2016-0305, Segtel, Inc. v. City of Nashua

plaintiff ’s use of the City’s right s of way. See RSA 72:6, :23 (2012). We affirm. segTEL, Inc., on the basis tha t the City lacked the authority to tax the the Superior Court (Temple, J.) granting summary judgment to the plaintiff, HICKS, J. The defendant, the City of Nashua (City), appeals an order of

and orally), for the defendant. Office of Corporation Counsel, of Nashua (Celia K. Leonard on the brief

and orally), for the plaintiff. Cole Associates Civil Law, PLLC, of Lebanon (Carolyn K. Cole on the brief

No. 2016 - 0305 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

entitled to judgment as a matter of law, we will affirm the trial court’s decision.” does not reveal any genuine issue of material fact, and if the moving party is Operations, 166 N.H. at 655 (quotation omitted). “If our review of the evidence in the light most favorable to the non - moving party.” N. New England Tel. the affidavits and other evidence, and all inferences properly drawn from them, “When reviewing a trial court’s grant of summary judgment, we consider

II. Analysis

and occupation of the City’s rights of way. This appeal followed. consented to be taxed,” the City could not lawfully tax the plaintiff for its use “[b]ecause [the plaintiff] has not entered into an agreement in which it The trial court gr anted summary judgment to the plaintiff, ruling that entitle d to impose the tax; and ( p. 2 2) to strike the City’s 2014 tax assessment. in superior court, seeking: (1) a declaratory judgment that the City is not abatement, which the City denied. Thereafter, the plaintiff brought this action $1,507.94 for its use of the City’s rights of way. The plaintiff applied for an and conduits, the City in 2014 assessed the plaintiff property taxes of Having become aware of the plaintiff ’s use of the utility providers’ poles

to pay property taxes assessed by the City. undisp uted that these pole attachment agreements do not require the plaintiff for the right to place its fiber optic cables on their poles and conduits. It is utility providers, the plaintiff remits a fee to the utility providers in exchange City’s rights of way. Instead, pursuant to pole attachment agreements with the does not have its own license from the City authorizing its occupation of t he within the City. It does not own any poles or conduits within the City, and operates a fiber optic cable network throughout New Hampshire — including The plaintiff is a telecommunicati ons company that owns and/or

taxes . . . .” (Quotations omitted.) payment of, and shall pay, all properly assessed personal an d real property municipal property pursuant to this license shall be responsible for the licensees(s) and any other entity no r [sic] or hereafter using or occupying language: “In accordance wit h the requirements of RSA 7 p. 2 2:23[,] I (b), the which amended the terms of existing pole licenses to add the following utility providers pay property tax to the City pursuant to a 2005 ordinance, placed poles and conduits over certain rights of way owned by the City. The Public Service of New Hampshire (co llectively, the utility providers) — that have licenses to certain utility providers — FairPoint Communications, Inc. and 166 N.H. 653, 655 (2014), support s the following facts. The City has issued favorable to the City, see N. New England Tel. Operations v. City of Concord, The evidence submitted on summary judgment, viewed in a light most

I. Factual Background p. 3 3

interests in the rights of way must pay properly assessed real estate taxes” of determining whether non - governmental entities that use or occupy those city . . . possesses in the rights of way, those interests are ‘owned’ for purposes (2004) (agreeing with trial court’s determination that “[w]hatever interests the statute. See Verizon New England v. City of Rochester, 151 N.H. 26 p. 3 3, 268 we have recognized that a city’s rights of way fall within the purview of th e The parties agree that RSA 72:23, I, governs the present dispute. Indeed,

RSA 72:2 p. 3 3, I(a).

the party using or occupying said property. payment of properly assess ed real and personal property taxes by lease or other agreement the terms of which provide for the the state or a city, town, school district, or village district under a said real or personal property is used or occupied by other than New Hampshire city, town, school dist rict, or village district unless the personal property owned by the state of New Hampshire or by a Lands and the buildings and structures thereon and therein and

72:2 p. 3 3, I(a) exempts from taxation: or unimproved, shall be taxed except as otherwise provided.” RSA 72:6. RSA (quotation omitted). RSA 72:6 provides that “[a]ll real estate, whether improved authority.” Signal Aviation Servs. v. City of Lebanon, 169 N.H. 162, 169 (2016) “The assessment and collection of taxes must be based on legislative

not look beyond the language of the statute to discern legislative intent. Id. the context of the overall statutory scheme. Id. Absent an ambiguity, we will legislature did not see fit to include. Id. We interpret statutory provisions in not consider what the legislature might have said or add language that the used. Id. We interpret legislative intent from the statute as written and will and when possible, we ascribe the plain and ordinary meanings to the words construing its meaning, we first examine the language found in the statute, intent as expressed in the words of the statute considered as a whole. Id. In matters of statuto ry interpretation, we are the final arbiters of the legislature’s review de novo. Bank of N.Y. Mellon v. Dowgiert, 169 N.H. 200, 204 (2016). In interpretation. The interpretation of a statute is a question of law, which we Resolution of this issue require s that we engage in statutory

of taxes ha s not been met in the i nstant case. opposition, the plaintiff argues that a statutory precondition for the assessment RSA 72:6 and RSA 72:2 p. 3 3 to tax the use and occupancy of its rights of way. In On appeal, the City argues that it has statutory authority pursuant to

facts de novo.” Id. (quotation omitted). Id. (quotation omitted). “We review the trial court’ s application of the law to the p. 4 4

72:23, I, this is a distinction without a difference. The City has not identified leaseholds, see Appeal of Reid, 1 p. 4 43 N.H. at 247 - 4 8, f or the purposes of RSA argument unpersuasive. Although Appeal of Reid involved the taxation of taxation of property used or occupied pursuant to a license, w e find this on the basis that Reid involved the taxation of leaseholds, as opposed to the The City attempts to distinguish Appeal of Reid. To the extent it does so

to the agreement providing for the payment of taxes). tax exem ption does not require that the municipalit y assessing the tax be party Nashua, 136 N.H. 695, 697 (1993) (holding that the exception to RSA 72:23, I’s aware of, and consent to, taxation of their leasehold”); HEA Realty v. City of reveals that it contains. . . a tax provision that ensures that the lessees are of property taxes, and explaining that “the plain language of RSA 7 2:23, I, lessees of real properties where relevant leases did not provide for the payment N.H. 2 p. 4 46, 253 (1998) (holding that municipality could not assess tax against is consistent with our prior application of the sta tute. See Appeal of Reid, 143 terms of the pole licenses providing for the payment of taxes. This conclusion therefore could not be bound by its terms). It, therefore, is not subject to the (hol ding that defendants, who were not parties to contract in question, terms. See Fleet Bank - NH v. Christy’s Table, 141 N.H. 285, 290 (1996) Because the plaintiff is not a party to the pole licenses, it is not subject to their relevant part as “required by: in accordance with: bound by” (bolding omitted)). International Dictionary 2487 (unabridged ed. 2002) (defining “under” in the City’s rights of way “under” the pole licenses. See Webster’s Third New payment of property taxes. However, the plaintiff does not use and/or occupy 118, 121 (1999), and here the utility providers’ pole licenses provide for the purposes of RSA 72:23, I(a), N.E. Tel. & Tel. Co. v. City of Rochester, 144 N.H. have previously recognized that pole licenses are “other agreement[s]” for the agreement] provide for” the payment of property tax es. RSA 72:23, I(a). W e another “under a lease or other agreement”; and (2) “the terms of [that is exempt from taxation unless: (1) that property is used or occupied by By its plain language, RSA 72:23, I(a) provides that city - owned property

72:23, I, to tax the plaintiff ’s use of its rights of way. circumstances here, the City lacked the authority under RSA 72:6 and RSA providers. (Emphasis omitted.) We disagree, and hold that, under the 72: 23, I[,] has been satisfied” by the pole licenses t he City issued to the utility The City argues that “t he requirement for an ‘agreement’ under RSA

by the party us ing or occupying said property,” RSA 72:23, I(a). provide for the payment of properly assessed real and personal property taxes the City’s right s of way “under a lease or other agreement the terms of which authority under RSA 72:6 turns upon whether the plaintiff used or occupied occupied” the City’s rights of way. Thus, our determination of the City’s taxing (brackets omitted)). The parties, likewise, agree that the plaintiff “used or p. 5 5

does no t affect our interpretation of RSA 72:23, I. with “no right to be in the City right[s] of way,” is not an issue before u s and pole licenses would, as the City suggests, render the plaintiff a “trespass[er]” the City or an agreement by the plaintiff to be bound by the utility providers’ omitted.) Whether the absence of either a separate license to the plaintiff from profit does not, by itself, create consent to be taxed.” (Quotation and citation “[t]he fact that [the plaintiff] uses and occupies the City[’s] right[s] of way for licenses issued to third parties. Ultimately, as the plaintiff asserts in its brief, construed as implied consent by the plaintiff to be subject to the terms of its consent to be taxed. Likewise, t he City’s silent acquiescence cannot be that the utility providers agreed to pay property taxes is insufficient evidence of follow from the plaintiff ’s unlicensed attachment s. The plaintiff’s knowledge to the terms of the utility providers’ pole licenses. Such a conclusion does not such evidence supports a conclusion that the plaintiff consented to be subject Even if we were to accept the City’s assertions, we cannot discern how

[of] a new license to [the plaintiff].” We disagree. “allow[ance]. . . [of the plaintiff ’s use of] its right[s] of way with out issu [ance] “place[ment] [of] its [fiber optic cable] in City right[s] of way”; and (4) the City’s “of the conditions which are part of the . . . pole licenses”; (3) the plaintiff ’s license from the City to occupy City right[s] of way”; (2) the plaintif f ’s knowledge licenses is evidenced by: (1) the plaintiff ’s knowledge “that it must have a asserts that the plaintiff ’s consent to be subject to the terms of the pole imposed by the City and the legislature.” (Quota tion and brackets omitte d.) It demonstrates that “it was aware of and willing to accept the conditions pole licenses. The City claims that the plaintiff ’s course of conduct plaintiff impliedly consented to be subject to the terms of the utility providers’ W e construe the City’s brief as arguing, in the alternative, that the

sustainable solely u nder our i nterpretation of RSA 72:23, I. er roneously relied upon RSA 73:10 because, even if it di d, it s decision is 2 p. 5 53. Similarly, we need not address the City’s arg ument that the trial court exemption contained in RSA 72:23, I. See Appeal of Reid, 143 N.H. at 250, addressed separately its taxing authority in light of the exception to tax the municipality’s taxin g authority under RSA 73:10 in Appeal of Reid, we also leaseholds pursuant to RSA 73:10 (2012), we disagree. Although we addressed because it considered whether a municipality was entitled to tax certain Further, to the extent that the City argues that Appeal of Reid is inapplicable property unless “lease or other agreement” provides for the payment of taxes). exemption under the same circumstances. See RSA 72:23, I(a) (exempting statute excepts both leased property and licensed property from the tax licenses from the way it does to leases. Indeed, the plain language of the any language in RSA 72:23, I, indicating that the statute applies differently to p. 6 6

DALIANIS, C. J., and CONBO Y and L YNN, JJ., concurred.

RSA 72:23, I, to tax the plaintiff ’s use of the City’s rights of way. it consented to be taxed,” the City lacked the aut hority under RSA 72: p. 6 6 and ruling that “[b]ecause [the plaintiff] has not entered into an agreement in which For the foregoing reasons, we conclude that the trial court did not err in