2011-368, Appeal of Liberty Assembly of God & a.

Lisa A. Biron

(New Hampshire Board of Tax and Land Appeals) in Concord; approximately twenty acres are in “current use.” See APPEAL OF LIBERTY ASSEMBLY OF GOD

of New Hampshire. RSA 72:23, III (2003). Assembly owns 26.13 acres of land

recognized and constituted” religious denomination, incorporated in the State The following facts are drawn from the record. Assembly is a “regularly No. 2011-368 Board of Tax and Land Appeals

Assembly’s request for a religious use tax exemption. We affirm.

upholding a 2008 decision of the respondent, City of Concord (City), denying the decision of the New Hampshire Board of Tax and Land Appeals (BTLA) ___________________________ CONBOY, J. The petitioner, Liberty Assembly of God (Assembly), appeals

on the brief, and Ms. Pacik orally), for the respondent. City Solicitor’s Office, of Concord (James Kennedy and Danielle L. Pacik a.m. on the morning of their release. T 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: Fund, of Leawood, Kansas (Joel Oster on the brief), for the petitioner.

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

page is: http://www.courts.state.nh.us/supreme.

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as occupied or utilized by a part-time caretaker p. 2 consisted of five general areas: (1) an apartment and two storage rooms square feet) taxable as not being used for religious purposes. This space

The City considered the entire second floor of the main building (6,916

during the preceding four-year period. furloughed missionaries at any time during 2008, and only three or four times

taxable under the City’s assessment. These rooms were not used by

an additional room available for missionaries on furlough, were considered

remaining 1,472 square feet on the first floor, consisting of an apartment and classrooms and computer lab, food pantry, storage rooms, and restrooms. The room, recreation room, kitchen and fellowship hall, library and record room,

purposes; this included the sanctuary, church offices, child care space, prayer

12,516 square feet were exempt as they were used directly for religious The City concluded that of the 13,988 square feet of the first floor,

of the combined square footage of both floors of the main building.

percent exempt/forty percent taxable ratio based upon the use of various areas assessed as supplemental commercial land. The City arrived at the sixty primary commercial site supporting the main building and 2.8 acres were

exempt square footage of the main building; 2.2 acres were assessed as a

allocated as taxable or exempt at the same proportion as the taxable and

them.” RSA 72:23, III. The remaining five acres not in current use were

garage, and one of the six acres of land not in current use “appertaining to The City exempted from taxation the storage barn, parsonage and

percent of the property. taxable. The City subsequently revised its determination and exempted sixty occupied for religious training or other religious purposes, and was therefore

property, concluding that sixty percent of the property was not used and BTLA upheld the City’s apportionment for tax year 2008. restroom, auxiliary to the restrooms on the first floor. Following appeal, the apartments; (4) “dorm” rooms minimally used for storage; and (5) a men’s

in 2008, the City granted Assembly an exemption on only forty percent of its

occupied by the grandson of Assembly’s then-secretary/treasurer; (3) vacant

granted Assembly a religious use tax exemption on all of its property. However, From 1994, when Assembly acquired its property, until 2008, the City

garage. freestanding barn now used for storage, and the parsonage and associated The developed portion of Assembly’s property includes a main building, a

or forestry purposes, although there is a “prayer trail” around its perimeter. (2003 & Supp. 2011). The undeveloped land is used primarily for agricultural p. 3 RSA 72:23, III.

they are established. the personal property used by them for the purposes for which

organized, incorporated or legally doing business in this state and

regularly recognized and constituted denomination, creed or sect, for religious training or for other religious purposes by any the lands appertaining to them owned, used and occupied directly

occupied by their pastors, convents, monasteries, buildings and

I. Whether RSA 72:23, III Fully Exempts Houses of Worship from Taxation Houses of public worship, parish houses, church parsonages

be exempt as serving a religious purpose. We address each argument in turn. . . .

from exempt space within a house of worship, all of Assembly’s space should religion; and (3) even if the statute and constitution permit parsing taxable the church building unconstitutionally “entangled” the government with otherwise provided by statute, be exempt from taxation: . . .

Appeal of City of Concord

(2) the City’s inquiries into the religious uses and purposes of each room within The following real estate and personal property shall, unless

evidence before it, that such order is unjust or unreasonable.

because it should be read as fully exempting houses of worship from taxation; pertinent part: The statutory provision setting forth the tax exemption at issue states in

interpretation de

unless the court is satisfied, by a clear preponderance of the

interrelated grounds: (1) the City and the BTLA misinterpreted RSA 72:23, III Assembly asserts that the BTLA’s ruling was erroneous on three questions of fact properly before it shall be deemed to be prima

novo.” Appeal of Gamas, 158 N.H. 646, 648 (2009).

fact pursuant to this deferential standard, we review its statutory omitted); see RSA 541:13 (2007). “Although we review the [BTLA’s] findings of

from shall not be set aside or vacated except for errors of law, facie lawful and reasonable; and the order or decision appealed

unreasonable or unlawful, and all findings of the BTLA upon all any order or decision of the BTLA to show that the same is clearly The burden of proof shall be upon the party seeking to set aside

Our review of BTLA decisions is well established: worship[,]’ it is

p. 4 definitional: “[I]f the building, owned by the church, is its ‘house of public whole.” Appeal of City of Nashua

qualification as one of these first five enumerated structures is essentially religious purposes is improper. Moreover, Assembly maintains that legislature’s intent as expressed in the words of the statute considered as a any analysis of the extent to which it is “owned, used and occupied” for “In matters of statutory interpretation, we are the final arbiters of the

reasonable. Accordingly, the language of RSA 72:23, III is ambiguous. See Both the City’s and Assembly’s constructions of RSA 72:23, III are

first five enumerated categories, it is automatically exempt from taxation, and including “houses of public worship.” “houses of public worship, parish houses, church parsonages occupied by their (1968), the version of RSA 72:23, III then in effect exempted from taxation City. In Alton Bay Camp Meeting Association v. Town of Alton legislature did not see fit to include. Id, 109 N.H. 44 We implicitly construed a prior version of the statute as urged by the words used. Id

Trust v. Comm’r, N.H. Dep’t of Revenue Admin., 161 N.H. 176, 180 (2010). subject to more than one reasonable interpretation.” First Berkshire Bus. appertaining to them.” Thus, once a structure is determined to be among the history to aid our analysis when the statutory language is ambiguous or only the last category of property – that is, “buildings and the lands intended to modify all of the enumerated properties set forth in RSA 72:23, III, attitude because it seeks exemption from taxation. Id. “We review legislative pastors,” “convents,” and “monasteries.” It argues that the clause modifies statute, we adopt neither a liberal attitude because it is a charity, nor a hostile

will not consider what the legislature might have said or add language that the

. We interpret legislative intent from the statute as written and

the language of a statute, we ascribe the plain and ordinary meaning to the

used and occupied directly for religious training or other religious purposes” is of public worship,” “parish houses,” “church parsonages occupied by their counters that, reading the statute as a whole, the qualifying phrase “owned, scrutiny is inappropriate, unworkable, and unconstitutional.” The City

used and occupied for a religious purpose, and room-by-room

directly for religious training or for other religious purposes” – that is, “[h]ouses exemptions that are not modified by the clause “owned, used and occupied omitted). Thus, it urges us to read RSA 72:23, III as creating five religious use Assocs. v. Municipality of Conway, 144 N.H. 642, 652 (2000) (quotation dominant purpose which requires a different interpretation.” Mt. Valley Mall to the last antecedent unless there is something in the subject matter or (2010), courts should construe statutes so that “a modifying clause is confined construction, see Gen. Insulation Co. v. Eckman Constr., 159 N.H. 601, 610 Assembly argues that, pursuant to the “last antecedent rule” of statutory substantial exclusion of the religious use from any part of it p. 5 designed and is not appropriated to other uses in the sense of a If the house serves all the religious purposes for which it was

purposes. Accord

St. Paul’s Church worship. In this view, it is exclusively used as such a house. So legislature had in mind when it was exempted as a house of public

Alton Bay

version of the statute, however, we held: organizations must be “used and occupied directly” for religious 5

definition, exempt from taxation in its entirety. When we issued our opinion in the lands appertaining to them owned, used and occupied directly

Assembly points to our holding in St. Paul’s Church v. Concord reason is apparent why it does not promote all the uses which the

have been no significant changes in its wording since our ruling in

at 421 (quotation omitted). In analyzing the legislative intent underlying that liable to be taxed, except houses of public worship.” St. Paul’s Church language merely clarifies that land owned by religious, 75 N.H.

, the religious exemption statute provided: “Real estate . . . is

420 (1910), to support its argument that a “house of public worship” is, by occupied by [a religious organization]” to exempting “buildings and

Swanzey, 146 N.H. 658, 663 (2001) (quotations omitted; emphasis added). E. Coast Conf. of the Evangelical Covenant Church of America v. Town of Examining the legislative history of the statute, we discover there

in Alton Bay for religious training or for other religious purposes.” This We now explicitly adopt the statutory construction we impliedly adopted

religious purposes, and the lands thereto appertaining owned and “buildings used principally for religious training or for other to “one or more” of the enumerated “types of buildings specified as exempt in. In 1994, RSA 72:23, III was amended from exempting

one or more of the types of buildings specified as exempt legislative intent. As we have previously noted: holding in Alton Bay, and we consider those amendments in our analysis of

. We recognize that the statute has been amended since our

properties all of which are subject to a subsequent modifying clause.

, we implicitly interpreted RSA 72:23, III as setting forth a list of

clause, “lands thereto appertaining” to govern exemptions for land appertaining Alton Bay, 109 N.H. at 49 (emphasis added). By considering the modifying

applicant to establish that the purportedly exempt land “be ‘appertaining’ to (Quotation omitted; emphasis added.) We held that the statute required the occupied by any regularly recognized and constituted denomination.” or for other religious purposes, and the lands thereto appertaining owned and pastors, convents, monasteries, buildings used principally for religious training of the property for which the exemption is claimed, “and such other p. 6 materials concerning the organization seeking exemption, as well as the nature

exemptions to religious . . . organizations shall have the authority to request”

power to act under the provisions of this chapter to grant or deny tax pursuant to the amendments, “City assessors . . . and other officials having submit a list of properties for which a tax exemption was claimed. However,

status of certain properties,” N.H.H.R. Jour. exempt. Before the 1994 amendments, the statute required religious entities to The legislature enacted amendments in 1994, “relative to the tax exempt

worship is entitled to a blanket exemption from taxation. therefore, the legislative history supports its contention that a house of public

Id

Its effect will be to close loopholes and protect against abuse. particular building represents a “house of public worship” and is, thus, the traditional exemptions for which there is broad public support. assessing body should simply accept a religious entity’s assertion that a 6 Other amendments also undermine Assembly’s argument that a tax public worship’ or any of the other specifically listed properties,” and that,

amended, intends to remove those uncertainties without removing

“were not intended to change the application of the exemption to ‘houses of exemption shall be upon the claimant.” Id. at 580. the current statute. Assembly contends that the 1994 statutory amendments exemption is claimed. The burden of demonstrating the applicability of any Nor are we persuaded by Assembly’s analysis of the legislative history of only upon property which meets requirements of the statute under which exemptions afforded by RSA 72:23 . . . shall be construed to confer exemption . at 579. The amendments included adding the following provision: “The

uncertainty for those who have to enforce them. The bill, as argument: exemption laws, as they now exist, leave a great deal of While this bill touches a lot of nerves, testimony confirmed the base

Government Committee explained: churches.” Id. at 580. As the report from the House Municipal and County restrictions on the granting of property tax exemptions on property owned by

building is adapted to subserve, to the exclusion of all secular

purported to be a “house of public worship.” analyzing the religious and secular uses of various portions of a building amendments, we recognized that applying the statutory tax exemption required Id. at 425 (emphases added). Thus, even in that case, before intervening

uses, it is used exclusively as a house of public worship.

of a religious character as it deems useful and desirable and as the long as the church organization occupies it for such public services building is also supported by our precedent. In Trustees Exeter Academy v.

p. 7 The apportionment of exempt and non-exempt uses within a single

purposes.” owned property must be “owned, used and occupied directly for religious . . .

purpose – an interpretation that our precedent, including St. Paul’s Church have previously directly addressed this question. In this case, as in Appeal of tax exemption statutes.” Id entitled to exemption because it is “used and occupied” directly for a religious that the legislature intended to treat religious exemptions differently than other

any other church-owned property; to be entitled to exemption any church-

Exeter, we noted that a building partly used for exempt purposes and partly for

interpretation of the statute, we turn to the question of apportionment. We that the City must determine whether a building owned by a religious entity is Having determined that the legislative intent supports the BTLA’s We find nothing in the language of the religious exemption statute to suggest

exempt from taxation.” Id

did not intend that a “house of public worship” be evaluated differently from 72:23, III. This argument is foreclosed by our holding today that the legislature that the structures in that case were not among those enumerated in RSA exemption cases.” Appeal of Emissaries of Divine Light Assembly seeks to distinguish Emissaries of Divine Light on the ground

worship” is sufficient to place it beyond investigation. The statute provides exemptions, we have consistently utilized apportionment when appropriate. be counter to legislative intent, as apparent from the statutory scheme).. “Additionally, in considering other statutory exempt, while other property, not used for religious activity, would not be our case law. Id. We have previously “recognized that certain property may be we explained in Emissaries of Divine Light, this assertion is unsupported by

allow apportionment between exempt and non-exempt uses in religious Emissaries of Divine Light, “[t]he taxpayer . . . argues that the statute does not

that a church’s assertion that a building constitutes a “house of public (declining to apply the last antecedent rule where such an interpretation would The legislative scheme therefore does not support Assembly’s argument interpretation. See DeVere v. Attorney General, 146 N.H. 762, 768 (2001) denial of exemption. Id religious . . . purposes,” the last antecedent rule does not require a contrary information within thirty days of a reasonable written request shall result in a 72:23, III subject to the modifier “owned, used and occupied directly for amendments also provide that an organization’s failure to provide such legislative intent of the statute is to render all of the buildings specified in RSA and Alton Bay, supports. Accordingly, in light of the evidence that the

exemption of property under” RSA chapter 72. RSA 72:23-c, II (2003). The information as shall be reasonably required to make determinations of p. 8 [Assembly’s] stated assertion that providing [housing for the needy]

purposes of the [taxpayer].” Id

To be clear, the [BTLA] is neither, on one hand, questioning

private and secular purposes and not for the statutory exempted religious

Emissaries of Divine Light used or occupied directly for a religious purpose:

federal constitutional claims. See We, likewise, reject Assembly’s assertion in this case. As in Emissaries raises no claim under the State Constitution, we confine our analysis to its 8

the land was occupied and used principally by church members for their own for whether such uses were religious

it requires an impermissible inquiry into the validity of the taxpayer’s religion. As the BTLA explained when evaluating whether Assembly’s vacant rooms were main building. In Emissaries of Divine Light of Divine Light, the BTLA never questioned the validity of Assembly’s religion.

of the Fourteenth Amendment to the Federal Constitution. Because Assembly. (quotation and brackets omitted).

the taxpayer’s religion,” but, instead, “simply attempted to determine whether purpose based on the review of the Church’s various rooms and uses, looking Emissaries of Divine Light because the BTLA “never questioned the validity of

argued that apportionment was improper in religious exemption cases because

to oppose the City’s review of the religious or secular use of portions of the authenticity of Assembly’s religion. We, accordingly, read Assembly’s argument However, the record reflects that the City and the BTLA accepted the Amendment to the Federal Constitution, as well as the Equal Protection Clause government with religion,” and violates the Establishment Clause of the First essentially a test of whether the Church is ‘sufficiently religious.’” room inside of the main building “unconstitutionally entangle[s] the enough. This analysis is flawed as it is

contends that “the City and BTLA rejected the Church’s stated religious

We note that many of Assembly’s arguments duplicate those we found

building is rigidly scrutinized. Rather, . . State v. White, 155 N.H. 119, 125 (2007). inquiry “must not be taken to an absurd extreme so that every square foot of a

Assembly argues that examining the religious uses and purposes of each

Unconstitutional II. Whether Apportioning Between Taxable and Tax-Exempt Space is

344, 353-54 (2011). We agree with the BTLA, however, that an apportionment Exeter, 90 N.H. 472, 503 (1940); see also Appeal of City of Concord, 161 N.H. to the parts assigned to the different uses.” Trustees Exeter Academy v. taxable purposes “clearly may receive a proportional division of value according we decline to further consider Assembly’s selective prosecution argument. See

p. 9 need not address Assembly’s proposed methodology. bona fide?” Having decided that the City’s methodology was not flawed, we

improperly motivated on the basis of religion. In the absence of such evidence,

espouse a religious purpose for [the property’s] use and (2) is that assertion

show that the BTLA’s inspection and partial denial of exemptions was similarly situated churches. Nor has Assembly submitted evidence tending to any evidence to suggest that the City has not, in fact, examined or taxed other

methodology: “[T]he . . . analysis should be two-fold: (1) does the church them for the reasons stated above. Assembly proposes an alternative reiterates the constitutional arguments it lodged against the BTLA, we reject

unused or messy rooms” of other religious denominations, without advancing

problems with the City’s methods are apparent.” To the extent that Assembly Without developed argument, Assembly states, “The Constitutional

Assembly questions why the City did not examine and tax the “bathrooms and

the out-of-state authorities upon which Assembly relies.

religious purpose. We rejected a similar argument in Emissaries of Divine organizational statements and its actions taken pursuant to those our consideration is brief. The record does not support this argument. Here, sufficient to satisfy the requirement that its property be directly used for a been “singled out” among other denominations for application of the statute, We also reject Assembly’s argument that its stated religious beliefs are As for Assembly’s argument, first advanced in its reply brief, that it has

Because our own case law on this subject is dispositive, we need not consider inadequate to determine whether land is being used for a religious purpose. Light, 140 N.H. at 556, explaining that a taxpayer’s religious beliefs are

exemption have been met, “we look to both its charter or

Branch Ministries v. Rossotti, 211 F.3d 137, 144 (D.C. Cir. 2000).

In determining whether the statutory requirements for receiving an the Property is used to any significant degree to house the needy. find neither by public knowledge nor in practice is there evidence required by statute. RSA 72:23, III. directly” its property “for religious training or for other religious purposes,” as the BTLA merely examined whether Assembly “owned, used and occupied (Emphasis added; quotation omitted.) Thus, as in Emissaries of Divine Light,

statements.”

use would necessarily qualify as a religious use; rather, we simply is one of its biblical mandates nor, on the other, ruling that such previously held “that a tax exemption is not warranted when the asserted p. 10 missionaries constitutes a religious purpose, we find no error. We have

Assuming, without deciding, that housing the needy and/or furloughed

its decision upon the infrequency of the religious use of these rooms. Assembly contends that the BTLA misapplied the governing law when it based furloughed missionaries, was “too infrequent to serve a religious purpose.”

taxable because Assembly’s religious use of them, to house the needy and/or Assembly asserts that the BTLA erred when it found these areas to be

convenience for him by not having to find alternative housing.”

him being related to a member of [Assembly’s] advisory board and a

[Assembly’s] intent to provide housing for the needy as it was a consequence of occupancy of the room “was not so much the result of an expression of housing for the needy. The BTLA specifically found that the grandson’s

was not one of the churches identified as providing immediate or short-term

BTLA noted that the City’s director of human services testified that Assembly

more than ‘slight, negligible or insignificant’ or ‘indefinite or prospective.’” The evidence of any recent historical use [of the room] for such purpose that was claimed was used to house the needy, the BTLA found that “there was no With respect to the second floor dorm-style room, which Assembly

religious training or for other religious purposes.’” designation automatically qualify [the apartment] as being used ‘directly for

made [the first floor apartment] available for missionary use does not by such

purposes.” The BTLA also ruled that “the fact that [Assembly] designated and qualify the [first floor missionary apartment] [as] being used for religious decided that this use was “slight and insignificant,” and, therefore, “[did] not

using the apartment on the first floor “only three or four times.” The BTLA

resided on the second floor of the main building, he could recall missionaries

2008. The BTLA also observed that in the four-year period that the caretaker

because, in fact, it was not used by furloughed missionaries at any time in 10 The BTLA found that the apartment on the first floor was taxable

missionary apartment and a dorm-style room on the second floor. Assembly describes the space occupied by the grandson in 2008 as a first-floor the grandson, was “made available for missionaries and the homeless/needy.”

for religious purposes because this space, although temporarily occupied by Assembly first argues that the space occupied by the grandson was used

thus, tax-exempt. uses to which Assembly put the property in 2008 were religious uses and, Constitution permit apportionment within a house of public worship, all of the Alternatively, Assembly argues that, even if the statute and Federal

Religious Purposes III. Whether Assembly’s Premises Were Exempt Because They Were Used for presence for that purpose was not necessary. But

p. 11 religious purpose, we uphold the BTLA’s finding that the caretaker’s physical

purpose. Assuming, without deciding, that providing security for a church is a for security, and implies that providing security constitutes use for a religious Assembly argues that, in fact, the caretaker’s physical presence was necessary

the second-floor men’s room during worship services. Assembly, thus, findings as unreasonable because the caretaker testified that parishioners used

Property was necessary for the religious use of the Property by [Assembly].”

of the Property on the first floor.” Assembly apparently challenges these

was “no compelling evidence” that the caretaker’s “physical presence at the Assembly further asserts that the BTLA erred when it found that there

the BTLA found, “did not appear to be significant or critical for the religious use floor.” To the extent that the bathroom was used by congregants, “such use,” not appear to be critical for the congregation’s activities that occur on the first

church.

exist primarily to serve any occupants of the second floor dorm rooms and did

BTLA’s decision. Nothing in that decision contravenes Assembly’s “status” as a

provided on-site physical presence for any security concerns.” exterior access had its interior door locked), and the adjacent parsonage “the main building could be secured (even the ‘prayer room’ which had 24/7 Property” was erroneous. The BTLA found that the bathroom “appeared to

evidence. See this did not negate their status as churches.” Again, Assembly misreads the measuring the credibility of witnesses, and determining the weight to be given defer to its judgment on such issues as resolving conflicts in the testimony,

physical presence was not necessary to secure Assembly’s property because men’s bathroom was not “significant or critical for the religious use of the 11 Assembly next asserts that the BTLA’s finding that the second floor

“since the beginning of time[,] . . . churches have had onsite caretakers and Assembly next addresses the caretaker’s housing. Assembly argues that contends, in effect, that the BTLA failed to weigh the testimony properly, we

parishes were not religious purposes). The BTLA found that the caretaker’s

LLK Trust v. Town of Wolfeboro, 159 N.H. 734, 739 (2010).

supports these findings, we uphold them. To the extent that Assembly Assembly’s use of it. tax exempt.” Nor did it focus upon the grandson’s use of the space, instead of As the record Assembly’s assertions, the BTLA did not find that “residential use cannot be

155 N.H. at 446 (providing maintenance and security services to deconsecrated

grandson are based upon its misreading of the BTLA’s decision. Contrary to Assembly’s remaining arguments about the space occupied by the

City of Concord, 161 N.H. at 351 (quotations and citations omitted). negligible or insignificant, indefinite and prospective, or theoretical.” Appeal of compliance with any of the requirements therefor is no more than slight, p. 12 12

Affirmed

the property and conclude that they warrant no extended consideration. See the BTLA erred in its apportionment between tax-exempt and taxable uses of We have reviewed Assembly’s remaining arguments regarding whether

72:23, III, we cannot find error in the BTLA’s finding such space taxable. DALIANIS, C.J., and HICKS and LYNN, JJ., concurred.

that are insufficiently developed for appellate review). Dartmouth College, 160 N.H. 452, 459 (2010) (declining to address arguments Vogel v. Vogel, 137 N.H. 321, 322 (1993); see also Sabinson v. Trustees of

and occupied directly for religious training or for other religious purposes,” RSA the evidence, see RSA 541:13, that the second-floor restroom was “owned, used id. Because Assembly has not demonstrated by a clear preponderance of defer to the BTLA’s judgment in determining the weight to be given evidence. impliedly asserts that the BTLA failed to weigh the testimony properly. We