2014-0428, Nashua Coliseum, LLC v. City of Nashua

an abatement of the 2011 tax, which the City denied. Coliseum appealed the plaza ’s value at $7,659,2 00 for the 2011 tax year. Coliseum timely applied for un dispute d. Coliseum is the owner of a shoppi ng plaza. The City assessed the The following facts were found by the trial court or are otherwise

LLC (Coliseum). We reverse. abatement for the 2012 tax year for the petitioner taxpayer, Nashua Coliseum, the Superior Court (Colburn, J.) ruling that it could properly consider a tax LYNN, J. The respondent, the City of Nashua (City), appeals an order of

Ambriano on the brief and orally), for the respondent. Sassoon & Cymrot, LLP, of Boston, Massachusetts (Anthony M.

memorandum of law and orally), for the petitioner. Wadleigh, Starr & Peters, PLLC, of Manchester (Michael J. Tierney on the

No. 2014 - 428 Hillsborough - southern judicial district

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

taxes were assessed while the p. 2 2011 tax abateme nt was pending before the under RSA 76:17 - c, II because the only statutory prerequisite – that the 2012 court correctly determi ned that it could properly address the 2012 tax year hearing o n the motion in limine. On the merits, Coliseum argues that the appeal should be dismissed because it did not provide a transcript of the purposes of the statute. As a threshold matter, Coliseum argues that the City’s the abated value would not be deemed to be the correct assessment value for is inapplicable because of the parties ’ settlement agreement, wh ich states that prerequisites for the statute to apply. The City further argues that the statute under the plain language of the statute, Coliseum had not satisfied all of the abatement appeal on subsequent ly ass essed taxes. The City argues that, (2012), the statutory provision that addresses the effect of a successful On appeal, the parties propose contrary interpretations of RSA 76:17 - c, II

was upheld. Th e court approved the agreement, and th is appeal followed. amount of the abatement to which Coliseum was entitled if the court’s decision did not file an abatement request w ith the City for that year, but resolved the ru ling that it could address the p. 2 2012 tax year notwithstanding that Coliseum 2012 tax year. This agreement preserved the City’s right to appeal the court’s T he parties later entered into an agreement for judgment regarding the

subsequent motion for reconsideration. the court. The court granted Coliseum’s motion and denied the City’s tax abatement appeal for p. 2 2011, the 2012 tax abatement was properly befo re in which it sought a declaration that even though the parties had settl ed the Subsequently, Coliseum filed a motion in limine with the superior court,

from pursuing abatemen t proceedings for tax year p. 2 2012. foregoing limitation, nothing herein shall preclude the Taxpayer assessments for subsequent tax years. Subject only to the for purposes of RSA 76:17 - c, and shall have no effect on parties shal l not be deemed to be the “correct assessment value” the generality of the foregoing, the abated value agreed to by the abatement proceedings concerning this property. Without limiting the abatement shall be admissible in evidence in any other settlement of a disputed claim. Neither the fact nor the amount of The parties agree that this abatement is offered and accepted as a

agreement states, in pertinent part: the parties executed a settlement agreement regarding the p. 2 2011 taxes. The March 1, 201 p. 3 3 deadline. See RSA 76:16, I(b) (Supp. 2014). O n June 6, 2013, file an application with the City for an abatement of the 2012 taxes by the corresponding tax invoice for the plaza for the 2012 tax year. Coliseum did not abatement appeal was pending, the City issued an assessment and City’s denial to the superior court. See RSA 76:17 (2012). While the 2011 tax 3

filed. Coliseum argues that it complied with the statute, which it interprets as abatement request under RSA 76:16, I(b), which Coliseum concedes it never the court could not address the 2012 tax year in the absence of a timely argues that the statutory prerequ isite was not met. It therefore contends that finding as to the correctness of the City’s assessment for that year, the City parties’ dispute as to the 2011 tax without the need for the court to make a the application of the statute. B ecause the settlemen t agreement resolved the superior court that the 2011 tax assessment was incorrect is a prerequisite to The C ity contends that, under a plain reading of the statute, a finding by the

appeal has ever been filed with respect to such subsequent taxes. as found by the board or the court, even if no abatement request or abate such subsequent taxes, using the correct assessm ent value appeal s or the superior court, the selectmen or assessors shall value later found to be incorrect by the board of tax and land pending, subsequent taxes are assessed using an assessment If, while an appeal pursuant to RSA 76:16 - a or 76:17 is

RSA 76:17 - c, II provides:

sought to be advanced by the statutory scheme.” Id. intent and to interpret statutory language in light of the policy or purpose the statute as a whole.” Id. “This enables us to better discern the legislature’s not consider words and phrases in isolation, but rather within the context of overall purpose and avoid an absurd or unjust result.” Id. “Moreover, we do to include.” Id. “W e construe all parts of a statute together to effectuate its legislature might have said or add language that the legislature did not see fit legislative intent from the statute as written and will not consider what the that language according to its plain and ordinary meaning.” Id. “We interpret “We first look to the language of the statute itself, and, if possible, construe considered as a whole.” Appeal of Local Gov’t Ctr., 165 N.H. 790, 804 (2014). of the intent of the legislature as expressed in the words of the statute interpretation. “In matters of statutory interpretation, we are the final arbiter To resolve the remaining issue, we must engage in statutory

reject Coliseum’s argument. necessary for us to decide the abatement issue in this case. We, accordingly, entirely based up on its construction of the statute. Thus, a transcript is not the contrary, the relevant facts were undisputed, and the court’s decision was court’s decision was not based up on the resolution of any factual issues. On in limine. See Sup. Ct. R. 1 p. 3 3(2). This argument fails because the superior dismissed because it failed to provide a transcript of th e hearing on the motion We first address Coliseum’s argument that the City’ s appeal should be

con templated that the court c ould address the 2012 tax year. court – was met. Further, Coliseum c laims that the settlement a greement p. 4 4

Court, HB 1 p. 4 405, 1992 Sess. (1992). Critically, it goes on to state that “[t]he amendment allows Relative to Appeal of T ax Assessments to the Board of T ax and Land Appeals and the Superior an original appeal before a subsequent tax bill is issued.” H. Comm. on Mun. and Cnty. Gov’t, necessity for a property owner to file a se cond or subsequent appeal if [the court] has not acted on for House Bill 1405 (codified at RSA 76:17 - c) states that “[t]he purpose of the bill is to eliminate a II, the legislative history clearly supports our interpr etation of the statute. The Statement of Intent Even if we were to assume, however, that such ambiguity existed in the language of RSA 76:17 - c, on the exhaustion requirements of RSA 76:16 for subsequent tax years, we are not persuaded. To the extent that Coliseum argue s that the statute is not clear regarding th e effect of settlement 2 found by. . . the court” for purposes of RSA 76:17 - c, II. settlement agreement approve d by the court could constitute the “correct assessment value as In light of the facts of this case, we need not decide whether an assessment value contained in a 1 isolated words or phrases. See Appeal of Local Gov’t Ctr., 165 N.H. at 804. 2 of a statute together to effectuate its overall purpos e, rather than reading only does not comport with our standard of statutory construction: we read all parts administrative remedies under RSA 76:16. However, such a selective reading assessment, notwiths tanding the taxpayer’s failure to exhaust its the court alone preserves the court’s author ity to review the subsequent assessment is issued while an appeal for an earlier tax year is pending before found to be incorrect.” U nder its reading, th e simple fact that a subsequent sweeping protection than the language affords by ignoring the phrase “later Coliseum urges us to interpret RSA 76:17 - c, II as providi ng more

properly before the superior court. the 2012 tax year within the requisite tim e period, the 2012 taxes were not Thus, inasmuch as Colis eum had not properly filed an abatement requ est for precluded such a necessary finding by the court, the statute does not apply. 1 not find that the 2011 valuation was incorrect and the settlement agreement value’ for purposes of RS A 76:17 - c.” In this case, then, because the court did agreed to by the parties shall not be deemed to be the ‘correct assessment t he settlement agreement, by its explicit terms, provides that the “abated value never made a finding that the 2011 assessment value was incorrect. Moreover, assessment value for the year before the court was incorrect. Here, the court remedies for subsequent tax years only i f the court later deter mines that the na rrow: taxpayers are protected from the need to exhaust administrative 76:16, I(b). The protection offered to taxpayers under RSA 76:17 - c, II is the filing deadlin es otherwise applicable to tax abatement requests. See RSA value was incorrect in order for the taxpayer to be excused from complying with City that the statute requires the superior court to find that the assessment Based upon a plain reading of the statutory language, w e agree with the

tax year. settleme nt agreement allowed it to pursue abatement proceedings for the 2012 incorrect assessment. In addition, Col iseum contends that the language of the acknowledge or address the statutory language regarding a court finding of an an abatement appeal is pending” before the court. It does not specifically providing “that one need not file a new abatement application e ach year while p. 5 5

Coliseum’s position at oral argument, we need not address this issue. they are jurisdictional, and, therefore, cannot be waived. Because of the clarification of whether the provisions of RSA 76:16 and RSA 76:17 - c, II can be waived by agreement or whether Were the agreement to be construed in this fashion, we would then be required to decide 3 (emphasis added). the Board or the court to retain jurisdiction to be sure abatements, if granted, take place.” Id.

DALIANIS, C.J.