2015-0626, Appeal of Public Service Company of New Hampshire d/b/a Eversource Energy

respondents Town of Antrim, Town of East Kingston, Town of Francestown, Upton & Hatfield, of Concord (Barton L. Mayer on the joint brief), for

Town of Stratford, Town of Unity, Town of Washington, and Town of Whitefield. Town of Pelham, Town of Plymo uth, Town of Raymond, Town of Springfield, Town of Lincoln, Town of Madison, Town of Marlborough, Town of Newport, Town of Haverhill, Town of Hinsdale, Town of Hopkinton, Town of Lancaster, Town of Bennington, Town of Chester, Town of Dalton, Town of Hampstead, and Eric A. Maher on the joint brief, and Mr. Boldt orally), for resp ondent s Donahue, Tucker & Ciandella, PLLC, of Meredith (Christopher L. Boldt

Company of New Hampshire d/b/a Eversource Energy. Lick on the brief, and Ms. Nelson orally), for the petitioner, Public Service Sulloway & Hollis, P.L.L.C., of Concord (Margaret H. Nelson and Derek D.

(New Hampshire Board of Tax and Land Appeals)

No. 2015 - 0626 Board of T ax 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

as amicus curiae. M.L. Byrnes, of Concord, for New Hampshire Municipal Association, by brief, Judy A. Silva, Cordell A. Johnston, Stephen C. Buckley, and Margaret

Transmission, Inc., as amic i curiae. for Unitil Energy Systems, Inc., Northern Utilities, Inc., and Granite State Gas Pierce Atwood, LLP, of Portland, Maine (Jonathan A. Block on the brief),

Revenue Administration, as amicus curiae. assistant attorney general, on the brief), for the New Hampshire Department of Joseph A. Foster, attorney general (Laura E. B. Lombardi, senior

Town of Nelson, filed no brief. Bradley & Faulkner, P. C., of Keene (Gary J. Kinyon), for respondent

Town of Hollis, self - represented respondent, filed no brief.

Town of Landaf f, and Town of Milan. joint brief), for respondents Town of Bath, Town of Bradford, Town of Bristol, Gardner, Fulton, & Waugh, PLLC, of Lebanon (Shawn M. Tanguay on the

of Sunapee. Pembroke, Town of Randolph, Town of Sandwich, Town of Sullivan, and Town Durham, Town of Fremont, Town of Littleton, Town of New Hampton, Town of Bridgewater, Town of Croydon, Town of Danville, Town of Dunbarton, Town of Walter L. Mitchell on the joint brief), for respondents Town of Andover, Town of Mitchell Municipal Group, P.A., of Laconia (Judith E. Whitelaw and

Stewartstown, Town of Stoddard, Town of Warner, and Town of Wilmot. Town of Northfield, Town of South Hampton, Town of Stark, Town of Town of Gorham, Town of Greenville, Town of Henniker, Town of New Ipswich, p. 3 3

calculating the original cost less book depreciation (OCL B D) of PSNH’s approach, which estimate d the net book value (NBV) of PSNH’s property by value s, Tegarden and Dickman primarily used two approaches: a cost municipalities where the utility’s property is located. To derive their unit property as a whole and then allocates that whole unit value to the individual property. Under the un it method, an appraiser first values all of a utility’s Both Tegarden and Dickman used the “unit method” to appraise PSNH’s

for the purpose of the RSA chapter 8 p. 3 3 - F state utility property tax. Additionally, PSNH submitted the DRA appraisals that Dickman had prepared employed by the DRA in its Property Appraisal Division as a utility appraiser. testimony from Scott E. Dickman, a New Hampshire certified general appraiser Tegarden, owner of Tegarden & Associates, Inc. PSNH also presented witness testimony and an appraisal of PSNH’s property from Thomas K. PSNH’s tax abatement appeals. During the hearing, PSNH presented expert BTLA held a consolidated hearing over eight days in February 2015 regarding assessments of PSNH’s property that occurred between 2011 and 2012. The PSNH filed tax abatement appeals w ith the BTLA f rom 86 municipal

tax. See RSA ch. 8 p. 3 3 - F (2012 & Supp. 2016). PSNH’s property at the state level for purposes of the RSA chapter 83 - F utility New Hampshire Department of Revenue Administration (DRA) appraises town according to the value of that part lying within its limits”). Separately, the utility property that is situated in more than one town “shall be taxed in each 75:1 (Supp. 2016); R SA 72:8 (2012); see also RSA 72:9 (2012) (stating that property located within the municipality, including utility property. See RSA A municipality’s selectmen are required to appraise the value of the

condition, and is well maintained. professionally managed a nd that it s property is fully operational, in good regulates PSNH’s electricity rates. The parties’ experts agree that PSNH is franchises to provide certain electricity services within its territory. The PUC Hampshire Public Utilities Commission (PUC) has granted PSNH exclusive hydroelectric facilities and three fossil fuel generating plants. The Ne w 210 communities and to 490,000 homes and businesses. PSNH owns nine electricity generation, transmission, and distribution services in approximately The relevant facts follow. PSNH is a for - profit corporation that provides

year 2012. We affirm. municipalities for tax year 2011 and 55 of the respondent municipalities for tax abatement appeals on its property located in p. 3 31 of the respondent Board of Tax and Land Appeals (BTLA) denying 77 of PSNH’s 86 individual tax d/b/a Eversource Energy (PSNH), appeal s an order of the New Hampshire L YNN, J. The petitioner, Public S ervice Company of New Hampshire p. 4 4

appealed in accordance with RSA chapter 5 p. 4 41 (2007)). The BTLA’s findings of RSA 541:13 (2007); RSA 71 - B:12 (2012) (providing that BTLA decisions may be Our standard for review ing BTLA decisions is set forth by statute. See

September 2015. This appeal followed. PSNH moved for rehearing, which t he BTLA denied by written order in

carry PSNH’s burden of proving disproportionality. because challenges based on assessment methodology do not, and cannot, responses to those criticisms, but it ruled that it need not address those points methodologies used by the municipal assessors, as well as the municipalities’ Additionally, the BTLA reviewed the criticisms leveled at the assessment met i ts burden of proving that the local assessments were disproportional. not result in a credible opinion of market value and ruled that PSNH had not appeals, the BTLA found that the Tegarden appraisals and DRA appraisals did degree of overassessment of the property at issue. Regarding PSNH’s other granted, the BTLA found that the municipal assessors a cknowledged a material PSNH’s abatement appeals and denying the remainder. For the appeals that it In July 2015, the BTLA issued a thirty - eight page order granting nine of

Young University. Heaton d id not provide an opinion of PSNH’s market value. from Tegarden and from Dr. Hal Heaton, a professor of finance at Brigham the municipalities presented their experts, PSNH presented rebuttal testimony PSNH’s other property for each municipality for which he was engaged. After only the value of PSNH’s land while relying upon the DRA’s assessment of municipality that had originally been assessed by Corcoran. Smith appraised publicly - owned utility. Sansoucy also prepared an appraisal report for the regulated utility; and a second income approach that assumed a sale to a approach; an income approach that assumed a sale to a privately - owned, the results of four approaches: a sales comparison approach; an RCNLD cost property in the municipaliti es for which he was engaged, Sansoucy reconciled new less depreciation (RCNLD) of the property. T o estimate the value of PSNH ’s he was engaged using a cost approach that calculated the reproduction cost Roberg e estimated the value of PSNH’s property in the municipalities for which Associates, Inc.; and George E. Sansoucy, of George E. Sansoucy, PE, LLC. Associates; Wil Corcoran and Monica Hurley, of Corcoran Consulting Associates of New England, Inc.; Frederick H. Smith, of Brett S. Purvis & several certified New Hampshire assessor s: Gary J. Roberge, CEO of Avitar The municipalities presented expert testimony and appraisals from

process. PSNH’s request, the BTLA took judicial notice of the DRA’s equalization property by capitalizing the company’s net operating income. Additionally, at property; and an income approach, which estimate d the value of PSNH’s p. 5 5

public utility property: original cost less depreciation (rate base or net book), may use any one or a combination of five appraisal techniques in valuing considerable deference in this area.” Id. (quotation omitted). “The trier of fact Id. (quotation omitted). “Because of this difficulty, we give the trier of fact difficulties in placing a fair market value on the property of a regulated utility.” omitted). However, “[w]e have previously recognized the extraordinary Pennichuck Water Works, 160 N.H. 18, 37 (2010) (quotation and ellipsis “Determination of fair market value is an issue of fact.” Appeal of

which property is generally assessed in the town.” Id. at 368. assessed at a higher percentage of fair market valu e than the percentage at disproportionality, the taxpayer must establish that the taxpayer’s property is more than its proportional share of taxes. Id. “To carry the burden of proving has the burden of proving by a prep onderance of the evidence that it is paying 1 p. 5 50 N.H. 363, 36 7 (2003). To succeed on a tax abatement claim, a taxpayer a taxpayer dissatisfied with an assessment.” Porter v. Town of Sanbornton, “New Hampshire tax abatement statutes provide the exclusive remedy to

value. We address each argument in turn. Tegarden and DRA appraisals did not result in a credible opinion of market used previously approved methods and procedures; and (3) finding that the PSNH’s property; (2) rejectin g the DRA’s and Dickman’s unit appraisals that failing to properly account for the impact of regulation on the market value of unjust, and unreasonable. Specifically, it argue s that the BTLA erred by: (1) DRA appraisals and allocations is inconsistent with New Hampshire law, PSNH first argues that the BTLA’s decision to reject the Tegarden and

taxation be uniform and proportional. argument; and (4) violating constitutional and statutory requirements that challenges to the municipal assessments; (3) rejecting PSNH’s estoppel and DRA appraisals; (2) ruling that PSNH had presented only methodological unreasonable because the BTLA erred by: (1) rejecting the Tegarden appraisals On appeal, PSNH argues that the BTLA’s order was unjust and

1 p. 6 66 N.H. at 499 - p. 5 500 (quotation and brackets omitted); see also RSA 541:13. before us, that such order is unjust or unreasonable.” Town of Charlestown, errors of law, unless we are satisfied, by a clear preponderance of the evidence also RSA 541:13. “We will not set aside or va cate a BTLA decision except for clearly unreasonable or unlawful.” Town of Charlestown, 166 N.H. at 499; see must show by a preponderance of the evidence that the BTLA’s decision was Town of Charlestown, 166 N.H. 498, 499 (2014). “To prevail, the [appellant] fa ct are deemed prima facie lawful and reasonable. See RSA 541:13; Appeal of 6

upon its ability to set rates and the impact that regulation would have upon PSNH ’ s argument primarily relies upon the impact that regulation has

upon NBV. Based upon our review of the record, we agree with the BTLA. restrictive that any prospective purchaser would be limited to a return based operates, considering both the benefits and burdens of such regulation, was so probative evidence that the utility regulatory enviro nment in which PSNH property.” It therefore concluded that PSNH had failed to provide sufficient regarding regulation and its alleged impact on the market value of [PSNH’s] The BTLA found that PSNH had made only “very general assertions

higher market value.” Appeal of Public Serv. Co. of N.H., 124 N.H. at 48 p. 6 6. market value is equal to its [NBV], in the absence of any specific evidence of [NBV] of the property, should be deemed to have proven that the property’s to limit any prospective purchaser of its property to a return base d on the methods of valuation, can establish the presence of regulation so restrictive as stated that “a utility which, after presenting evidence on all of the relevant was equal to its NBV. In Appeal of Public Serv ice Co. of N ew H ampshire, we Serv ice Co. of N ew H ampshire, 124 N.H. 479 (1984), to find that PSNH ’s value based upon NBV, and, therefore, the BTLA was obligated by Appeal of Public specifically argues tha t the PUC would limit any utility purchaser to a return impact of regulation upon the market value of PSNH’s property. PSNH PSNH argues that the BTLA’s decision failed to properly account for the

1 p. 6 64 N.H. 62, 66 (2012). erroneous as a matter of law. See Town of Atkinson v. Malborn Realty Trust, factual findings unless the evidence does not support them or they are Pennichuck Water Works, 160 N.H. at 41. We will uphold the trier of fact’s LLK Trust v. Town of Wolfeboro, 159 N.H. 734, 740 (2010); see also Appeal of of fact is free to accept or reject an expert’s testimony, in wh ole or in part.” and brackets omitted). “When faced with conflicting [expert] testimony, a trier evidence in the record.” Appeal of Sutton, 141 N.H. 348, 350 (1996) (quotation but rather to determine whether the findi ngs are supported by competent we would have found differently than did the board, or to r eweigh the evidence, In reviewing the board’s findings, “our task is not to determine whether

omitted). “Rat her, judgment is the touchstone.” Id. (quotation omitted). the absence of legislative directive.” Id. (quotation, brackets, and ellipsis attempted to tie the fact finder’s hands with a rigid fair market value formula in approaches are valid, but all also have weaknesses.” Id. “We have never one of the approaches listed.” Id. (quotation omitted). “All of the enumer ated must be considered, but a trier of fact need not allocate specific weight to any reproduction cost less depreciation.” Id. at 38. “Typically all relevant factors comparable sales, cost of alternative facilities, capitalize d earnings, and p. 7 7

same logic applies in s ituations in which a buyer either pays to satisfy seller assets at $30 million, even if CVEC did not directly receive all $30 million. The any power supply contracts. This is strong evidence that PSNH valued CVEC’s PSNH paid a total price of $30 million to purchase CVEC’s assets free of

municipalities. demonstrates that PSNH paid $30 million to acquire CVEC. We agree with the acquired CVEC at its NBV. The municipalities argue that this sale between the two utilities. PSNH argues that this sale demonstrates that it payment to CVEC’s parent company to terminate a power supply contract $9 million payment to CVEC, equal to the NBV of its assets, and a $21 million This disagreement arises from the structure of the sale, which included a

CVEC’s NBV. structure of the sale demonstrated a market value of more than three times testimony of one of the municipalities’ expert s, Sansoucy, indicated that the Valley Electric Co., N.H. PUC No. 24,1 p. 7 76 (May 23, 2003). However, the probable purchaser would pay a premium over NBV. See In re Connecticut the sale price for CVEC was equal to CVEC’s NBV, demonstrating that no acquisiti on of Connecticut Valley Electric Company (CVEC). PSNH argues that PSNH’s argument. For example, one sale that PSNH points to is its 2003 Moreover, the entire record of sales before the BTLA does not support

benefits that flow from regulation. BTLA also heard extensive testimony from Sansoucy and Roberge regarding the little, if any, knowledge of the New Hampshire regulatory environment.” The testimony. It specifically found that Tegarden, in particular, “demonstrated Dickman to meet its burden, the BTLA was not required to accept their To the extent that PSNH relied upon the test imony of Tegarden and

disproportional. such a degree as to make the challenged municipal assessments environment in which it operates impacts the market value of its property to prove, with sufficient pro bative evidence, that the specific utility regulatory that may impact the market value of property is insufficient. PSNH needed to Porter, 150 N.H. at 36 p. 7 7. Thus, merely identifying the presence of regulation is to demonstrate that the municipal assessments are disproportionate. See The BTLA correctly noted that PSNH’s burden in a tax abatement appeal

Co. v. New Hampton, 101 N.H. 142, 151 (195 p. 7 7). to be for the public good. See RSA 374:30 (Supp. 2016); see also Public Service a sale and pass acquisition costs to customers provided that it finds such sale customers does not mean that the practice is forbidden. The PUC can approve However, simply because the PUC disfavors passing on acquisition costs to required, and the PUC disfavors passing on acquisition costs to customers. the sale of a utility. PSNH contends that in such a sale, PUC approval is p. 8 8

example, both Tegarden and Dickman made varying discretionary decisions: appraisals, the two unit appraisals were not calculated identically. For that both Tegarden and Dickman used accepted methods to perform unit in a different case. Moreover, it is worth noting that, although PSNH argues their testimony simply because it resemble d testimony that the BTLA accepted Dickman within their unit approaches, the BTLA was not required to accept Similarly, with regard to the specific methods emplo yed by Tegarden and

could properly reject the Tegarden and DRA appraisals in this case. and supported by different testimony has no bearing upon whether the BTLA a different taxpayer, in a different tax year, based upon different appraisals, 37 - 3 p. 8 8. The fact that the BTLA accepted a unit approach in a different case, for BTLA must decide based upon the evidence presented in a given case. Id. at 38. T o the contrary, the credibility of an appraisal is a question of fact that the correct as a matter of law. See Appeal of Pennichuck Water Works, 160 N.H. at held that a single valuation approach or specific combination of approaches is PSNH’s reliance upon these cases is misplaced. First, we have never

N.H. 194 (1990). Nov. 25, 2014) (non - precedential order), and Appeals of Town of Bow & a., 133 0 p. 8 8PT/25123 - 09PT/25539 - 10PT (July 22, 2013), aff’d, No. 2013 - 0613 (N.H. Portland Pipe Line Corp. v. Town of Gorham, N.H. BTLA Nos. 24198 - PSNH argues that the BTLA previously approved unit method appraisals in unit method, which has previously been approved by the BTLA. Specifically, PSNH argues that the BTLA erred by rejecting appraisals that used the

purchaser would be willing to pay more than NBV for PSNH’s property. sales such as the CVEC sale, the BTLA could properly conclude that a probable utility would have to operate. Based upon this testimony, and the cited utility PSNH’s assets, notwithstanding the regulation under which a privately - owned that a probable purchaser of PSNH’s propert y would pay more than NBV for times the NBV of their assets. Sansoucy concluded based upon these sales approach. The purchase price of the sold utilities was between .99 and 3.9 0 Sansoucy al so analyzed eight other utility sales in his sales comparison

acquisition premium through charges to its ratepayers. CVEC’s parent company, meaning PSNH is able to eventually recover that ultimately permitted PSNH to amortize the $21 million payment that it made to In the case of the CVEC acquisition, it is also worth noting that the PUC and not simply equal to the $20,000 that was actually received by the seller. mortgage, that sale is evidence that the market value of the house is $100,000 seller and $ p. 8 80,000 being paid to a bank to ext inguish the seller’s outstanding person paid $100,000 for a house, with $20,000 being paid directly to the debt or acquires the seller’s debt as part of the purchase. For example, if a p. 9 9

Evidence. See RSA 71 - B: 7 (2012); N.H. Admin. Rules, Tax 201.30. from Sansoucy. Moreover, we note that the BTLA is not bound by the New Hampshire Rules of separately and for a higher value. This aspect of the Liberty Report was consistent with testimony upon the Liberty Report only for its conclusion that P SNH’s hydroelectric plants could be sold placed no weight on the actual values contained within the Liberty Report, and instead relied 2013 values and stated that it would give the eviden ce the consideration it deserved. The BTLA consideration of this evidence. The BTLA recognized that any values within the repor t reflected the report was issued after the 2011 and 2012 tax years. We find no error in the BTLA’s PSNH argues that the Liberty Report should have played no role in the BTLA’s decision because 1

his appraisal. T he BTLA criticized Tegarden’s income approach because: (1) he The BTLA also found that Tegarden used a flawed income approach in

Tegarden’s appraisal was flawed. he never considered such a sale, the BTLA could properly conclude that Because of this evidence and Tegarden’s admission on cross - examination that PSNH’s hydroelectric p lants could be sold separately and for a higher value. 1 Liberty Consulting Group, an outside consultant. This report concluded that BTLA admitted into evidence a report prepared jointly by the PUC staff and the construct, and that their market value would greatly exceed their NBV. The these hydroelectric plants, that new hydroelectric plants are expensive t o to PUC approval. He further testified that there would be a robust market for that, in his opinion, PSNH could sell its hydroelectric plants separately, subject Allenstown, 124 N.H. 487, 4 p. 9 90 (1984) (quotation omitted). Sansoucy testified market value, greatest financial return, or the most profit.” Steele v. Town of highest use is defined as the “use which will most likely produce the highest Keene, 122 N.H. 284, 285 (1982) (quot ation omitted); see RSA 75:1. Best and value property at its “best and highest use.” 590 Realty C o., Ltd. v. City of property. To appraise property at its full and true value, an appraiser must did not consider t he possibility of sale of any of the key components of PSNH’s The BTLA found that Tegarden, in his unit appraisals and allocations,

appraisals. The BTLA’s findings are supported by the record. of market value and made specific findings to support its rejection of those that the Tegarden and Dickman appraisals did not r esult in credible opinions and appraisals of Tegarden and Dickman. We disagree. T he BTLA determined PSNH next argues that the BTLA erred by rejecting the specific testimony

persuasiveness of a spec ific appraisal is a question of fact for the BTLA. various discretionary estimates and decisions. This is exactly why the market value. Each appraisal necessarily requires the appraiser to make appraisal that follows accepted methods must yield a credible opinion of to allocate their unit values. Thus, it is illogical to argue that any unit calculated differ ent ratios of external obsolescence, and used different method s they applied different weights to their cost and income approaches, they p. 10 10

many of the same flaws as Tegarden’s appraisals. However, the BTLA also The BTLA found that Dickman’s unit appraisals and allocations had

them. See id. supported by the record and are not erroneous as a matter of law, we uphold B ecause the BTLA’s findings regarding Tegarden ’s appraisals and testimony are by the record, regarding why it rejected Tegar den ’s appraisals and testimony. In sum, the BTLA made numerous, specific findings which are supported

not qualified to appraise portions of PSNH’s property. Taken together, this evidence supports the BTLA’s finding that Tegarden was he allocated to the T own of New Hampton doubled between 2011 and 2012. which is located in New Hampton, and that he could not explain why the value demonstrated little knowledge of PSNH’s Ayers Island Hydroelectric facility, representative sample of PSNH’ s property. The BTLA found that he would turn down a job to appraise such a facility. Tegarden inspected only a that he is not an expert in appraising hydroelectric plants and stated that he proper ty. This finding is supported by the record. Tegarden acknowledged portions of PSNH’s property and criticized his lack of familiarity with the In addition, t he BTLA found Tegarden to be unqualified to appraise

the validity of Tegarden’s cost approach, the BTLA could properly reject it. accurate. Therefore, because there was conflicting expert testimony regarding presented evidence that these methods resulted in market values that were not potential buyer — that Tegarden inadequately supported. The municipalities they were based upon a nother estimate — the rate of return required by a BTLA found his external obsolescence estimates to be high, in part, because company’s strategic considerations at the time it constructed facilities. The d oes not account for conditions of construction costs, inflation rates, and the obsolescence, not to be probative of present market value because original cost BTLA found this approach, adjusted by Tegarden’s estimates of external approach, Tegarden used the OCLBD approach to value PSNH’s property. The The BTLA also found Tegarden’s cost approa ch to be flawed. In his cost

Therefore, the BTLA could properly reject Tegarden’s income approach. municipalities ’ experts testified that Tegarden’s income approach was flawed. See Appeal of Pennichuck Water Works, 160 N.H. at 41. Additionally, the under no obligation to accept the testimony of Tegarden, Dickman, or Heaton. Heaton explained why this approach was correct. However, the BTLA was PSNH argues that this was legally erroneous because Tegarden, Dickman, and proxy for capital expenditures, which led to an overest imation of expenses. for market valuation purposes; and (3) he treated reported depreciation as a expenses or items not typically included in the direct capitalization approach operating income included large expense deductions that were either non - cash did not have specific revenue or expense information; (2) his estimate of net p. 11 11

testimony. B ecause the BTLA’ s findings regarding Dickman ’s appraisal and supported by the record, regarding why it rejected Dickman’s appraisal In sum, the BTLA made numerous, specific findings, which are

the Town of Rumney. T he BTLA could properly credit this evidence. acknowledged in a deposition that his allocation resulte d in errors as applied to in progress in Deerfield to numerous other municipalities, and Dickman even Dickman’s allocation method improperly attributed value for construction work spread across multiple town s. The municipalities also demonstrated that added in one town, Dickman’s allocation method results in that value being municipalities submitted exhibits that demonstrated that when property is testimony and exhibits that supported the BTLA’s finding. For example, the that part lying within its limits”). In contrast, t he municipalities offered exp ert (requiring utility property to “be taxed in each town according to the value of the market value of PSNH’s property in individual towns. See RSA 72:9 The BTLA found that Dickman did not provide an independent opinion of

despite there being no changes to the assets located within th at municipality. the T own of Whitefield increased by $1,000,000 between 20 p. 11 11 and 2012 allocated to individ ual towns, noting, for example, that the value allocated to The BTLA found that this variance had a dramatic effect upon the values equipment f or the specific municipalities where the equipment was located. each municipality and then deducted the value of the pollution control municipality. In 2012, however, he first allocated the unit value of PSNH to from his overall unit value of PSNH before he allocated the unit value to each deduction. In 2011, he deducted the value of the pollution control equipment 2011 and 2012, Dickman changed ho w he allocated this pollution control external obsolescence factor for brand new equipment. Furthermore, between part, because he applied a 30.79% depreciation factor and a 2.01% economic/ provid ed some support, but the BTLA found his explanation not persuasive, in support for the amount that he deducted for 2011. For 2012, Dickman at the coal - fired generation facility in Bow. However, Dickman provided no found that this deduction was largely related to the construction of a scrubber Dickman called “[n] on - taxable, [p] ollution [c] ontrol, etc.” items. The BTLA Dickman made a deduction, which Tegarden di d not make, for what

his weightings shifted over the three tax years to be unpersuasive. to the cost approach in 2012. The BTLA found Dickman ’s explanation for why 80% to th e cost approach in 2010, 90% to the cost approach in 20 p. 11 11, and 95% Dickman shifted how much weight he placed upon each approach each year: combination of the cost and income approaches to valuation. However, Similar to Tegarden ’s unit appraisal, Dickman’s unit appraisal involved a

Dickman’s appraisals did not result in a credi ble opinion of market value. made numerous additional findings supporting its determination that p. 12 12

under which PSNH operates. testimony by Roberge acknowledging his lack of familiarity with t he regulations assessor Roberge’s reliance on the RCNLD approach to value and points to estimates, and reliance on the RCNLD approach to value. PSNH also criticizes testimony of Heaton and Tegarden d iscussing flaws in Sansoucy’s analyses, disproportionately assessed PSNH’s property. PSNH specifically points to that municipal assessor s Sansoucy and Roberge incorrectly and PSNH point s to testimony by Heaton and Te garden that it a rgues demonstrated evidence showing that the municipal assessments were dispropor tionate. municipal assessors’ method s of appraising PSNH’s property, it presented As to the second point, PSNH argues that, beyond simply criticizing the

unnecessary to address such criticisms. carry PSNH’s burden of proving disproportionality. The BTLA therefore fo und it the methods employed by the municipal assessors could not, standing alone, sufficient credible evidence to meet its burden, PSNH’s remaining criticisms of by the record. The BTLA concluded that, bec ause PSNH had not presented and Dickman. As discussed above, the BTLA’s factual findings are supported findings explaining why it rejected the testimony and appraisals of Tegarden disproporti onality. Furthermore, t he BTLA made thorough and specific presented sufficient credible evidence to carry its burden of proving assessments were disproportional. The BTLA determined that PSNH had not taxpayer, PSNH, bears the burden of showing that the municipalities’ With respect to PSNH’s first argument, t he BTLA correctly noted that the

assessments were disproportional. was not purely methodological — that demonstrated that the municipalities’ challenges were methodological only; and (2) PSNH present ed evidence — that did not make specific factual findings to support its co nclusion that PSNH’s the BTLA’s reliance upon that case. Instead, PSNH argues that: (1) the BTLA result.”). PSNH, o n appeal, does not challenge either the validity of Porter or the flawed methodology does not, in and of itself, prove the disproportionate possible that a flawed methodology may lead to a disproportionate tax burden, burden of proving disproportionality. See Porter, 150 N.H. at 36 9 (“While it is that an assess or used flawed methods does not by itself carry a taxpayer’s The BTLA cited our decision in Porter for the proposition that evidence

value. that it did not show that the municipalities’ assessments exceeded market presented only methodological challenges to the m unicipalities’ experts and PSNH next argues that the BTLA erred in determining that PSNH

law, we uphold them. See Appeal of Pennichuck Water Works, 160 N.H. at 41. testimony are supported by the record and are not erroneous as a matter of p. 13 13

DRA’s lower assessed values wh en it serves the municipalities’ interests, as have taken inconsistent positions. The municipalities are not accepting the are “litigants.” Second, PSNH has not demonstrated that the municipalities DRA eq ualization process is not a legal proceeding in which the municipalities and then, subsequently, takes a contrary position. See id. Here, however, the First, the doctrine applies when a party takes a position in a legal proceeding We find the doctrine of judicial estoppel to be inapplicable to th is case.

esto pped.” Id. advantage or impose an unfair detriment on the opposing party if not party seeking to assert an inconsistent position would derive an unfair persuading a court to accept that party’s earlier position; and (3) whether the inconsistent with its earlier position; (2) whet her the party has succeeded in the following three factors: (1) whether the party’s later position is clearly judicial estoppel may be invoked vary with each situation, the court considers moment.” Id. (quotatio n omitted). “While the circumstances under which parties from deliberately changing positions according to the exigencies of the judicial estoppel is “to protect the integrity of the judicial process by prohibiting (quotation, brackets, and ellipsis omitted). The purpose of the doctrine of because its interest s have changed, assume a contrary position.” Id. and succeeds in maintaining that position, it may not thereafter, simply 848 (2005). “Where a party assumes a certain position in a legal proceeding, its common law. See Kelleher v. Marvin Lumber & Cedar Co., 152 N.H. 8 p. 13 13, New Hampshire has adopted the doctrine of judicial estoppel as part of

values to determine PSNH’s share of the municipality’s taxes. mun icipality’s share of county taxes but then use higher local assessment accept the DRA’s lower assessed values for purposes of calculating that DRA’s assessment. PSNH argues that, without estoppel, a municipality can the DRA’s assessed value because the municipalities did not challenge the to bar municipalities from a ssessing PSNH’s property at a value greater th an PSNH also contends that the doctrine of judicial estoppel should operate

150 N.H. at 36 9. Sansoucy and Roberge were not sufficient to change this outcome. See Porter, that any of Heaton’s or Tegarden’s criticisms of the methods employed by demonstrating disproportionality, the BTLA could reasonably have determined witnesses.”). Because it concluded that PSNH failed to carry its burden of evidence of any one witness or group of witnesses, including expert Works, 160 N.H. at 41 (T he trier of fact “is not compelled to accept the opinion specifically rejected this opinion evidence. See Appeal of Pennichuck Water property is less than the amount assessed by those municipalities, the BTLA assessments were disproportionate because the market value of PSNH’s To the extent that Tegarden and Heaton testified that the municipal p. 14 14

the doctrine of quasi estoppel is inapplicab le here. reasonably relied, to its detriment, upon any act or assertion of the municipalities. Accordingly, other party for relying upon that prior renunciation). However, PSNH has not argued that it that he was entitled to a share of that estate because the change in positio n would injure the party who previously renounced and waived his interest in an estate was estopped from asserting Dictionary 669 (10th ed. 20 p. 14 14); see also Farnum v. Bryant, 34 N.H. 9, 22 (1856) (ruling that a assertion if it would harm another who reasonably relied on the act or assertion.” Black’s Law for PSNH. Quasi estoppel is “[a]n equitable doctrine preventing one from repudiating an act or municipalities from assessing PSNH ’s prope rty at a value greater than the DRA’s assessed value PSNH argues that, in addition to judicial estoppel, quasi estoppel should operate to bar the 3 valuations for the purpose of determining a municipality’s share of county taxes. each municipality.” Thus, it is the DRA, not the municipal ities, that is electing to use the DRA’s includes the value of utility property and uses the allocated va lue from its RSA 83 - F appraisal for “[i]n determining a municipality’s equalized valuation for purposes of the county tax, the [DRA] appraisal when determining equalized value.”). In fact, the DRA stated in its amicus brief that (“[N]othing in the plain language of RSA 21 - J:3, XIII prohibits the DRA from using its utility tax its equalization process. See Appeal of Coos County Comm’rs, 166 N.H. 379, 385 (2014) XIII (Supp. 2016). However, the DRA is not required to use the local assessments for purposes of reports, is required to equalize annually the value of the property in the state. See RSA 21 - J:3, must report their local assessments to the DRA. See RSA 21 - J:34, I. The DRA, using these town Each municipality is required to assess the p roperty within its jurisdiction. The municipalities 2

“[e]very member of the community has a right to be protected by it, in the Part I, Article 12 of the New Hampshire Constitution establishes that

Constitution renders those federal claims waived.”). reference in his brief to retrospective laws and vested rights under the Federal 92 (1997) (“[T]he defendant’s failure to devote anything more than passing arguments under the State Constitution only. See State v. Burr, p. 14 142 N.H. 89, conclude that PSNH has waived its federal claims, and we analyze its further reference to the Federal Constitution in its brie f. Accordingly, we Constitution in the “Questions Presented” section of its brief, PSNH made no BTLA’s decision violated Section 1 of the Fourteenth Amendment to the Federal As a preliminary matter, we note that, although PSNH argues that the

municipality’s share of county taxes. significantly greater than the DRA assessments that are used to determine a uniform and proportional by allowing local municipal assessments to be constitutional, and federal c onstitutional requirements that taxation be PSNH next argues that the BTLA violated state statutory, state

Accordingly, the doctrine of judicial estoppel is inapplicable here. 3 assessing taxes against PSNH based upon those local assessed value s. correct market value of PSNH’s property. This positi on is consistent with the municipalities are asserting is that their local assessed values represent the the local assessed values supplied by the municipalities. Thus, the “position” 2 substitutes the allocated values from its RSA chapter 83 - F utility appraisal for values to the DRA. See RSA 21 - J:34, I (2012). It is the DRA that unilaterally PSNH argues. To the contrary, the municipalities submit their local assessed p. 15 15

constitutional or statutory violation. See Appeal of City of Nashua, 138 N.H. disproportionately compared to the other municipal residents, and there is no of county taxes owed by the municipality, PSNH is not being taxed Because PSNH pays the same proportion of local taxes, regardless of the value pay a higher amount of taxes in proportion to the value of their property. municipalities, all property owners in that municipality, including PSNH, would Thus, if the DRA assigned a higher share of county taxes to one of the a municipality would owe to the municipality would also remain unchanged. remain unchanged, the proportion of county taxes that each property owner in Under that circumstance, h owever, because the local utility assessments would municipalities would have been apportioned a higher share of county taxes. used, when determining each municipality’s share of county taxes, these assessment figures, which were generally higher than the values that the DRA PSN H correctly argues that if the DRA had used the local utility

within each municipality. property was being assessed disproportionately compared to other taxpayers share of county taxes. As discussed above, PSNH failed to demonstrate that its that ea ch property owner in the municipality would pay of the municipality’s within its borders. These assessments were used to determine the proportion Each municipality assessed the fair market value of all the property

disagree. of the county tax than other non - utility residents of that municipality. We higher market value for that property, the utility is paying a high er proportion argues that if a municipality thereafter levies taxes upon a utility based upon a in part, based upon the DRA’s RSA chapter 83 - F utility assessments. PSNH As discussed above, a municipality’s shar e of county taxes is calculated,

administered in a practical way.” Id. (quotation omitted). mathematical equality is not obtainable in all respects if taxation is to be some practical inequalities.” Id. (quotation and brackets omitted). “Absolute However, “the demand of constitutional equality in taxation anticipates

....” Sirrell v. State, 146 N.H. 364, 370 (2001). percentage of its true value as all the taxable pr operty in the taxing district CONST. pt. II, art. 5. “Each taxp ayer’s property must be valued at the same residents within, the said state; and upon all estates within the same.” N.H. and reasonable assessments, rates, and taxes, upon all the inhabitants of, and Constitution gr ants the legislature the power to “impose and levy proportional p. 16 166 N.H. 321, 328 (2014) (quotation omitted). Part II, Article 5 of the State each individual’s just share, and no more, shall fall upon him.” Eby v. State, and that taxes must be not merely proportional, but in due proportion, so that article requires that a given class of taxable property be taxed at a uniform ra te his share in the expense of such protection.” N.H. CONST. pt. I, art. 12. “This enjoyment of his life, liberty, and property; he is therefore bound to contribute 16

DALIANIS, C.J.