2012-485, Maplevale Builders, LLC & a. v. Town of Danville

No. 2012-485 Rockingham

assessments issued to the petitioners, Maplevale Builders, LLC (Maplevale), Hoyt the Superior Court (McHugh, J.) abating “land use change tax” (LUCT) CONBOY, J. The respondent, Town of Danville (Town), appeals an order of

Center, as amicus curiae. Paul G. Sanderson, of Concord, by brief, for the NH Local Government

John J. Ratigan on the brief, and Mr. Derosier orally), for the respondent. ___________________________ Donahue, Tucker & Ciandella, PLLC, of Exeter (Robert M. Derosier and THE SUPREME COURT OF NEW HAMPSHIRE

and Sumner F. Kalman on the brief, and Mr. Kalman orally), for the petitioners. Sumner F. Kalman, Attorn ey at Law, P.C., of Plaistow (Thea S. Valvanis

http://www.courts.state.nh.us/supreme. release. The direct address of the court's home page is: Opinions are available on the Internet by 9:00 a.m. on the morning of their

reported by E-mail at the following address: reporter@courts.state.nh.us. corrections may be made before the opinion goes to press. Errors may be Doe Drive, Concord, New Hampshire 03301, of any editorial errors in order that requested to notify the Reporter, Supreme Court of New Hampshire, One Charles as formal revision before publication in the New Hampshire Reports. Readers are NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well untimely, the assessments could not be imposed. It found that by April 23, p. 2 Following trial, the trial court ruled that because all of the LUCT bills were

The petitions were consolidated, and a bench trial was held in April 2012. bills. The petitions alleged that the LUCT bills were “excessive” and “untimely.” the petitioners each filed petitions seeking to abate the February 2011 LUCT

2 June 2010 LUCT bills, see RSA 79-A:10 (2012), alleging that they were On January 24, 2011, Maplevale petiti oned the superior court to abate the

that the Town used “an incorrect ‘change in use date.’” On September 21, 2011, “excessive” compared to the property values on the “change [in] use date,” and

LUCT bills). the remaining lots for which Maplevale received building permits (February 2011 2011, the Town issued LUCT bills to the petitioners for lots 45-1, 45-3, 45-8, and current use taxation, see RSA 79-A:1 (2012), :5 (2012); that is, the parcel was the remaining lots, with the exception of lots 45-8 and 45-15. On February 23, time, the parcel on which Hoyt sought to construct the subdivision qualified for subdivision from the Attorney General’s Office. See RSA 356-A:4, I (2009) for current use assessment”). Thereafter, Maplevale received building permits for (Planning Board) seeking approval of a fifteen-lot residential subdivision. At that On January 28, 2010, Ho yt received a certificate of registration for the current use taxation when the land “is changed to a use which does not qualify (authorizing assessing officials to levy taxes upon land previously qualifying for lots – 45-6, 45-13, and 45-14 (June 2010 LUCT bills). See RSA 79-A:7, I June 2, 2010, the Town issued LUCT bills for the road, as well as three of the five received building permits for five lots – 45-1, 45-3, 45-6, 45-13, and 45-14. On building permit. Between March 23, 2010, and May 25, 2010, Maplevale Maplevale. Prior to developing each lot, Maplevale applied to the Town for a state”). Thereafter, Hoyt began to sell subdivision lots 45-1 through 45-15 to disposing of “any lot, parcel, unit or interest in subdivided lands located in this (requiring subdividers to register subdivisions with the State before offering or

undisputed. In 2008, Hoyt appeared before the Danville Planning Board The following facts ar e supported by the record or are otherwise constructing the road. subdivision. By the time Hoyt received final subdivision approval, it had finished 2010, 2012). We vacate and remand. April 23, 2009, the Planning Board granted final approval to Hoyt for its subdivision, which was depicted on the subdivision plans as the “roadway.” On (1988). On November 14, 2008, Hoyt began constructing a road to serve the reduced rate. See Dana Patterson, Inc. v. Town of Merrimack, 130 N.H. 353, 355 open space land, see RSA 79-A:2, IX (2012), and was, therefore, taxed at a

the LUCT bills were untimely under RSA 79-A:7 (Supp. 2006) (amended 2009, Real Estate Trust (Hoyt), and John H. and Maryann Manning, on the basis that occurred.” The trial court found that “the [petitioners’] action with respect to p. 3 question, [would] come out of current use when significant physical change provision was “that the legislature contemplated a block, if not all of the land in changed in use as of April 23, 2009. It ruled that the “clear import” of the this provision in determining that the road and the surrounding lots had all commercial, industrial, or institutional buildings.” The trial court relied upon 3 earth, such as building a road to serve existing or planned residential, when “[a]ctual construction begins on the site causing physical changes in the that land use shall be considered changed and the LUCT shall become payable change in use, we look to RSA 79-A:7, IV(a), which provides, in pertinent part, To determine when action by an owner of a parcel has caused the parcel to

located “at the time of the change in use.” RSA 79-A:7, II. owner or other responsible party to the town or city in which the property is qualifies as current use. See RSA 79-A:7, I. The LUCT is due and payable by the use is subject to the LUCT when its use is changed to a use that no longer see also Appeal of Estate of Van Lunen, 145 N.H. 82, 86 (2000). Land in current taxed at its current use, rather than at its highest and best use. See RSA 79-A:5; space usage.” RSA 79-A:1. To effectuate this purpose, open space land may be loss of open space due to property taxation at values incompatible with open public interest “to encourage the preservation of open space” and “to prevent the construction. See Formula Dev. Corp. v. Town of Chester, 156 N.H. 177, 178 “changed in use” as of April 23, 2009. This presents an issue of statutory RSA chapter 79-A reflects the legislature’s determination that it is in the The Town first argues that the trial co urt erred in ruling that the lots had construction de novo. See id. at 178. together to effectuate its overall purpose. Id. We review issues of statutory legislative intent. Id. at 179. We will, however, construe all parts of the statute unambiguous, we will not look beyond the language of the statute to discern meanings to the words used. Id. at 178-79. If the language used is clear and examine its language, and where possible, ascribe the plain and ordinary words of the statute. Id. When construing the statute’s meaning, we first (2007). We are the final arbiter of the intent of the legislature as expressed in the

LUCT bills were “excessive.” The Town appealed. [T]own for this tax be refunded.” The trial court did not address whether the ordered that the LUCT assessments “be removed and all monies paid to the assessments under RSA chapter 79-A. See RSA 79-A:7, II(c). Thus, the court twelve-month statutory period, the Town was prohibited from imposing the been completed. Accordingly, because the LUCT bills were not issued within the the Planning Board had granted final subdivision approval and the road had 2009, all of the subdivision lots had “changed in use” because, as of that date, p. 4 4

support a lot-by-lot assessment. They cite the concurring opinion in Formula The petitioners argue, on the othe r hand, that the exception does not

construction . . . begins.” Id. events (i.e., physical changes) occur to each individual lot. This interpretation is the exception allows it to issue LUCT bills on a lot-by-lot basis when disqualifying lots or sites are not immediately removed from current use when road The parties dispute the me aning of this exception. The Town argues that (quotation and brackets omitted). We stated, “When these conditions are met, current use assessment under the completed development plan.” Id. at 87 lots or sites under the same ownership, is large enough to remain qualified for the completed development plan . . . . qualified lots in those instances where a lot or site, or combination of adjacent large enough to remain qualified for current use assessment under “in approved subdivisions which otherwise qualify for immediate removal of all or combination of adjacent lots or sites under the same ownership, 88. We read the plain language of the statute to allow for a lot-by-lot assessment be considered changed in use, with the exception of any lot or site, disqualifying events occurred for each individual lot.” Van Lunen, 1 p. 4 45 N.H. at utilities, shown on the plan and served by such road or utilities shall A:7, V(a) allowed local assessors to “impose the [LUCT] on a lot-by-lot basis as or federal approvals, all lots or building sites, including roads and supported by our precedent. In Van Lunen, we held that this version of RSA 79- to a development plan which has received all necessary local, state When a road is constru cted or other utilities installed pursuant

exceptions. On April 23, 2009, RSA 79-A:7, V(a) provided: current use assessment.” This represents the general rule. However, there are change has taken place . . . and land not physically changed shall remain under out of current use based upon “the number of acres on which an actual physical 2009, which neither party contests. RSA 79-A:7, V provides that land is taken

The trial court applied the version of RSA 79-A:7, V in effect on April 23,

considered changed in use.” Formula Dev. Corp., 156 N.H. at 179. this question, we look to RSA 79-A:7, V, which addresses “[t]he amount of land been laid out, but which had not undergone any physical changes. To answer changes had on surrounding, yet-to-be developed land on which the lots had changes as of April 23, 2009. The question before us is the effect the road 156 N.H. at 181. The parties agree that the road had undergone physical from current use for purposes of applying the LUCT. See Formula Dev. Corp., A:7, IV(a) addresses only the type of action necessary to remove a particular lot RSA 79-A:7, IV(a), however, does not resolve the issue before us. RSA 79-

approval . . . constitutes ‘actual physical change’ with respect to the property.” installation of the road and obtaining of all of the necessary permits and p. 5 Id. Having failed to brief any of the four stare decisis factors, the petitioners have 5 or justification. so differently, as to have robbed the old rule of significant application doctrine; and ( p. 4 4) whether facts have so changed, or come to be seen legislature amended RSA 79-A:7, V(a) to specifically remove the phrase “under as to have left the old rule no more than a remnant of abandoned has been resolved by our legislature. After Formula Dev. Corp. was decided, the overruling; (3) whether related principles of law have so far developed created any doubt as to the proper interpretation of RSA 79-A:7, V(a), the issue reliance that would lend a special hardship to the consequence of Further, to the extent that the conc urring opinion in Formula Dev. Corp. practical workability; (2) whether the rule is subject to a kind of

not persuaded us that our decision in Van Lunen must be overruled. Cf. id.

In Van Lunen, we interpreted the statute at issue to allow for a lot-by-lot (1) whether the rule has proven to be intolerable simply by defying

considering: (quotation omitted). Generally, we will overrule a prior decision only after wrongly decided.” Ford v. N.H. Dep’t of Transp., 163 N.H. 284, 290 (2012) absence of some special reason over and above the belief that a prior case was stare decisis requires a court to adhere even to poorly reasoned precedent in the Lunen was incorrectly decided or poorly reasoned, “[p]rincipled application of overrule Van Lunen. Even if we were to agree with the petitioners that Van Thus, in order to accept the petitioners’ argument, we would necessarily have to determination. See Van Lunen, 145 N.H. at 87-88. Van Lunen remains our law.

Id. at 185-86.

out all at once. adjacent lots, the other lots serviced by the road or utilities still come development plan contemplates that there will be such undeveloped lots or sites remain in current use. However, even if the completed qualify for current use assessment, then these undeveloped adjacent be undeveloped adjacent lots or sites that will be large enough to If the completed development plan contemplates that there will

development plan was completed.” Id. The concurrence concluded: construction began, instead of upon whether they were intended to exist once the Lunen “erred by focusing upon whether such lots or sites existed when (Dalianis, J., concurring specially). The concurrence stated that the court in Van V(a) that permits lot-by-lot assessment.” Formula Dev. Corp., 15 p. 6 6 N.H. at 185 Van Lunen was incorrect. There is nothing in the plain language of RSA 79-A:7, Dev. Corp., which opined that “our statutory interpretation in Appeal of Estate of 6

whether the moving party has provided us with an adequate record to resolve the (2007). Additionally, when addressing any issue on appeal, we must consider raised in the forum of trial.” 74 Cox St. v. City of Nashua, 15 p. 6 6 N.H. 228, 232 March 6, 2010. However, “parties may not have judicial review of matters not because Hoyt conceded in its original petition that a change in use occurred on requests that we “hold that the Town mailed the LUCT bills in a timely fashion” With respect to the lots included in the June 2010 LUCT bills, the Town under RSA 79-A:7, V(a) are met. Van Lunen, 145 N.H. at 88. If any lot or site, or disqualifying events occur[ ] for each individual lot,” so long as the conditions use, and whether in light of the change in use date, the LUCT bills were timely. applied. Thus, we remand for a redetermination of when each lot changed in when each lot changed in use or whether the exception in RSA 79-A:7, V(a) vacate its abatement order. The parties do not ask us to determine on appeal not apply this analysis in its consideration of when each lot changed in use, we earth.” RSA 79-A:7, IV(a); see also RSA 79-A:7, V(a). Because the trial court did until “actual construction begins on the [lots] causing physical changes in the enough to remain qualified for current use, the lot or lots are not changed in use combination of adjacent lots or sites, is under the same ownership and large

Viewing the trial court’s decision in li ght of Van Lunen, we conclude that it Instead, the Town is “entitled to impose the [LUCT] on a lot-by-lot basis as

lots from current use. and the Town’s grant of subdivision approval sufficient to remove all surrounding N.H. 923, 924 (1978). Nor do we find the combination of the road’s completion itself change the use to which the land is put.” Frost v. Town of Candia, 118 Lunen, 145 N.H. at 87. Also, “[t]he obtaining of subdivision approval does not by necessarily remove from current use all lots or sites served by the road. See Van had been completed. Under RSA 79-A:7, V(a), road construction alone does not 2009, when the Planning Board granted final subdivision approval and the road erred in ruling that all of the lots of the subdivision changed in use on April 23,

Van Lunen. phrase from the statute, thus clarifying its preference for the interpretation in See Formula Dev. Corp., 15 p. 6 6 N.H. at 185. The legislature removed the qualifying “completed” in the qualifying phrase “under the completed development plan.” by-lot assessment, the concurrence in Formula Dev. Corp. emphasized the word reaching its conclusion that the prior version of the statute did not allow for a lotrepresents strong evidence that our interpretation in Van Lunen was correct. In N.H. 202, 205 (19 p. 7 79). The legislature’s 2009 amendment to RSA 79-A:7, V(a) (quotation omitted); see also Blue Mountain Forest Ass’n v. Town of Croydon, 119 original act.” Cecere v. Loon Mt. Recreation Corp., 155 N.H. 289, 293 (2007) statute, “it is logical to regard the amendment as a legislative interpretation of the amendment is enacted after a controversy arises as to the interpretation of a the completed development plan.” See Laws 2009, 84:1. Where a legislative 7

omitted). Dev. Corp. v. Town of Londonderry, 145 N.H. 615, 616-1 p. 7 7 (2000) (quotation considerations already past must be deemed a retrospective law.” Tyler Road imposes a new duty, or attaches a new disability, in respect to transactions or impairs vested rights, acquired under existing laws, or creates a new obligation, Powell, Comm’r, 134 N.H. 630, 632 (1991). “Every statute, which takes away or significance of their actions taken prior to the enactment of a law. Iandolo v. the legislature from interfering with the expectations of persons as to the legal punishment of offenses.” The underlying purpose of this prohibition is to prevent therefore, should be made, either for the decision of civil causes, or the “Retrospective laws are highly injurious, oppressive, and unjust. No such laws, Constitution. Part I, Article 23 of the New Hampshire Constitution provides: unconstitutional, retrospective law in violation of Part I, Article 23 of the State because it concluded that to do so would constitute the application of an The trial court did not apply the am ended version of RSA 79-A:7, II(c)

Inc., 162 N.H. 123, 138 (2011). remand and . . . [the] parties discuss it in their briefs.” George v. Al Hoyt & Sons, address the issue as to which version of the statute applies, as it “may arise on decision which applied the April 23, 2009 change in use date, we nonetheless eighteen months. See Laws 2010, 23 p. 7 7:3. The amendment took effect on April 1, April 23, 2009 change in use date. Although we have vacated the trial court’s amended RSA 79-A:7, II(c), extending the twelve-month limitation period to bills; thus, the June 2010 LUCT bills would have been timely even under the discover that the [LUCT] is due and payable.” In 2010, however, the legislature applies, the Town would have had until October 23, 2010, to issue the LUCT or his agent, or within 12 months of the date the local assessing officials actually 2010, they were untimely. However, if the eighteen-month limitation period assessing officials receive written notice of the change of use from the landowner concluded that because the Town failed to issue the LUCT bills before April 23, officials to mail LUCT bills “within 12 months of the date upon which the local court applied the 2009 version of RSA 79-A:7, II(c), which required assessing April 23, 2009. It then applied the twelve-month limitations period and version of RSA 79-A:7, II(c). In ruling that the LUCT bills were untimely, the trial reason. The trial court ruled that the subdivision lots had changed in use as of The Town next argues that the trial court erred by applying the incorrect The determination of wh ich version applies is relevant for the following

2010. See Laws 2010, 23 p. 7 7:5.

to address it on appeal. the trial court’s order indicate that the issue was raised below. Thus, we decline any such argument, and it has not supplied us with trial transcripts. Nor does waiver argument to the trial court: the Town’s trial memorandum is devoid of failed to provide us with a sufficient record to determine whether it presented its issue. Cf. Comeau v. Vergato, 149 N.H. 508, 510 (2003). Here, the Town has whether to overrule precedent. See ante at 5. Although my view as to the p. 8 insofar as it elucidates the factors that may be considered in determining LYNN, J., concurring specially. I join the opinion of the court except

8

(2011) (Lynn, J., concurring specially), I agree that in this case there is no cause that espoused by the majority, see State v. Quintero, 162 N.H. 526, 543-47 appeal. See 74 Cox St., 156 N.H. at 232. considerations that properly may warrant overruling precedent is broader than argument was raised before the trial court; we, therefore, decline to address it on or illegal actions remedied.” However, on this record, it is unclear whether this of the [LUCT] until any and all required permits or approvals have been secured, RSA 79-A:7, V(a), which allows local assessing officials to “delay the assessment the Attorney General’s Office constitutes a “necessary state approval” pursuant to As a final matter, the Town argues that the “certificate of registration” from DALIANIS, C.J., and HICKS , J., concurred; LYNN, J., concurred specially.

Vacated and remanded.

RSA 79-A:7, II(c) (2012). any notice or discovery of change in use occurring on or after April 1, 2009. See As a result, we conclude that the amended version of RSA 79-A:7, II(c) applies to the petitioners were impaired by the amendment. Cf. Bourque, 93 N.H. at 259. unconstitutional, retrospective law. No existing substantive or vested rights of period from twelve months to eighteen months does not here represent an Because the right was not vested, the legislature’s extension of the limitations “vested right” to rely on that limitations period. See Gould, 126 N.H. at 408. change in use that occurred on April 23, 2009; thus, the petitioners had no month limitations period had not yet expired as to any notice or discovery of Here, as of the effective date of th e amendment – April 1, 2010 – the twelve-

at 408; see Goldman & Elliott, 151 N.H. at 772. substantive right, only after the limitations period has run. See Gould, 126 N.H. upon a statute of limitations as a defense vests, and therefore becomes a existing rights.” Bourque v. Adams, p. 9 93 N.H. 257, 259 (1945). The right to rely within which an action may be prosecuted has “to do only with the remedy for omitted). Generally, a statutory provision that reduces or enlarges the time constitution.” Gould v. Concord Hospital, 126 N.H. 405, 408 (1985) (quotation or the grounds of the defen[s]e, both of which seem to be equally protected by the 770, 772 (2005). Further, a “vested right may relate to the grounds of the action, remedies enforcing those rights. In the Matter of Goldman & Elliott, 151 N.H. affect substantive rights and liabilities from those that solely affect procedures or When engaging in an Article 23 an alysis, we distinguish new laws that 9

46 (Lynn, J., concurring specially). Hampshire Division of Motor Vehicles, 14 p. 9 9 N.H. 502, 505 (2003). See Quintero, 162 N.H. at 544consistently applied the four factor test even after we first utilized it in Jacobs v. Director, New in Formula Development Corp. is thus a further example of my point that the court has not . we will not hesitate to revisit it” (emphasis added; quotations omitted)). The special concurrence recognized error”; and noting that “[w]here a decision has proven unworkable or badly reasoned . . Lunen be overruled because “[t]he stability of the law does not require the continuance of 156 N.H. at 186 (Dalianis, J., joined by Duggan, J., concurring specially) (advocating that Van incorrectly, and without ever mentioning the four factor test. See Formula Development Corp., justices asserted that Van Lunen should be overruled in part merely because it was decided only” test for overruling precedent relied on in Quintero, in Formula Development Corp. these Corp. also formed part of the court’s majority in Quintero. Yet, contrary to the narrow “four factor * Interestingly, the two justices who joined in the special concurrence in Formula Development

(Dalianis, J., joined by Duggan, J., concurring specially). Chester, 156 N.H. 177 (2007)*. See Formula Dev. Corp., 156 N.H. at 182 well-reasoned special concurrence in Formula Development Corp. v. Town of particularly given the legislature’s response to what, in my view, was the very for overruling our decision in Appeal of Estate of Van Lunen, 145 N.H. 82 (2000),