2013-0504, Appeal of Coos County Commissioners o/b/o the Unincorporated Places of Dixville, NH and Millsfield, NH

do wnward the respondent’s, the New Hampshire Department of Revenue Appeals (BTLA), which denied the CCC’s motion to reconsider and revise Hampshire, appe al the decision of the New Hampshire Board of Tax and Land CCC), on behalf of the unincorporated places of Dixville and Millsfield, New LYNN, J. The petitioner, t he Coos Cou nt y Commissioners (collectively

and Eric A. Maher on the brief) for City of Berlin as amicus curiae. Donahue, Tucker & Ciandella, PLLC, of Meredith (Christopher L. Boldt

attorney general, on the brief and orally), for the respondent. Joseph A. Foster, attorney general (Laura E. B. Lombardi, assistant

Sandra L. Cabrera on the brief, and Mr. Frizzell orally), for the petitioner. Waystack Frizzell, Trial Lawyers, of Colebrook (Jo nathan S. Frizzell and

(New Hampshire Board of Tax and Land Appeals) AND MILLSFIELD, NEW HAMPSHIRE

No. 2013 - 504 Board of Tax and Land Appeals

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, Concor d, 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 p. 2 22 as 2

Millsfield and Dixville reported the value of the Windpark as zero dollars In their annual p. 2 2012 report of local property value to the DRA, both

was engaged in generating electric power. appraiser p rior to entering into the PILOT agreement. By p. 2 2012, the Windpark was used as the value of the Windpark. T he CCC did not consult with another year PILOT agreement pursuant to RSA 72:74 (2012), in which $113 million On March 12, 2008, the CCC and Granite Reliable entered into a ten -

tax in those places. would increase substantially, which would have the effect of raising the county equalized value of each unincorporated plac e where the Windpark is located figure. Guy Petell, another DRA employee, cautioned the CCC that the stated that she would recalculate the Board’s worksheet based on that lower response, Dickman estimated a Windpark value closer to $ 113 million. Collins ask ed the D RA representatives whether that was a reasonable figure. In her calculations, she estimated the Windpark’s value at $ 150 million and show the co unty tax impact of the Windpark on each town and city. Based on During t he meeting, Collins stated that she had prepared a work sheet to

utilities. amendments relevant to utility taxes and the general methods used to appraise Scott Dickma n, a DRA real estate appraiser, discussed recent statutory that the CCC could evaluate Granite Reliable’ s proposed PILOT agreement. meeting was to “conduct an ed ucational session. . . on utility assessment” so members of the DRA’s Property Appraisal Division. The stated purpose of the Administrator Suzanne Collins and the three county commissioners met with In a December p. 2 2007 non - public meeting, then - Coos County

under which it would make specified payments in lieu of local property taxes. enter into a payment in lieu of taxes (PILOT) agreement with Granite Reliable, relevant consideration concerning the project was whether the CCC would windpark (Windpark) in Millsfield, Dixville, and the town of D ummer. A Power, LLC (Granite Reliable), a developer, to construct a renewable energy resident. In p. 2 2007, the CCC was considering whether to allow Granite Reliable Millsf ield has a population of twenty - five residen ts and Dixville has one unincorporated places of Millsfield and Dixville are located in Coos County. The following facts are undisputed or are supported by the record. The

rehearing consistent with this opinion. disproportionate. We affirm in part, reverse in part, and remand for a because the CCC did not show that the val uations were un reasonable and Administration (DRA), p. 2 2012 equalized valuation s of Dixville and Millsfield p. 3 3

unreasonable; (2) the BTLA erred by denying its motion s to compel production equalized valuations for Millsfield and Dixville are disproportionate and Windpark is greater than its fair market va lue and, therefore, the DRA’s On appeal, t he CCC argues that: (1) the DRA’s assessed value of the

This appeal followed. pro ving that the equalized valuations were unreasonable and disproportionate. CCC’s equalization appeals, ruling that the CCC had not met its burden of disclosure rules. T he BTLA agreed. On July 17, 201 p. 3 3, the BTLA denied the witness, arguing that the CCC had not timely complied with the BTLA’s equalized values of t he unincorporated places. The DRA objected to the expert the PILOT agreement and the approximately $235 million figure for the total Windpark, and to compare the values between the $113 million fig ure used in testify abou t a “sensitivity analysis” he had conducted concerning the 2013. During the hearing, the CCC attempted to call an expert witness to T he BTLA consolidated the appeals and held a hearing on June 28,

reasoning in a written decision following the hearing. sixty - day statutory timeline. The BTLA denied both motions, explaining its circumstances that would justify continuing the hearing beyond the BTLA’s motion to continue was neither timely nor did it allege e xtraordinary appraisal was confidential pu rsuant to RSA 21 - J:14 (2012), and that the 19, 201 p. 3 3. The DRA objected to both motions, arguing that the Windpark appraisal, as well as to review “new information” provided by the DRA on June motion to continue the hearing, seeking more time to obtain and review the utility appraisal for the Windpark. On that same date, the CCC also filed a 2013, the CCC filed a motion asking the BTLA to compel the DRA to release its 2012 total equalized valuation in each unincorporated place. On June 21, on behalf of Millsfield and Dixville, asking it to revise downward the DRA’s On May 23, 2013, the CCC filed two equalization appeal s with the BTLA

$16,697,6 p. 4 47 to $54,45 p. 3 3,216. value increased from $6,426,362 to $180,342,176; Dixville’s increased from including ut i lity valuation — increased significantly from 2011: Millsfield’s places in 2012. As a result, the DRA’s tot al e qualized value for each place — appraisal in calculating the total equalized values of both unincorporated unincorporated place had appraised the Windpark, the DRA used its utility tax equalized values for Millsfield and Dixville. However, because neither that the DRA not use its higher utility tax appraisal to calculate the total million figure. By two letters sent in March and April 2013, th e CCC requested utility p roperty tax at a value that was significantly higher than the $ 113 Also in 2012, t he DRA appraised the value of the Windpark for purposes of t he because neither unincorporated place had appraised the property at that time. 4

is subject to tax relief under RSA 79 - E: p. 4 4, and property w hich is the 72:37, 72:37 - b, 72:39 - a, 72:62, 72:66, and 72:70, property which the state including the value of property exempt pursuant to RSA assessed in the several towns, cities, and unincorporated places in Equalize annually by May 1 the valuation of the property as

disagree. RSA 21 - J:3, XIII states that the commissioner of the DRA shall: the fair market value of the property. See RSA 21 - J:3, XIII (Supp. 2013). We greater than the $113 million PILOT a greement figure that the CCC contends is DRA’s assessed value of the Windpark, based up on its utility tax appraisal, is Millsfield and Dixville are disproportionate and unreasonable because the The CCC first argues that the DRA’s 2012 equalized valuations for

738 - 39. the policy or purpose sought to be advanced by the statutory scheme.” Id. at dis cern the legislature’s intent and to interpret statutory language in light of within the context of the statute as a whole.” Id. “This enables us to better “Moreover, we do no t consider words and phrases in isolation, but rather effectuate its overall purpose and avoid an absurd or unjust result.” Id. not see fit to include.” Id. “We construe all parts o f a statute together to what the legislature might have said or add language that the legislature did interpret legislative intent from the statute as written and will not consider construe that language according to its plain and ordinary meaning.” Id. “We (2011). “We first look to the language of the statute itself, and, if possible, a whole.” State Employees ’ Assoc. of N.H. v. State of N.H., 161 N.H. 730, 738 intent of the legisl ature as expressed in the words of the statute considered as “In matters of statutory interpretation, we are the final arbiter of the

statutory interpretation de novo.” Id. at 751 (quotation omitted). City of Nashua, 16 p. 4 4 N.H. at 750 - 51 (quotation omitted). “We review the BTLA’s misapprehended or misapplied the law, its order will be set aside.” Appeal of be decided ultimately by this court. Therefore, if we find that the BTLA ellipsis omitted); see RSA 541:13 (2007). “The interpretation of a statute is to that such order is unjust or unreasonable.” Id. (quotation, brackets, and unless we are satisfied, by a clear preponderanc e of the evidence before us, aside or vacate the o rder or decision appealed from except fo r errors of law, of Nashua, 164 N.H. 749, 750 (2013) (quotation omitted). “We will not set “Our standard for review of BTLA decisions is statutory.” Appeal of City

address each argument in turn. estopped from denying the accuracy of the $113 million PILOT valuation. We CCC’s expert witness to testify during the hearing; and (3) the DRA should be of the Windpark appraisal and to continue the hearing, and by not allowing the p. 5 5

it was the legislature’s intent to allow the D RA discretion as to whether to Dixville, as the CCC claims. Rather, the use of this permissive term shows that to consider other evidence in calculating the equalized values for Millsfield and (quotations om itted). The term “may” indicates that the DRA was not required perm issive and that the word ‘shall’ requires mandatory enforcement.” Id. of statutory construction is that the word ‘may’ makes enforcement of a statute v. Corpen ing, 1 p. 5 53 N.H. 571, 574 (2006) (quotation omitted). “The general rule provision is determined primarily from the language thereof.” City of Rochester Legislature as to the mandatory or directory nature of a particular statutory before the time the final equalized value i s determined.” “The intention of the consider such other evidence as may be available to the commissioner on or RSA 21 - J:9 - a, IV (2012), which states that the commissioner of the DRA “may rather than relying solel y up on its own utility tax appraisal. The CCC points to evidence when det ermining the equalized value s of Millsfield and Dixville, The CCC next contends that the DRA should have considered other

conduct a utility tax appraisal, see RSA 83 - F:3. RSA 74:1 (2012),:11 (2012), and that the DRA wa s statutorily obligated to own statutory duty to appraise the Windpark for property tax purpos es, see reasonable, particularly given that neither unincorporated place had fulfilled its appraisal in performing its statutory duties under RSA 21 - J:3, XIII was the BTLA’s de termination that it was proper f or the DRA to use the utility tax from using its utility tax appraisal when determining equalized value. Thus, because nothing in the plain language of RSA 21 - J:3, XIII prohibits the DRA calculating the equali zed value of unincorporated places. This argument fails 21 - J:3, XIII does not require the DRA to use its utility tax appraisal when the property — as opposed to the $113 million PILOT figure — because RSA value of the Windpark by using its RSA 83 - F:3 (2012) utility tax appraisal of The CCC contends that the DRA incorrectly determined the true market

value. true market value nor made a just and equitable adjustment to the Windpark ’s DRA did no t fulfill either obligation, as it neither appraise d the Windpark at its Windpark ’s value as may be equitable and just. The CCC contends that the market value of the Windpark; and (2) to make such adjustments to the obligations on the part of the DRA in this case: (1) to determine the true (E mphasis added.). The CCC argues that RSA 21 - J:3, XIII creates two distinct

payment s in lieu of taxes as may be equi table and just. which the towns, cities, and unincorporated places receive taxes or making such adjustments in the value of other property from valuations to the true and market value of the property, and by cities, and unincorporated places such sums as will bring such or deducting from the aggregate valuation of the property in town s, subject of a payment in lieu of taxes under RSA 72:74 by adding to p. 6 6

up on legislative intent or public policy. decline to address the CCC’s further arguments regarding adjustments based adjust the value of the Windpark. Becaus e the statute is clear on its f ace, we PILOT agreements. Accordingly, the DRA was not statutorily obligated to adjustments to value are to be applied only to other types of property subject to must be valued at their “true and market value”; just and equitab le J:3, XIII, renewable generation facilities that are subject to PILOT agreements covered by the first clause of the statu t e. U nder the plain language of RSA 21 not refer to RSA 72:74 PILOT agreements, but rather property not previously Read in context, the phrase “other property” in the second claus e does

RSA 72:23 - j (2012) (elderly housing). elderly persons); RSA 72:23 - i (2012) (convalescent care and elderly housi ng); facil ity); RSA 72:23 - g (2012) (community housing for physically disabled and tax - exempt properties, see, e.g., RSA 72:23 - f (2012) (community healthcare clause, see RSA 72:74, and those in the second clause that apply to various 21 - J:3, XIII: those for renewable generation facilities referenced in the first argument confuses different types of PILOT agreements c ontem plated by RSA under RSA 72:74”). The DRA highlights this point, arguing that the CCC ’s equalize annually “property which is the subject of a payment in lieu of taxes included in the first clause. See RSA 21 - J:XIII (stating that the DRA shall between Granite Reliable and the unincorporated places — is specifically renewable generation facilities made pursuant to RSA 72:74 — like that Notably, property subject to PILOT agreements between municipalities and values by determining the true market value of three specific types of pr operty. the statute. The language in the first clause requires the DRA to equalize The adjustment clause follows, and is separate from, the first clause of

collecting and paying more than its fa ir share of the county taxes. Dixville because not doing so would result in each unincorporated place Windpark’s value when calculating the equalized values for Millsfield and was statutorily required to make a just and equitable adjustment to the equitable and just.” Based up on this clause, the CCC c ontends that the DRA unincorporated plac es receive. . . payments in lieu of taxes as may be DRA shall make adjustments in the value of “other property from which the the Windpark’s value. The second clause of RSA 21 - J:3, XIII states that the We next address the CCC’s related argument regarding adjustments to

D ickman at the December 200 p. 7 7 meeting. consider the PILOT agreement, Collin s ’s calculations, and the advice of 7

courts have defined the term “tax administration” broadly for purposes of rel. Russell, 209 F.3d 408, 410 - 11 (5 th Cir. 2000) (observing that most federal interpretation of the term “tax administration.” See Hobbs v. United States ex meaning of sub - paragraph V(c). Thus, we reject the DRA’s narrow administrative procee ding. . . pertaining to state tax administr ation” within the which the CCC challenge d the DRA’s equalized valuation constituted “an definition of “administration.” Furthermore, the appeal before the BTLA in RSA 21 - J:14, V(c) because it falls squarely within the common and approved unincorporated place is a matter of “tax administration” within th e meaning of T he DRA’s statutory obligation to equalize the values of each

Third New International Dictionary 28 (unabridged ed. 2002). the action of the legislative, judicial, and executive departments.” Webster’s and “the total activity of a state in the exercise of its political powers including 488, 490 (198 p. 7 7). “Administration” means “performance of executive duties” according to their common and approved meaning.” State v. Collins, 129 N.H. absence of specific statutory definition, statutory words are to be construe d “administration” is not defined in RSA 21 - J: 14. “In Ne w Hampshire, in the values of Millsfield and Dixville, not a tax assessment. The term to state tax administration” because the CCC appealed the total equalized for two reasons. I t first argues that the utility tax appraisal does not “pertain The DRA, on the other hand, contends that the exception does not apply

which is d irectly related to a tax issue in the proceeding. state administrative proceeding that perta ins to state tax administration, and be cause the utility tax appraisal is a department record in a New Hampshire to a tax issue in the proceeding.” The CCC argues that this exception applies pertaining to state tax administration where the information is direc tly related in a New Hampshire state administrative proceeding or any judicial proceeding allows for the disclosure of “department records, files, returns, or information requirement. See RSA 21 - J:14, V. As applica ble here, RSA 21 - J:14, V(c) privileged.” Section 14 also contains several exceptions to the confidentiality in this chapter, the records and files of the department are confidential and “N otwithstanding any other provision of law, and except as otherwise provided RSA 21 - J:14, V (c) did not apply. RSA 21 - J:14, I, states, in part: confidential under RSA 21 - J:14, I, and that the exception to confidentiality in denying the CCC’s motion, the BTLA reasoned that the utility tax appraisal was compel production of the DRA’s utility tax appraisal of the Windpark. In We agree with the CCC that the BTLA erred in denying their motion to

witness could not testify. BTLA denied its motions to compel and to continue, and ruled that its expert T he CCC next argues that it did not receive a fair hearing because the

representation was made must have been ignorant of the truth of knowledge of those facts; second, the party to whom the representation or concealment of material facts made with There are four essential elements of estoppel: first, a

v. Tompkins, 124 N.H. 463, 467 (19 p. 8 84). “The party asserting estoppel bears the burden of proof.” City of Concord

with its argument. without deciding that the CCC pres erved this issue for appeal, but disagree “representations at the December 2007 meeting” with the CCC. We assume the true market value of the Windpark was $113 million because of the DRA’s Finally, the CCC argues that the DRA was estopped from denying that

address the CCC’s additional argument s on this issue. Given our ruling that the CCC was denied a fair hearing, w e need not

testify in connection with this matter. whether the CCC is entitled to subpoena Dickman or other DRA personnel to Because the issue is not squarely before us, we express no opinion as to to the extent it is able to do so — at a further hearing before the BTLA. entitled to access to th e DRA appraisal and to the opportunity to challenge it — the utility tax appraisal. We note, however, that we hold only that the CCC is present evidence to challenge or otherwise discredit the valuation arrived at on not receiv e a fair hearing before the BTLA, as it did not have an opportunity to opportunity to meet this burden. Accordingly, we conclude that the CCC did disclosure of the Windpark appraisal pr evented t he CCC from having a fair were disproportionate and unjust, we find that the BTLA’s refusal to compel the CCC had the burden to prove at the hearing that the e qualized valuations compel disclosure of the Windpark’s utility tax appraisal. W hile we agree that For the above reasons, the BTLA erred in denying the CCC’s motion to

the total equalized valuations must fail. unincorporated place s, the claim that the appraisal is not “directly related” to valuation of which substantially affects the equalized values of both the utility appraisal in calculating the true market value of th e Windpark, the related to a tax issue in the proceeding.” Because the DRA relied solel y up on not apply because the disclosure of the utility tax app raisal is not “directly We simil arly reject the DRA’s second argument — that the exception does

(same). federal law); Tavery v. United States, 32 F.3d 1423, 1430 & n.7 (10 th Cir. 1 p. 9 994) statute creating an exception to rule of confidentiality for tax information under 9

DALIANIS, C.J.