2016-0354, Richard Polonsky v. Town of Bedford

the brief), for New Hampshire Tax Collectors Association, as amicus curiae. Beaumont & Campbell, P rof. A ss’n., of Salem (Bernard H. Campbell on

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

Courtne y on the brief, and Mr. Mayer orally), for the defendant. Upton & Hatfield, LLP, of Concord (Barton L. Mayer and Michael P.

orally), for the plaintiff. Alfano Law Office, PLLC, of Concord (John F. Hayes on the brief and

No. 2016 - 0354 Hillsborough - northern judicial district

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, Concor d, 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 p. 2 22 as well 2

property without paying taxes. tax deed was recorded on June 8, p. 2 2011. The plaintiff continued to reside in the deed. In May 2011, a ta x deed for the property was issued to the Town. The would “be divested of ownership to [the] property” upon issuance of the tax issued. The notice stated that, if the plaintiff failed to pay the amount due, he In April 2011, the Town notified the plaintiff that a tax deed was to be

The Town notified the plaintiff before each lien was imposed. p. 2 2009, and 2010, tax liens were imposed on his property for each of those years. $300,000. Because the plaintiff failed to pay his real estate taxes in 2008, property in Bedford that, at that time, was assessed at approx imately The relevant facts follow. In 2008, the plaintiff inherited residential

I. Relevant Facts

CONST. pt. I, art. p. 2 23. We affirm in part, reverse in part, and remand. retrospective application of the law. See RSA 80:90, I (f); Laws 2016, 37:2; N.H. 15% to 10% of the property’s assessed value, constitutes an unconstitutional reduced the penalty that the Town may recover when it sells the property from Town contend s that applying the 2016 amendment to RSA 80:90, I(f), which we remanded to the trial court after the appeal and cross - appeal were filed, the costs, and statutory penalty owed (“excess proceeds”). With respect to an issue property’s eventual sale that is in excess of the outstanding taxes, interest, plaintiff m ay bring a claim for any amount the Town recovers from the that, al though the tax deed was recorded more than three years ago, the the three - year period set forth in RSA 80:89, VII (2012) when it determined In its cross - appeal, t he Town asserts that the trial co urt misinterpreted

CONST. pt. I, art. 1 p. 2 2, pt. II, art. 5. constitutes “double taxation” in violation of the State Constitution. See N.H. Town may recover pursuant to RSA 80:90, I(f) (2012) (amended 2016) also asserts that the trial court erred by failing to find that the penalty the required by RSA 80:89, I (2012), did not invalidate the tax deed. The plaintiff provide timely statutory notice to him of its July 2013 “offering for sale,” as the plaintiff argues that the trial court erred in ruling that the Town’s failure to residential property that the Town acquired by tax deed in 2011. On appeal, plaintiff’s petition for injunctive and declaratory relief and to quiet title to (Ruoff, J.) on the parties’ cross - motions for summary judgment as to the the Town o f Bedford (Town), cross - appeals, an order of the Superior Court HICKS, J. T he plaintiff, Richard Polonsky, appeals, and the defendant,

B. Mortell on the brief), for Kathryn an d Zachary Triano, as amici curiae. New Hampshire Legal Assistance, of Claremont (Ruth Heintz and Bennett p. 3 3

to provide excess proceeds to the plaintiff from the property’s eventual sale. terminates three years after the date of such recording, the Town no longer had provides that a former owner’s right to repurchase tax - deeded property because the tax deed was recorded in 2011 and because RSA 80:89, VII sale of the property, including excess proceeds. The Town had argued that, with regard to whether the Town is entitled to retain the full proceeds from the The trial court denied the summary judgment motions of both parties

See N.H. CONST. pt. I, art. 12, pt. II, art. 5. taxpayer constitutes “double taxation” in violation of the State Constitution. plaintiff’s claim that the penalty the Town may recover from a delinquent The trial court also granted summary judgment to the Town on the

201 p. 3 3 [decision] constituted an ‘offering for sale.’” the Town did “n ot appear to contest [the] plaintiff’s claim that the July 17, forth by statute. See RSA 80:89, I. In so ruling, the trial court observed that Town failed to notify him of its decision to sell the property within the time set to the Town on the plaintiff’s claim that the tax deed was invalid because the the instant appeal and cross - appeal, the trial court granted summary judgment The parties filed cross - motions for summary judgment. As pertinent to

brought the instant lawsuit. To date, the Town has not sold the property. passed since the tax deed had been recorded. Shortly thereafter, the plaint iff repurchase the property had terminated because more than three years had was no longer operative. The Town asserted that the plaintiff’s right to determined that its April 2015 notice to the plaintiff had been sent in error and rejection of his proposal. The Town declined to do so. The Town fu rther The plaintiff, through counsel, twice asked the Town to reconsider its

plaintiff’s proposal. and that the Town waive the remaining amounts. T he Town reject ed the propos ed that he purchase the property for only the amount he owed in taxes taxes, $44,187.26 as a penalty, and assorted fees. Thereafter, the plaintiff to repurchase the property, he would be required to pay $49,791.9 p. 3 3 in back property and of his right to repurchase it. The Town informed the plaintiff that In April 2015, the Town again notified the plaintiff of its intent to sell the

on it. thereafter. The plaintiff received that notice in January 201 p. 4 4, but did not act written notice to the Town within p. 3 30 days, with repayment due 15 days that, if he intended to repurchase the property, he was required to provide his right to repurchase it for $90,442.42. The notice informed the plaintiff Town notified the plaintiff of its July 2013 decision to sell the property and of plaintiff’s request and decided to sell the property. In December 2013, t he that the Town forgive additional charges. In July 2013, the Town rejected the On June 12, 2013, the plaintiff offered to pay back taxes, but requested 4

statutory scheme. Id. Absent an ambiguity, we will not look beyond the language in light of the policy or purpose sought to be advanced by the enables us to better discern the legislature ’ s intent and to interpret statutory in isolation, but rather within the context of the statute as a whole. Id. This absurd or unjust result. Id. Moreover, we do not consider words and phrases parts of a sta tute together to effectuate its overall purpose and to avoid an add language that the legislature did not see fit to include. Id. We construe all statute as written and will not consider what the legislature might have said or to it s plain and ordinary meaning. Id. We interpret legislative intent from the language of the statute itself, and, if possible, construe that language according a whole. Petition of Carrier, 165 N.H. 719, 721 (2013). We first look to the intent of the legislature as expressed in the words of the statute considered as In matters of statutory interpretation, we are the final arbiter of the

novo. See Wells Fargo Bank v. Schultz, 16 p. 4 4 N.H. 608, 610 (2013). 445, 451 (2012). We also review the trial court’s statutory interpretation de court’ s application of the law to th e facts de novo. Cloutier v. State, 163 N.H. then we will affirm the grant of summary judgment. Id. We review the trial material fact and if the moving party is entitled to judgment as a matter of law, 282 (2013). If our review of that evidence discloses no genuine issue of matter of law. Granite State Mgmt. & Res. v. City of Concord, 165 N.H. 277, exists, we determine whether the moving party is entitled to judgment as a its capacity as the nonmoving party and, if no genuine issue of material fact judgment, we consider the evidence in the light most favorable to each party in In reviewing the trial court’ s rulings on cross - motions for summary

II. Standards of Review

ch. 37. under Part I, Artic le 23 of the New Hampshire Constitution. See Laws 2016, the 2016 amendment to RSA 80: 90, I(f) does not violate the Town’s rights d oes not apply to this case. The trial court further determined that applying remand, the trial court determined that the 2016 amendment to RSA 80:89, II (amended 2016) and RSA 80:90, I(f) on this case. See Laws 2016, ch. 37. On address the i mpact, if any, of 2016 amendments to RSA 80:89, II (2012) Before this case was orally argued, we remanded it for the trial court to

court’s order, and this appeal and cross - appeal followed. argument. Both parties moved unsuccessfully for reconsideration of the trial statutory interpretation and, therefore, did not address his alternative 12 of the State Constitutio n. The trial court agreed with the plaintiff’s them results in a t aking without just compensation in violation of Part I, Article 80:89, VII bars his recovery of the excess proceeds, his inability to recover a claim for the excess proceeds. Alternatively, he had argued that, if RSA The plaintiff had countered that RSA 80:89, VII does not bar him from bringing p. 5 5

and distribute proceeds pursuant to RSA 80:88 and to the owner’s right of plain meaning, RSA 80:89, VII applies to the d uty of a municipality to notify The trial court agreed with the plaintiff, concluding that, according to its

argues that the opposite is true. excess proceeds that the Town may realize once it sells his property. The Town not foreclosed by RSA 80:89, VII from bringing a future action to recover any years after the da te of recording of the deed.” The plaintiff contends that he is the former owners’ right of repurchase under this section shall terminate 3 to notify former owners and distribute proceeds pursuant to RSA 80:88, and was recorded in 2011. RSA 80:89, VII provides: “The duty of the municipality though the sale will necessarily take plac e more than three years after the deed may recover excess proceeds from the eventual sale of the property even We next address whether, consistent with RSA 80:89, VII, the plaintiff

Proceeds Following the Future Sale of the Property 1. Whether the Plaintiff is Barred From Recovering Excess

p. 5 556, 571 - 72, 579, 605 (1876). (1890); Weeks v. Waldron, 64 N.H. 149, 151 (1886); Cahoon v. Coe, 57 N.H. Griffin, 68 N.H. 183, 184 (1894); Savings Bank v. Alger, 66 N.H. 414, 415 - 16 “offering for sale” invalidates a previously - issued tax deed. See Derry Ba nk v. procedure was enacted, do not establish that a defect in the notice of an reliance is misplaced. Those cases, decided long before the alternate tax lien invalidated tax sales under the tax sale system as it existed in the 1800s, his To the extent that the plaintiff relies upon cases in which we have

N. H. 742 (1990), do not, in fact, support it. v. Ross, 99 N.H. 299 (19 p. 5 54), and Drop Anchor Realty Trust v. Ouellette, 133 is mistaken. T he cases upon which he relies to s upport this assert ion, Rivard where the notice of a tax sale did not comply with statutory requirements,” he reply brief, the plaintiff assert s, “Courts in this state have invalidated tax deeds support for this proposition, and we are not aware o f any. Although, in his proceedings.” (Bolding omitted.) The plaintiff has not cited any relevant as required by RSA 80:89, I, “warranted the invalidation of the tax deeding him at least 90 days before its July 2013 decision to offer the property for sale, We first address the plaintiff’s argument that the Town’s failure to notify

A. The Town’s Failure to Notify the Plaintiff of the Offering for Sale

I II. Analysis

170 N.H. 118, 120 (2017). language of the statute to discern legislative intent. seg TEL v. City of Nashua, p. 6 6

whatsoever to any former owner. . . for the amount of consideration received complied with the provisions of this chapter[,] it shall not have any liability respect to the excess proceeds. See id. (providing that, “if the municipality has 80:89, VII has expired, the municipality has no duty to the former owner with The scheme further provides that, o nce th e three - year period in RSA

any sale must be accounted for as provided in RSA 80:88” (emphasis added)). . . . , without any accountability to former owners, except that the proceeds of municipality may treat the property in all respects as the fee owner thereof recorded. See RSA 80:91 (providing that, after the tax deed is executed, “the former owner), and that this statutory duty expires three years after the deed is proceeds into court by filing an interpleader or to pay them directly to the proceeds is to d istribute them according to RSA 80:88 (to pay the excess makes clear that the municipality’s only statutory duty with respect to excess excess proceeds after the three - year period has expired. RSA 80:91 (2012) statutory scheme, which does not provide a former owner with a claim for The trial court’s interpretation conflicts with the plain lan guage of the

80:89, VII has elapsed. municipality to recover excess proceeds after the three - year period in RSA statutory scheme to allow a former owner to bring a claim against a claim for excess proceeds. In other words, the trial co urt construed the and does not limit the time within which a former property owner may bring a interpleader with the [trial court] three years after the tax deed is recorded,” constitutional, the statute “merely re move[s] the Town’s duty to file a bill of Thus, the trial court determined that, to construe the statute to be

that “[t]his certainly bears the appearance of an unconstitutional taking.” at least $ 200,000 that would otherwise go to [the] plaintiff.” The court stated taxes, penalties, and costs is approximately $95,000, the Town “seeks to retain approximately $300,000 and the amount owed by the property owner in back that, in this case, where the subject property had been assessed in 2008 at municipality without recourse for the former owner.” The t rial court noted statutory interpretation “would result in significant windfalls to the “declined to find the statute unconstitutional,” it observed that the Town’s conflict with constitutional right s whe r ever possible”). Although the trial court statutory construction that a legislative enactment will be construed to avoid Smagula, 117 N.H. p. 6 663, 666 (1977) (explaining that “[i]t is a basic principle of interpretations, o ne making it c onstitutional and the other not.” S ee State v. Th e trial court then decided that the statutory scheme was “open to two

repurchase.” proceeds pursuant to RSA 80:88,” and “the former owners’ right of municipality to notify former owners,” the municipality’s duty to “distribute plain meaning of the words used, RSA 80:89, VII pertains to “[t]he duty of the repurchase. In so concluding, the trial court was correct. According to the p. 7 7

“continuing int erest” in the excess proceeds entitles the municipality to retain them. claim under the statutes to any of the proceeds of a sale. Accordingly, the municipality’s after the three - year period in RSA 80:89, VII has expired, the former owner no longer has a valid property of the municipality. RSA 80:88, II(d). The statutes discussed in text make clear that that upon default of valid claims made by other parties, the excess proceeds shall become the (2012) makes clear that a municipality retains a “continuing interest” in all of the proceeds, and Although this section limits the municipality’s “recovery” of proceeds upon a sale, RSA 80:88 proceeds shall be limited to back taxes, interest, costs and penalty, as defined in RSA 80:90.” provision of law,” for any sale of property acquired by a tax deed, “the municipality’s recovery of The trial court relied upon RSA 80:88, I (2012), which provides that “[n] otwithstanding any other 1

is required to make the statutes constitutional, we should rule that a former current statutory sc heme is constitutional, argues in its brief that if a remedy taking.” We further note that the Town, while taking the position that the court opined that “[t]his certainly bears the appearance of an unconstitutional windfalls to the municipality without recourse for the former owner.” The trial three years in order to retain their full value. This would result in significant incentivize municipalities to simply hold onto properties taken by tax deed for of the statutes that we today hold is required by their plain language “would We note that the trial court indicated its concern that the interpretation

p. 7 721. plain meaning of the applicable statutes. See Petition of Carrier, 165 N.H. at statute in a way that contravenes the legislature’s intent as expressed in the Accordingly, we conclude that the trial court erred by, in effect, rewriting the possible” because it conflicts with the express terms of the statute. (quotation omitted). The trial court’s construction in this case is not “fairly the statute is fairly possible by which the question may be avoided.” Id. doubt - resolve r s, useful when the language is ambiguous and a construction of meaning is a reason to construe, not to rewrite or ‘improve’.” Id. “Canons are 1312, 1318 (7th Cir. 1990). “A preference for giving statutes a constitutional “disregarding unambiguous language.” United States v. Marshall, 908 F.2d preference for avoiding constitutional adjudication” does not justify rewrite the language enacted by the legislature” (ci ting cases)). “[T]he (2015) (the canon of constitutional doubt “is not a license for the judiciary to (emphasis added); see also 16 C.J.S. Constitutional Law § 248, at 302 & n.18 problems unless such construction is plainly contrary to [legislative] intent”) constitut ional problems, the Court will construe the statute to avoid such “where an otherwise acceptable construction of a statute would raise serious v. Fla. Gulf Coast Trade Council, 485 U.S. 568, 575 (1988) (explaining that doubt, upon which the trial court relied, does not apply. See DeBartolo Corp. In light of the plain meaning of the statutes, the canon of constitutional

three - year period has elapsed. 1 allow a former owner to recover excess proceeds from a municipality after the express language of the pertinent statutes, the legislature did not intend to upon disposition of the property.” (emphases added)). Thus, according t o t he p. 8 8

likely entail additional fact finding. Thus, we conclude that the trial court clai m, having reviewed those brie fs, we believe that resolving that claim will for supplemental briefing and solicited amicus briefs on the plaintiff’s takings the plaintiff’s claim is barred by the statute of limitations. Although we asked also not addressed t he Town’s affirmative defenses, such as its contention that his ability to convey that right affects the takings analysis. The trial court has repurchase the property within the statutory three - year period and, if so, how court has not addressed whether the plaintiff could convey his right to compensation” under the New Hampshire Constitution. Moreover, the trial taking or, if he did, whether the compensation received constitute d “just taking occurred, whether the plaintiff received any compensation for th at consent or, if so, when the taking occurred. Nor has the court addressed, if a the plaintiff has a vested property right that was taken from him without his its statutory interpretation. Thus, the trial court has not addressed whether As noted above, the trial court did not decide the takings issue in light of

. . . without his own consent.” N.H. CONST. pt. I, art. 12. Constitution provides that “no part of a man’s property shall be taken from him violation of Part I, Article 12 of the State Constitution. The New Hampshire the property’s future sale results in a t aking without just compensation in The plaintiff argues that his inability to recover the excess proceeds from

2. “Takings” Issue

constitutional limitations, to amend them). legislature disagrees with our construction of statutes, it is free, subject to warranted. See Hogan v. Pat’s Peak Skiing, LLC, 16 p. 8 8 N.H. 71, 75 (2015) (if whether amendments to the statutory scheme are either necessary or nothing in this opinion is intended to prevent the legislature from considering consider the constitutional issues raised by the facts of this particular case, society’s best interests). Thus, while we remand this case for the trial court to institutionally better equipped to decide whether adopting new privilege is in (Issued July 10, 2006), 155 N.H. 557, 562 (2007) (stating that legislature is determine what any such changes should be. Cf. In re Grand Jury Subpoena legislature). Moreover, the legislature is institutionally better equipped to 632, 645 (2007) (stating matters of public policy are r eserved for the legislature, rather than this court, to make. See Petition of Kilton, 156 N.H. to what changes should be made may involve policy judgments that are for the to the statutory scheme are either necessary or warranted, then the decision as disagrees with our construction of the statutes, or if it determines that changes remedy any constitutional defect. Rather, we simply note that if the legislature prop erty without just compensation, the Town’s suggested approach would are constitutional, or whether, if the current statutes do permit the taking of opinion as to whether the current statutes as we have construed them today the municipality to sell the property. As explained below, we express no owner may act within three years after the recording of the tax deed to compel p. 9 9

See Hughes, 152 N.H. at 35. need at this time to decide this constitutional issue, and we declin e to do so. have concluded that the trial court erred in its statutory analysis, we have no Constitution. See N.H. CONST. pt. I, art. 12, pt. II, art. 5. Again, because we RSA 80: p. 9 90, I(f) constitutes “double taxation” in violation of the State Finally, we turn to the plaintiff’s contention that the penalty allowed by

2. Double Taxation

on constitutional grounds only when necessary.”). Hughes v. N.H. Div. of Aeronautics, 152 N.H. 30, 35 (2005) (“We decide cases sale occur. We, therefore, decline to address this constitutional issue. See at this time to decide what the amount of the penalty would be should such a should the Town sell the property in the future. Accordingly, we have no need VII does not bar the plaintiff from bringing a claim for the excess proceeds We have concluded that the trial court erred in its ruling that RSA 80:8 p. 9 9,

L aws 2016, 37:2. i n 2016, the penalty was decrea sed to 10% of t he property’s assessed value, see penalty was equal to 15% o f the property’s assessed value, see RSA 80: p. 9 90, I(f); RSA 80:90, I. Before RSA 80:90, I(f) was amended in 2016, the additional based u pon the property’s assessed value as of the date of the tax deed. See incurred incidental and consequential costs; and (6) an additional penalty taxes; (2) statutory interest; (3) statutory fees; (4) legal costs; (5) reasonably in the phrase “back taxes, int erest, costs and penalty” are: (1) the unpaid interest, costs and penalty, as defined in RSA 80:90.” RSA 80:88, I. I ncluded municipality’s recovery of proceeds from the sale shall be limited to back taxes, sale by a municipality of property which is acquired by tax deed . . . , the property. It provides: “Notwithstanding any o ther provisions of law, for any concerns the amounts a municipality may recover upon selling a tax - deeded and penalty” as that phrase is used in RSA 80:88, I (2012). RSA 80:88, I, 2016) defines the amounts included in the phrase “back taxes, interest, costs of the law. See N.H. CONST. pt. I, art. 23. RSA 80:90, I (2012) (amended I(f) to this case, would constitute an unconstitutional retrospective application We next consider whether applying the 2016 amendment to RSA 80:90,

1. Application of 2 016 Amendment

C. RSA 80: p. 9 90, I(f)

resolution in the first instance.”). additional factual findings, we remand this issue to the trial court for not address the parties ’ arguments and because resolving them may require Matter of Clark & Clark, 154 N.H. 420, 426 (2006) (“Because the trial court did should resolve the plaintiff’s takings claim in the first instance. See In the p. 10 10

DALIANIS, C.J.