliminary and final

No. 2009-805 common area consisted of 14.52 acres. area. The total acreage of the building lots was less than ten acres. The known as Juniper Fells Phase IV consisting of five building lots and a common (taxpayer) sought cluster subdivision approval from the City for a subdivision The following facts are supported by the record. Juniper Fells, LLC

Board of Tax and Land Appeals

New Hampshire Board of Tax and Land Appeals (BTLA). We reverse. DUGGAN, J. The City of Concord (City) appeals an adverse ruling of the

the brief and orally), for the petitioner.

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 to press. Errors may be reported by E-mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as be set aside or vacated except for errors of law, unless the court is p. 2 lawful and reasonable; and the order or decision appealed from shall not questions of fact properly before it shall be deemed to be prima facie unreasonable or unlawful, and all findings of the [BTLA] upon all order or decision of the [BTLA] to show that the same is clearly [T]he burden of proof shall be upon the party seeking to set aside any

Our review of BTLA decisions is established by statute:

The City’s motion for rehearing was denied, and this appeal followed.

contained in Pt. I, Art. 15 of the New Hampshire Constitution. not be compliant with the constitutional provisions of due process comport exactly with the statutory provisions but to rule otherwise would requests are timely. The board understands this conclusion does not notice dated March 10, 2008 and thus the Taxpayer’s abatement concludes the Taxpayer’s notice of the LUCT bills occurred with the lien depriving the Taxpayer of its due process rights. Consequently, the board untimely] would result in a fatal and inequitable conclusion thus [T]he board finds [that declining to consider the Taxpayer’s appeal as

actual notice of the LUCT bills” and ruled: The BTLA concluded that “the Taxpayer had neither constructive nor

abatement request is a jurisdictional prerequisite to a BTLA appeal. See The City moved to dismiss the appeal, arguing that timely filing of an

day, April 1, 2008, the taxpayer filed an appeal with the BTLA. reveal whether the City took any action on the abatement petition. The next the taxpayer filed an abatement petition with the City. The record does not of timely filing. “notice of tax delinquencies and unredeemed tax liens.” On March 31, 2008, process rights would be violated if the BTLA declined to hear its appeal for lack not received by the taxpayer. On March 10, 2008, the taxpayer received a it did not receive actual notice that the LUCT was being levied, and that its due to the taxpayer. The BTLA found that the tax bills were mailed by the City but to the selectmen or assessors for an abatement). The taxpayer countered that On August 6, 2007, the City issued five land use change tax (LUCT) bills 79-A:10, I (2003) (giving taxpayers two months from notice of tax date to apply

also N.H. Admin. Rules, Cub 101.02(b). no longer [meets the minimum acreage requirement of 10 acres or less]”); see land use change tax shall become payable when . . . [b]y reason of size, the site RSA 79-A:7, IV(c) (Supp. 2008) (“land use shall be considered changed and the an appeal to the BTLA is permitted only “[i]f the selectmen neglect or refuse to p. 3 notice of tax date and not afterwards.” RSA 79-A:10. Under RSA 76:16-a, I, an abatement petition with the taxing authority “within 2 months of the of no exceptions. Taken together, the statutes require a taxpayer to first file We agree with the City that the plain language of these statutes admits

The interpretation of a statute is a question of law, which we review de 3

afterwards. September 1 after the date of notice of tax under RSA 76:1-a, and not board of tax and land appeals. The appeal shall be filed on or before RSA 74, upon payment of a $65 filing fee, may apply in writing to the 76:16, any person aggrieved, having complied with the requirements of If the selectmen neglect or refuse to so abate, in accordance with RSA

79-A:10, IV. Additionally, RSA 76:16-a, I (2003) states: taxing jurisdiction mails the land use change tax bill” to the taxpayer. RSA the land use change tax.” “Notice of tax date” is defined as “the date the afterwards, apply in writing to the selectmen or assessors for an abatement of land use change tax may, within 2 months of the p. 3 notice of tax date and not RSA 79-A:1, I, states, “[A]ny person aggrieved by the assessment of a examine the controlling statutes. did not see fit to include.” Id the City before taking an appeal to the BTLA. In addressing this argument, we. will neither consider what the legislature might have said nor add words that it 76:16-a, I (2003) require that a taxpayer file a timely abatement petition with modification.” Dalton Hydro v. Town of Dalton taxpayer’s appeal. Specifically, it argues that RSA 79-A:10 (2003) and RSA, 153 N.H. 75, 78 (2005). “We The City argues that the BTLA was without jurisdiction to hear the language of a statute is clear on its face, its meaning is not subject to ordinary meanings to the words used.” Id. (citation omitted). “When the considered as a whole[,] . . . and, where possible, we ascribe the plain and of the intent of the legislature as expressed in the words of the statute novo. Kenison v. Dubois, 152 N.H. 448, 451 (2005). “We are the final arbiter

RSA 541:13 (2007); see

Gamas, 158 N.H. 646, 648 (2009). deferential standard, we review its statutory interpretation de novo.” Appeal of (2007).”). “Although we review the [BTLA’s] findings of fact pursuant to this (2007) (“Appeals from BTLA decisions are governed by RSA chapter 541

order is unjust or unreasonable. satisfied, by a clear preponderance of the evidence before it, that such p. 4 Id

apprise interested parties of the pendency of the action and afford them an process requires “notice reasonably calculated, under all the circumstances, to these statutes to this taxpayer violated the taxpayer’s due process rights. Due We turn next to whether the BTLA correctly concluded that application of

In its decision, the BTLA relied on H.J.H. Inc. v. State Tax Comm’n that lot. taxes on the . . . lot [in question], the board can order no abatement as to jurisdiction. Since the taxpayers did not ask the selectmen to abate taxpayer’s original request to the selectmen. It is a truly appellate Hence, the jurisdiction of the board is limited to the subject of a can be said to neglect or refuse only what a taxpayer has first requested.

Appeal of Brady Here, the notice of tax date was August 6, 2007, see, 145 N.H. 308, 310 (2000). H.J.H. was decided under prior law and has since been superseded by statute. required inventory before appealing to the State Tax Commission. However, N.H. 203 (1967), where we excused a taxpayer’s failure to file a statutorily-

Tax Comm’n, 113 N.H. 113 (1973). therefore without jurisdiction. See Sunapee, 126 N.H. at 216; Thayer v. State the two months provided by statute. See RSA 79-A:10. The BTLA was months later. The taxpayer did not apply in writing for an abatement within and the taxpayer filed for an abatement on March 31, 2008 – more than seven limited to the subject of the selectmen’s refusal or neglect. Selectmen refuse to abate.” The subject matter jurisdiction of the board is thus RSA 79-A:10, IV, from the board [of tax and land appeals] only “if the selectmen neglect or . at 216 (citation, brackets and ellipses omitted). Under RSA 76:16-a, I (Supp.1983) a taxpayer is authorized to seek relief In Appeal of Estate of Van Lunen

held: assessment where the property owner failed to file for an abatement. We N.H. 214 (1985), we reversed the BTLA’s order reducing the town’s petition for abatement was untimely). In Appeal of Town of Sunapee, 126 575, 577 (1976) (affirming State Board of Taxation’s dismissal of appeal where 869 (1982); Arlington Am. Sample Book Co. v. Board of Taxation, 116 N.H. misfortune.” (Citations omitted.) See also Appeal of Roketenetz, 122 N.H. timely submit an appeal is fatal regardless of accident, mistake, or 76 and its predecessor have historically been strictly enforced, and failure to “The statutory deadlines for requesting a tax abatement under RSA chapter

the notice of tax date bars BTLA review. abate.” Thus, failure to file an abatement petition within two months after p. 4 p. 5 Id

It is settled law that while actual notice should be the goal, Mullane presumption. were received. Denial of receipt, without more, is insufficient to rebut the regular office procedures, it is entitled to a presumption that the notices

133 N.H. 166, 176 (1990) (“[W]e hold that due process simply required the burden.” (quotations, brackets, and citations omitted)); cf foreclosure were properly addressed and mailed in accordance with. Kakris v. Montbleau, selecting means likely to inform the persons affected, then it has discharged its actually receive notice. So long as the government acted reasonably in Cir. 1994) (“Due process does not require, however, that the interested party States v. 51 Pieces of Real Property, Roswell, N.M., 17 F.3d 1306, 1316 (10th that notice might not actually reach every beneficiary are justifiable”); United U.S. at 315, it is not required in every case, e.g., id. at 319 (“reasonable risks

is adequate.” (quotation omitted)). Genesee County Treasurer, 690 N.W.2d 917, 921 (Mich. 2005) (“Notice by mail ordinarily presumed to be constitutionally sufficient.”); Republic Bank v. Department of Justice Where, as here, the County provides evidence that the notices of, 425 F.3d 1132, 1136 (8th Cir. 2005) (“Notice by mail is conduct of important affairs” (quotation and citations omitted)); Nunley v. means of communication, upon which prudent men will ordinarily rely in the 456 U.S. 444, 455 (1982) (“the mails provide an efficient and inexpensive (recognizing “ample precedent condoning notice by mail”); Greene v. Lindsey, . (citation omitted); see also Jones v. Flowers, 547 U.S. 220, 226 (2006)

that notice by mail is sufficient to satisfy due process. For example, in Akey v. Applying these principles, the overwhelming majority of courts have held

court held: were violated by the county’s chosen notification method. p. 5 Id. at 233. The was opposed by several delinquent taxpayers claiming their due process rights property taxes. Later, the county’s attempt to sell the properties at auction of foreclosure by ordinary first-class mail to taxpayers who failed to pay their Clinton County, N.Y., 375 F.3d 231, 233 (2d Cir. 2004), the county sent notices

the way [of vital state interests] could not be justified.” p. 5 Id. at 313-14. Due Process Clause which would place impossible or impractical obstacles in substitutes.” Id. at 315 (citations omitted). However, “[a] construction of the likely to bring home notice than other of the feasible and customary reasonably permit such notice, that the form chosen is not substantially less in itself reasonably certain to inform those affected, or, where conditions do not satisfy due process, a “chosen method may be defended on the ground that it is 339 U.S. 306, 314 (1950). While notice “which is a mere gesture” does not opportunity to present their objections.” Mullane v. Central Hanover Tr. Co., burden claimants unfairly with the risk of delayed mail delivery. Such a p. 6 unemployment compensation law should not be administered so as to family . . . .” Laws 1981, 408:2. A remedial statute such as the often falls with crushing force upon the unemployed worker and his [the] spread [of unemployment] and to lighten the burden which now so The purpose of the unemployment compensation law is “to prevent . . .

We held: arrive at the appellate division” until after the deadline had passed. Id. at 833. reasons attributable solely to the postal service, the letter of appeal did not three days before the expiration of the fifteen day appeal period, but “[f]or claimant’s late appeal. There, the claimant mailed notice of intent to appeal Division of the Department of Employment Security erred in denying a Appeal of Gallant, 125 N.H. 832, 836 (1984), we held that the Appellate to the unique facts and statutory appeal period of that case. Similarly, in We note that in Ladd v. Coleman the court’s decision.” Id. at 546-47. Our holding in Ladd, however, is confined returned unclaimed or undeliverable. Cf 540:20 begins to run when the litigant is actually or constructively notified of mail on August 6, 2007, and nothing in the record indicates that the mail was that “the period for exercising a litigant’s right to appellate review under RSA entitled the taxpayer to actual notice. The City placed the LUCT bills in the RSA 540:20, see id. at 546 (explaining the three day appeal period). We held We therefore hold that the BTLA erred in concluding that due process days of the district court’s rendition of judgment,” id. at 545, as required by tenant’s appeal, noting that the tenant “had not filed his appeal within three appealed to the superior court on April 4. Id. The superior court rejected the March 29. Id. at 544. The tenant received the decision on April 1 and the court rendered its judgment on March 28 and sent its decision by mail on certain notification methods violated a tenant’s due process rights. In Ladd,

about the efficacy of methods of notice in different circumstances”). Nunley, 425 F.3d at 1138-39 (“we have to make commonsense judgments dissenting) (“on-time delivery rate of first class mail between 87% and 94%”); Dusenbery v. United States, 534 U.S. 161, 179 (2002) (Ginsburg, J., opportunity to present their objections.” Mullane, 339 U.S. at 314; see apprise interested parties of the pendency of the action and afford them an Postal Service was “reasonably calculated, under all the circumstances, to precedents above, we conclude that the City’s reliance on the United States owner before selling his property, if it is practicable to do so.”). Applying the take additional reasonable steps to attempt to provide notice to the property that when mailed notice of a tax sale is returned unclaimed, the State must

identity of the owner of [the] property.”). town to undertake reasonable efforts, not Herculean ones, to determine the p. 7 Reversed

appeal. taxpayer’s appeal, we need not address the other arguments the City raises on Because we rule in favor of the city with regard to the timeliness of the

DALIANIS, HICKS and CONBOY, JJ., concurred.

Id

(“[two] months means [two] months”). construed. See, e.g., Van Lunen, 145 N.H. at 86; Roketenetz, 122 N.H. at 870 procedures to be followed in tax abatement proceedings have been strictly owner at the time of the change in use.”). The statutes governing the RSA 79-A:7, II (“The land use change tax shall be due and payable by the statute. It involves a municipality’s efforts to collect taxes already due. See . at 835. Unlike Gallant, the case before us does not involve a remedial

though the claimant had never received notice of the decision. the claimant’s appeal rights to the appellate division would be lost, even if the notice of its decision were delayed more than 15 days in the mail, be, could lead to absurd results. Under the department’s interpretation, draconian bar to a late appeal, no matter how faultless the claimant may