2011-843, Henderson Holdings at Sugar Hill, LLC v. Town of Sugar Hill

This is an interlocutory appeal from an order of the Superior

brief), for the respondent. Gardner Fulton & Waugh, P.L.L.C. on the

petitioner.

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 was stayed pending this court’s resolution of Appeal of Wilson p. 2 pursuant to RSA 76:17 (2003), and the Town moved to dismiss. The litigation under RSA 76:16, II (2003). The petitioner then appealed to the superior court

The Town did not respond to the application, which constitutes denial

submitted on its behalf was true. form did not include a certification by the petitioner that the information Lutter abatement and BTLA forms on its behalf. However, the agent authorization

abatement application to the selectmen. However, whether the Town

necessary. See form, the petitioner authorized Lutter to act for it and sign municipality interlocutory appeal statement and rely upon the record for additional facts as 2 We accept the statement of the case and facts as presented in the

petitioner’s appeal because the petitioner neither signed nor certified its we remand.

and attached an agent authorization form signed by the petitioner. On this not sign the form. Instead, Lutter wrote on the signature line “see agent form” certify that the petitioner had signed section H. The petitioner, however, did

The Town argues that the superior court lacks jurisdiction to hear the by the Town on the merits is appropriate in the circumstances. Accordingly, court may nevertheless review the Town’s denial to determine whether review Consultants, see II application based upon its lack of signature and certification, the superior followed. certify the application did not require dismissal. This interlocutory appeal the Town’s motion on the grounds that the petitioner’s failure to sign and (2011). After Wilson was decided, the superior court lifted the stay and denied

attorney representative, Mark Lutter, doing business as Northeast Property-Tax We conclude that, although the Town lawfully denied the petitioner’s

application and certify that it has a good faith basis and is based upon truthful for that purpose. Section H of the form instructed the petitioner to sign the abatement of its 2008 real estate taxes, using the form provided by the BTLA

RSA 71-B:7-a (Supp. 2011), applied to the Town for

2009, the petitioner, Henderson Holdings at Sugar Hill, LLC, through its non-

State v. Hess Corp., 159 N.H. 256, 258 (2009). In January sign said application?

especially when the facts show a knowing and purposeful choice not to

to the superior court or to the BTLA [Board of Tax and Land Appeals], true” before they may appeal any assessment decision of a municipality necessary by the board:

form shall include the following and such other information deemed The abatement application form shall be prescribed by the [BTLA]. The

assessors for an abatement of the tax.” Paragraph III states:

interpreted in Wilson scheme and not in isolation. Id

to “apply in writing on the form set out in paragraph III to the selectmen or RSA 76:16, I (200 p. 3 3) permits those aggrieved by the assessment of a tax

Pittsley, 146 N.H. 512, 514 (2001) (quotation omitted). policy sought to be advanced by the entire statutory scheme.” Fichtner v. statutes in light of the legislature’s intent in enacting them and in light of the with the signature and certification requirements in RSA 76:16, III(g) as. (quotation omitted). “Our goal is to apply Furthermore, we interpret statutes in the context of the overall statutory petitioner’s tax abatement application because the petitioner did not comply assessors, not the terms by which an appeal may be heard and decided. Cf denied its motion to dismiss. The Town contends that it properly denied the statute and ascribe the plain and ordinary meanings to the words used. Id. statute requires of applicants in the first instance before the selectmen or Watterworth The Town’s main argument on appeal is that the trial court erroneously, 149 N.H. 442, 445 (200 p. 3 3). We first examine the language of the (quotations omitted)). To the contrary, this question concerns only what the words of the statute considered as a whole. In the Matter of Watterworth & interpretation, we are the final arbiters of legislative intent as expressed in the III Thoroughgood, 148 N.H. 139, 142 (2002). In matters of statutory abatement on a different parcel). is a matter of law, we review the trial court’s decision de novo. Magoon v. Because resolution of this issue requires statutory interpretation, which

administer the law, or [the] power or right to exercise authority: CONTROL”

Cf order abatement on one parcel where property owner applied only for of Sunapee, 126 N.H. 214, 216 (1985) (holding that BTLA lacked jurisdiction to prerequisite” to establishing jurisdiction in the appellate body); Appeal of Town compliance with procedural deadline for filing appeal is a “necessary Phetteplace v. Town of Lyme, 144 N.H. 621, 625 (2000) (holding that

authority to hear and determine a cause, legal power to interpret and the plain meaning of the term jurisdiction is “the legal power, right, or . Rainville v. Lakes Region Water Co., 16 p. 3 3 N.H. 271, 275 (2012) (noting that provide the information required by RSA 76:16, III is not a jurisdictional issue. permissibly denied the application based upon the petitioner’s failure to required

p. 4 sign an abatement request, or otherwise has failed to provide the information relief from a town or the BTLA may be lost because an applicant has failed to right to seek tax relief, the statute “is silent as to whether the right to seek tax 4

In Wilson constitutes a reasonable rule for carrying out the BTLA’s functions. Id

disagreed, holding that, while failure to use the form itself does not affect the

“unless it was due to reasonable cause and not willful neglect.” Id that the information submitted is true, affects the right to seek tax relief.” Id. petitioners. Id required by RSA 76:16, III, including the taxpayer’s signature and certification

by RSA 76:16, III.” Id. at 663. We further held that “the information

Wilson

request. Id forth in RSA 76:16, III “shall not affect the right to seek tax relief.” We provides that an applicant’s failure to use the abatement application form set that the BTLA rule conflicted with RSA 76:16, IV, which, as noted above, (quoting N.H. Admin. Rules, Tax 203.02(d)). The petitioners in Wilson argued methods of appealing an adverse abatement decision – to the BTLA under RSA. at 662 III shall not affect the right to seek tax relief.” The statute provides two taxpayer’s signature and certification shall preclude” an appeal to the BTLA Paragraph IV states that the “[f]ailure to use the form prescribed in paragraph signature line and attached an agent authorization form signed by the BTLA’s administrative rules contain a provision stating that “[t]he lack of the here the petitioner appealed to the superior court. As noted in Wilson, the Town for a tax abatement. Id is that, unlike in Wilson, where the petitioners appealed to the BTLA, attorney representative employed by the petitioner in this case, to apply to the The only notable distinction between the facts of this case and those in

.

appellate record, and here the Town simply did not respond to the abatement abatement; in Wilson the reasons for the denial were not apparent in the submitted on their behalf was true. Id. In both cases, the Town denied the not include a certification by the petitioners that the information Lutter

. The agent authorization form in both Wilson and this case did

sign the abatement form; instead, Lutter wrote “See agent form” on the in the application are true.. at 660. As in this case, the petitioners did not person applying that the application has a good faith basis and the facts petitioners, Ned and Theresa Wilson, employed Mark Lutter, the same non- (g) A place for the applicant’s signature with a certification by the virtually every respect. See Wilson, 161 N.H. at 660-61. In that case, the

, we addressed a factual scenario identical to this case in

. . . . issue in its order denying the motion to dismiss nor included it in its

p. 5 and certify the application. Because the trial court neither addressed this instead it must have a board member or member of the management team sign certify the abatement application to any agent representing the company, or if

petitioner, a limited liability company, may delegate authority to sign and

In their briefs, the parties have also addressed the issue of whether the

merits of its application. court to consider whether the petitioner is entitled to review by the Town on the In light of the foregoing discussion, we remand this case to the superior

that we have consistently rejected in the past. See

the taxpayer can show reasonable cause and not willful neglect, see may, according to its own rules, review unsigned or uncertified applications if

BTLA rules allow, and is precisely the kind of narrow, unforgiving approach

down.” (quotations omitted)). equitable principles, the circumstances warrant such review. Just as the BTLA

of unsigned and uncertified applications, is more strict than that which the interpretation, which would require automatic dismissal by the superior court consideration on the merits of its application. The Town’s contrary

construed liberally, in advancement of the rule of remedial justice which it lays reviewing that decision if, in its discretion and pursuant to applicable legal or Concord, 150 N.H. 683, 686 (2004) (“[The tax abatement scheme] should be

to determine whether, in its sound judgment, the taxpayer is entitled to without providing a town with the “necessary information Admin. Rules, Tax 203.02(d), the superior court may also examine the record

the superior court instead of the BTLA does not alter the analysis of that which signed and certified. The mere fact that the petitioner in this case appealed to of signature and certification does not preclude the superior court from Of course, the fact that the Town lawfully denied the application for lack

abatement and that the facts in the application are true.” Id we stated in Wilson, “we will not do.” Id. render the statute a virtual nullity.” Id. at 663-64 (emphasis added). This, as request and without certifying that the information provided is true . . . would

construing the statutory scheme to allow a taxpayer to apply for an abatement

independent basis upon which the Town may reject applications that are not action, our holding in Wilson established that RSA 76:16, III provides an Rule 203.02(d) does not itself govern the superior court’s review of the Town’s

taxpayer to certify that he or she has a good faith basis for applying for an We now reiterate what we said in Wilson: “RSA 7 p. 6 6:16, III(g) requires the 6

DALIANIS, C.J., and CONBOY and LYNN, JJ., concurred.

Remanded generally Sup. Ct. R. 8. interlocutory appeal transfer statement, we need not address it here. See