2018-0570, Northern New England Telephone Operations, LLC d/b/a FairPoint Communications - NNE v. Town of Acworth

Town of Hanover (Towns), appeal t wo o rders of the Superior Court (McNamara, established for this litigation, the defendants, the Town of Durham and the disproportionate taxation. As “representative municipalities” in the “test cases” Hampshire towns and cities, asserting claims of ultra vires taxation and LLC d/b/a FairPoint Communications - NNE (FairPoint), against several New actions brought by the plaintiff, Northern New England Telephone Operations, HICKS, J. This appeal arises from a consolidated case that encompasses

defendant s. Spector - Morgan on the brief, and Ms. Spector - Morgan orally), for the Mitchell Municipal Group, P.A., of Laconia (Walter L. Mitchell and L aura

(Matthew R. Johnson on the brief and orally), for the plaintiff. Devine, Millimet & Branch, P rofessional A ssociation, of Manchester

d/b/a FAIRPOINT COMMUN I CATIONS - NNE

No. 2018 - 0570 Merrimack

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

occupation of municipal rights - of - way. In May p. 2 2014, the s uperior c ourt years’ worth of tax assessments on its poles and conduit s, and on its use or FairPoint sued a number of municipalities, seeking abatement of several

and towns); see RSA 7 p. 2 2:6. 72:23, I (2012) (amended 2017, 2018, 2020) (applying with equal effect to cities the payment of properly assessed. . . property taxes” by the other party. RSA the lease or other agreement authorizing such use or occupation “provide for on another ’ s use or occupation of municipal rights - of - way when the terms of regard to the second type of tax, municipalities can also impose property tax es is situated.” RSA 72:8 - a (2012) (amended 201 6); see RSA 72:6 (2012). In services. . . as real estate in the town in which such property or any part of it towers, and conduits employed in the transmission of telecommunication. . . respect to the first, municipalities are permitted to tax “a ll structures, poles, municipal rights - of - way. A statutory framework governs each type of tax. With conduit s; and (2) a tax on the value of FairPoint’s use or occupation of two types of property taxes: (1) a tax on the value of FairPoint’s poles and This litigation involves disputes over the valuation of property relevant to

municipality for recording purposes. RSA p. 2 231:160 - a (2009). licensed” provided that specified documentation is submitted to the subsequently becomes a public highway are “deemed legally permitted or structures, conduits, cables, or wires existing in, under, or across land that procedural licensing requirements of RSA 231:161, previously approved poles, license. See RSA 231:161; King, 126 N.H. at 284. As an exception to the RSA 231:161 sets out the procedure for acquiring the required permit or municipality. RSA 231:160 (2009), :161 (2009); see King, 126 N.H. at 284. municipa l rights - of - way, a permit or license is required from the relevant any such poles, structures, conduits, cables, or wires in, under, or across Town of Lyme, 126 N.H. 279, 283 - 84 (1985). To erect, install, and maintain municipal rights - of - way is governed by a statutory framework. S ee King v. Hampshire. The placement of th ese type s of property in, under, or across conduit s, and other related property located in many municipalities in New As a provider of telecommunications services, FairPoint owns poles,

p. 2 2011 respectively. We affirm in part, reverse in part, and reman d. from the Town of Durham and the Town of Hanover for tax years 201 p. 3 3 and concluding that FairPoint was entitled to abatement s of its tax assessment s court’s decision after trial, argu ing that the court committed several errors in (2012) (amended 2017, 2018, 2020). The Towns also challenge the superior such use or occupation did not satisfy the requirements of RSA 72:23, I(b) way in certain test cases w as ultra vires because the agreements authorizing ruling that the taxation of Fair P oint’s use or occupation of municipal rights - of - J.). The Towns challenge the superior court’s order on summary judgment, 3

FairPoint’s poles and conduit s, and the valuation of its use or occupation of the abatement. The critical issue s for trial were how to determine the valuation o f 2011 tax year in Hanover, and the 201 p. 3 3 tax year in Durham — warranted as test cases for trial to determine whether specific tax assessments — for the In Phase 2, the T owns of Durham and Hanover, inter alia, were chosen

occupation of the municipalities’ rights - of - way. appropriate for exp erts to use in valuing the plaintiff’s property” a nd its use or “consider the ultra vires issue [s] as well as the issue of what methodology is provide the New Hampshire Supreme Court with an appropriate record” to superior court schedule d a bench trial for selected test cases “in order to “relatively small number” of the pending cases settled after Phase 1, the of RSA 72:2 p. 3 3, I, to licenses arising under RSA 231:160 - a. Noting that o nly a including furt her analysis of the perpetual lease argument and the application reconsideration, expanding upon certain parts of its previous o rde r in doing so, The superior court largely denied the municipalities’ motions for

of RSA 72:2 p. 3 3, I(b) tax - shifting language.” is “taxable under RSA 72:6 and RSA 73:10 [(2012)] regardless of the presence occupation of municipal rights - of - way is, in substance, a perpetual lease that language.” Moreover, it rejected the argument that FairPoint’s use or licenses “do[] not automatically include the statutorily required tax - shifting RSA 72:23, I, applies to licenses arising under RSA 231:160 - a, and that such use or occupation of municipal rights - of - way. The court ruled, inter alia, that judgment to FairPoint on most of its claims of ultra vires taxation related to its Following a hearing on the motions, the superior court granted summary

RSA 72:2 p. 3 3, I, did not preclude taxation in the various test - case scenarios. and filed cross - motion s for summary judgment, making several arguments that failed to comply with RSA 72:23, I (b). T he test - case municipalities objected and/or its use or occupation of municipal rights - of - way, because they had Town of Durham, acted ultra vires in assessing taxes on its poles and conduit s, eight test cases, arguing that the representative municipalities, including the municipality’s taxation of FairPoint. FairPoint moved for summary judgment i n way ultra vires. The parties stipulated to the historical facts relevant to each municipality’s taxation of FairPoint ’s use or occupation of municipal rights - of comply with the requirements set forth in RSA 72:23, I(b) rendered the In Phase 1, the central issue was whet her a municipality’s failure to

abatement. whether specific tax assessments were disproportionate and required judgment, and Phase 2, taking selected test cases to trial on the issue of vires taxation based upon the interpretation of relevant statutes at summary case proceeded in two phases: Phase 1, evaluat ing FairPoint ’s claims of ultra towns and cities would act as “representative municipalities.” The consolidated consolidated FairPoint’s actions into a “test case” structure in which certain p. 4 4

of the overall statutory scheme and not in isolation. Carr v. Town of New absurd or unjust result. Id. Furthermo re, we interpret statutes in the context parts of a statute together to effectuate its overall purpose and to avoid an legislature did not see fit to include. Polo nsky, 171 N.H. at 93. We construe all not consider what the legislature might have said or add language that the 21:2 (2020). We interpret legislative intent from the statute as written and will construe that language according to its plain and ordinary meaning. Id.; RSA a whole. Id. We first look to the language of the statute itself, and, if possible, 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

the law to the facts de novo. Id. grant of summary judgment. Id. We review the superior court’ s application of moving party is entitled to judgment as a matter of law, then we will affirm the review of that evidence discloses no genuine issue of material fact and if the matter of law. Polonsky v. Town of Bedford, 171 N.H. 89, 93 (2 018). If our 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 superior court’s rulings on cross - motions for summary

and, on the merits, we agree with the Towns. was addressed by the trial court. We conclude that it is properly before us, The first argument was raised below as part of the Phase 1 litigation and

rights - of - way, “in substance,” constitutes a perpetual lease. language as a matter of law; and (2) FairPoint’s use or occupation of municipal I(b) because: (1) licenses arising under RSA 231:160 - a contain the required without the express inclusion of tax - shifting language pursuant to RSA 72:23, that the superior court erred in ruling that such taxation was ultra vires of FairPoint’s use or occupation of municipal rights - of - way. T he Towns argue the two types of property taxes implicated by this case — the tax on the value The disputes on appeal pertaining to Phase 1 involve only the second of

superior court on summary judgment in Phase 1. address the Towns’ arguments on the ultra vires issues resolved by the of RSA 72:23, I, by the superior court to the test cases in Phase 1. We first assessments at issue in the Phase 2 trial and also appeal certain applications The T own s appeal the superior court’s decision abating their tax

trial court denied. years in question. The T owns, inter alia, moved for reconsideration, which the concluded that FairPoint was entitled to abatement s from the Town s for the tax municipal rights - of - way. After the trial in April 2018, the s uperior court p. 5 5

utilities’ easements, work plans, or other data showing locations of und er this subdivision; provided, that copies of the appropriate deemed legally permitted or licensed without further proceedings board..., shall, if such location becomes a public highway, be which have already been approved by the local land use Any poles, structures, conduits, cables or wires, the location of

RSA 231:160 - a provides:

N.H. 763, 774 (2018). mandatory requirements. See Appeal of Algonquin Gas Transmission, 170 payment of taxes. Id. The use of the word “shall” demonstrates that these are license, and “shall” clearly s tate the licensee’s obligations regarding the provision that failure to pay the taxes when due shall be cause to terminate the occupying such property.” Id. In addition, any such license “shall” include a properly assessed real and personal property taxes by the party using or I(b), any license arising under RSA 231:160 - a “shall provide for the payment of agreements” for purposes of RSA 72:23, I(b). Thus, pursuant to RSA 72:23, deciding, that licenses arising under RSA 231:160 - a constitute “other RSA 72:23, I(b). Because no party argues otherwise, w e will assume, without

structures or improvements added by the lessee. lessee has an obligation to pay real and personal property taxes on real and personal property taxes, and shall also state whether the obligations regarding the payment of both curr ent and potential into on or after January 1, 1994, shall clearly state the lessee’s agreement by the lessor.” All such leases and agreements entered estate taxes when due shall be cause to terminate said lease or “failure of the lessee to pay the duly assessed perso nal and real All such leases and agreements shall include a provision that using or occupying said property no later than the due date.... properly assessed real and personal property taxes by the party entered into after July 1, 1979, shall provide for the pa yment of by the state or a city, town, school district, or village district, the use or occupation by others of real or personal property owned All leases and other agreements, the terms of which provide for

pertinent part: During the relevant ti mes in this case, RSA 72:23, I(b) provided in

segTEL v. City of Nashua, 170 N.H. 118, 120 (2017). need not look beyond the language of the statute to discern legislative intent. advanced by the entire statutory scheme. Id. at 14. Absent an ambiguity, we legislature’s intent in enacting them and in light of the policy sought to be London, 170 N.H. 10, 13 - 14 (2017). Our goal is to apply statutes in light of the p. 6 6

comprises RSA 231: 159 (2009) t hrough RSA 231:182 (2009). The subdivision at issue is entitled “Lines of Telegraph and Other Companies in Highways,” and 1

reflectors thereon. Such designation and definition of location may may include reasonable requirements concerning the placement of poles from the edge of the traveled roadway or of the s idewalk, and highway, and in their discretion the approximate distance of such wires above and of conduits and cables below the surface of the location of such poles and structures and the minimum distance of the maximum and minimum height of structures, the approxi mate designate and define the maximum and minimum length of poles, V. Provision of Licenses. The selectmen in such license shall

structures, conduits, cables or wires described in the petition. license for erecting and installing or maintaining the poles, wires. If the public good requires, the selectmen shall grant a grant a license for such poles, structures, conduits, cables or IV. Licenses. The petitioner may petition such selectmen to

....

agents as they may duly appoint. conferred upon them by the provisions of this section to such are hereby authorized to delegate all or any part of the powers selectmen of the town in which such highway is located; and they concerning town maintained highways shall be addressed to the (a) Town Maintained Highways. Petitions for such... licenses

I. Jurisdiction.

therefor in accordance with the following procedure: under or across any such highway, shall secure a... license or install any such poles, str uctures, conduits, cables or wires in, Any such person, copartnership or corporation desiring to erect

which provides, in part: poles, structure s, conduits, and related property is set forth in RSA 231:1 p. 6 61, becomes a public highway. The usual procedure for obtaining a license for poles, structures, conduits, and related property and that location then applies when a local land use board has previously approved the location of licensed” without further proceedings under the subdivision. Section 160 - a 1 structures, conduits, and related property shall “be deemed legally... RSA 231:160 - a (emphasis added). RSA 231:160 - a p rovides that certain poles,

purposes. such structures, are submitted to the municipality for recording p. 7 7

license to bring it into compliance with RSA p. 7 72:23, I(b). See N.E. Tel. & Tel. Co. required to initiate a proceeding under RSA 231:163 to amend the deemed using or occupying the municipality’s property, the municipality would then be payment of properly assessed real and personal property taxes by the party I(b). Because RSA 72:23, I(b) mandates that any such license provide for the utility would receive a “deemed” license that fails to comply with RSA 72:23, is not deemed to contain the provisions set forth in RSA 72:23, I(b), then the If, as the trial court ruled, a license obtained pursuant to RSA 231:160 - a

p. 7 72:23, I(b). Id.; RSA 231:160 - a; see RSA 72:23, I(b). licensed in a manner that com plies with the mandatory requirements of RSA structures, conduits, and related property at issue must be deemed to be licensed,” that is, to be licensed “in accordance with the law,” the poles, Third New International Dictionary, supra. Thus, to be deemed “legally... requirements of RSA 72:23, I(b) is not “in accordance with the law.” Webster ’s taxes. See RSA 72:23, I(b). A license that does not comply with the mandatory regardi ng the payment of both current and potential real and personal property cause to terminate the license, and must clearly state the licensee’s obligations to pay the duly assessed personal and real estate taxes when due shall be property.” In addition, any such license must include a provision that failure real and personal property taxes by the party using or oc cupying such mandates that any such license “provide for the payment of properly assessed Dictionary 1290 (unabridged ed. 2002). As explained above, RSA 72:23, I(b) manner: in accordance with the law.” Webster ’s Third New International subdivision.” RSA 231:160 - a. The plain meaning of “legally” is “in a l egal deemed “legally... licensed without furthe r proceedings under this statute provides that poles, structures, conduits, and related property are to be The plain language of RSA 231:160 - a resolves the issue before us. The

conditions of any such license, whenever the public good requires. hearing, may from time to time revoke or change the terms and require s. The selectmen, after notice to any such licensee and selectmen may make such alterations therein as the public good in the terms thereof; and after notice to the parties and hearing, the affected by any such license may petition the selectmen for changes Any such licens ee or any person whose rights or interests are

which states: Finally, the procedure for amending a license is set forth in RSA 231:163,

petition or license. be by reference to a map or plan filed with or attached to the p. 8 8

substance, perpetual leases, the only licenses we may properly review on individual licenses authorizing FairPoint’s use or occupation were not, in omitted.) To the extent the Towns claim that the court erred in finding that to an independently taxable property interest.” (Bolding and capitalization municipal rights - of - way was “not pursuant to a perpetual leas e that gave rise that the court erred in determining that FairPoint’s use or occupation of The Towns’ second challenge to the superior court’s Phase 1 order argues

judgment to FairPoint to the extent that it ruled to the contrary. with RSA 72:23, I(b). We reverse the superior court ’s grant of summary RSA 231:160 - a must be deemed to have obtained a license that also complies license under RSA 231:161, a utility that receives a “deemed” license under utility to be put in the same position it would have been in had it applied for a a license that complies with RSA 72:23, I(b). Accordingly, in order for the to presume that a utility that obtains a license under RSA 231:161 will obtain of regularity attending actions of an administrative agency). Thus, it is proper duties); Appeal of Lathrop, 122 N.H. 262, 265 (19 p. 8 82) (recognizing presumption courts presume that public officers have properly discharged their official 272 U.S. 1, 14 - 15 (1926) (stating that absent clear evidence to the contrary, requirements of RSA 72:23, I(b). Cf. United States v. Chemical Foundation, municipality will comply with the law, including complying with the under RSA 231:161, it is proper to presume tha t in granting the license, the with a license application. RSA 231:160 - a. When a utility applies for a license 231:161, and the municipality avoids the expense and time necessary to deal utility avoids the expense and time necessary to file an application under RSA thereby having its poles and structures deemed “legally... licensed,” the showing locations of its structures to the municipality for recording and 231:160 - a. By submitting copies of easements, work plans, or other data under RSA 231:161, without the need for further pr oceedings. See RSA utility in the same position it would have been had it applied for a license purpose of the statute. The obvious purpose of RSA 231:160 - a is to place the we note that the trial court’s c onstruction of the statute also is contrary to the Although the plain language of the statute suffices to resolve the issue,

compliance with the law. RSA 231:160 - a; see RSA 72:23, I(b). license obtained under RSA 231:160 - a in order to bring the license into undertake further proceedings under the subdivision to amend any deemed court’s construction of the statute, municipalities would be required to licensed without further proceedings under the subdivision, under t he trial states that the poles, structures, and related property are to be deemed legally “deemed” license to comply with the law. Thus, while RSA 231:160 - a plainly municipality must provide notice and a hearing in order to amend the [City] to implement them” (emphasis added)). Under RSA 231:163, a provisions required by RSA 72:23, I(b) because “RSA 72:23, I(b) requires the of Rochester’s amendment pur suant to RSA 231:163 of utility’s license to add v. City of Rochester, 144 N.H. 11 p. 8 8, 11 p. 9 9 - 22 (1999) (Rochester I) (upholding City 9

to “unilaterally terminate a utility’s use of municipal rights - of - way.” (Emphasis Commission, and case law that, they contend, all limit a municipality’s ability other statutory provisions, rul es of the New Hampshire Public Utilities In support of their argument, the Towns reference RSA 231:163 and

requirements of RSA 72:23, I. Rochester I, 144 N.H. at 121 - 22. conduits, and related property in public rights - of - way, are subject to the 231:161, authorizing the installation and maintenance of telephone poles, p. 9 93. Furthermore, we have expressly held that licenses arising under RSA perpetual leasehold. See RSA 231:160 - a, :161; see also Polonsky, 171 N.H. at or occupation of public rights - of - way via a license (or a permit) rather than a exhibit the legislature’s intent to authorize a telecommunications provider’s use placement of poles, conduits, and related property in public highways, plainly RSA 231:161 and RSA 231:160 - a, which relate specifically to the

Towns’ argument. our case law inte rpreting it, and the plain language of RSA 72:23 contradict the language required by RSA 72:23, I(b). The plain language of RSA chapter 231, court erred in concluding that taxation of FairPoint was ultra vires without the owned property to trigger RSA 72:23, I. Therefore, they argue, the superior taxation purposes,” meaning there is no use or occupation of municipal ly FairPoint is “the owner of its interest in the public rights - of - way for property municipal rights - of - way is properly characterized as a perpetual lease, The Towns assert that because FairPoint’s use or occupation of

but see Appeal of Reid, 143 N.H. at 24 p. 9 9 - 50, we disagree. extent we can consider this argument in the absence of a particular agreement, contain the tax - shifting language of RSA 72:23, I, to authorize taxation. To the and, therefore, any agreements authorizing such use or occupation need n ot conduits, and related property constitutes a perpetual lease as a matter of law, occupation of municipal rights - of - way as an owner of telephone poles, any particular agreement with FairPoint, the nature of FairPoint’s use or Nevertheless, we understand the Towns to argue that, independent of

itself). perpetual lease must begin with a review of the language of the agreement (1 p. 9 998) (expl aining that an analysis of whether an agreement constitutes a briefed are waived on appeal); see also Appeal of Reid, 143 N.H. 246, 249 - 50 Dir., N.H. Charitable Trusts Unit, 169 N.H. 95, p. 10 102 (2016) (arguments not accordingly, we deem any such arguments waived. See N.H. Right to Life v. their particular agreements with FairPoint in fact constitute perpetual leases; sua sponte). We do not read the Towns’ arguments on appeal to assert that Duncan v. State, 166 N.H. 630, 640 (2014) (issues of standing may be raised (as a general rule, parties do not have standing to assert the rights of another); and the Town of Hanover. See ACG Credit Co. v. Gill, 152 N.H. 260, 264 (2005) appeal are those between FairPoint and the Town of Durham, and FairPoint 10

renewed indefinitely.’” Id. at 250 (brackets omitted). was clear that . . . [the] leases have been renewed for lengthy periods and woul d continue to be Appeals erred in “apparently rel[ying] solely on extrinsic evidence in determining that ‘the evidence agreements. Appeal of Reid, 143 N.H. at 249 - 50. As we explained, the Board of Tax and Land issue were not perpetual leases, was based upon our review of the actual language of the relevant Similarly, our conclusion in Appeal of Reid, that the petitioners’ interests in the properties at 2 this appeal does not involve such a review. Moreover, as FairPoint identifies, with the Town of Meredith. See Piper, 83 N.H. at p. 10 107 - 10. As described above, 2 pro perty at issue, was based upon our review of his actual lease agreement conclusion in Piper, that the plaintiff held a perpetual lease in the municipal of this argument is misplaced. As an initial matter, we note that our The Towns’ reliance on Piper v. Meredith, 83 N.H. 107 (1927), in support

use con stituted a perpetual lease. use or occupation of municipal rights - of - way was not ultra vires because its superior court did not err in rejecting the argument that taxation of FairPoint’s requirements of RSA 72:23, I, are inapplicable. Thus, we hold that the of law, render it the “owner” of its interest in the rights - of - way such that the FairPoint’s use or occupation of municipal rights - of - way does not, as a matter trigger RSA 72:23, I, see id. Accordingly, we conclude that the nature of N.H. at 268 — in other words, that th is type of ownership was sufficient to on a user or occupier of the public ways” under RSA 72:23, I, Rochester II, 151 ownership to be sufficient to allow a [municipality] to impose real estate taxes We nevertheless reasoned that “the legislature intended for this type of has only a qualified property interest in the public ways.” Id.; see RSA 72:23, I. defined] ways in which public highways are created, a [municipality] typically [municipality] must ‘own’ the land . . . [and] because of the [legislatively I(b) and concluded that “[t]he statute does not define the manner in which the brackets omitted). In doing so, we examined the plain language of RSA 72:23, estate taxes” under RSA 72:23, I. Rochester II, 151 N.H. at 268 (quotation and occupy those interests in the rights of way must pay prop erly assessed real for purposes of determining whether non - governmental entities that use or the [municipality] . . . possesses in the rights of way, those interests are ‘owned’ In Rochester II, we agreed with the trial court that “[w]hatever interests

segTEL, 170 N.H. at 120. RSA 72:23, I(b) to authorize taxation. See Rochester II, 151 N.H. at 267, 270; perpetual lease as a matter of law, capable of avoiding the need to comply with FairPoint’s use or occupation of muni cipal rights - of - way constitutes a However, we are unpersuaded that such circumstances compel a finding that conditions of a license that it has issued whenever the public good requires.”). langua ge of [RSA 231:163], a [municipality] may change the terms and R ochester, 151 N.H. 263, 269 - 70 (2004) (Rochester II) (“Under the plain standard.” See RSA 231:163; see also Verizon New England v. City of alter licenses it issues, a municipality’s authority is limited by the ‘public good’ omitted.) For example, the Towns point out that “[w] hile a municipality may p. 11 11

assess ment against said entity . . . : the Replacement Cost New (RCN) of the telecommunications telecommunications owned in whole or in part by telephone utilities . . . for purposes of tax determining “[t]he value of wooden poles or conduits employed in the transmission of In 2016, the legis lature passed House Bill p. 11 1198, which adopted the following formula for 4 specific challenges to either of the two specific abatements at issue. We note that the Towns’ arguments on appeal are jointly asserted and do not identify any 3

court. See Appeal of N.H. Elec. Coop., 170 N.H. 66, 86 (2017). We have never 4 use or occupation of public rights - of - way belong s to the legislature, not this decision to adopt a uniform metho dology for valuing utility property and the property and the [municipalities ’] rights - of - way,” we decline to do so. T he “what methodology is appropriate for experts to use in valuing the plaintiff’s A lthough the parties and the superior court are seeking to have us clarify

170 N.H. at 542. the trier of fact considerable deference in this area. Public Serv. Co. of N.H., 18, 37 (2010). It is extraordinarily difficult to value public utilities, and we give ma rket value is an issue of fact. Appeal of Pennichuck Water Works, 160 N.H. Co. of N.H. v. Town of Bow, 170 N.H. 539, 541 (2018). Determination of fair they are lacking in evidentiary supp ort or tainted by error of law. Public Serv. On a ppeal, w e sustain the findings and rulings of the trial co urt unless

abatement from the Town of Durham. a $31,348.40 abatement from the Town of Hanover, and a $107,333.43 respective tax years in question. The court ruled that FairPoint was entitled to demons trating that it was taxed disproportionately by the Towns for the the superior court found, inter alia, that FairPoint had met its burden of both types of property taxes outlined above. Following a five - day bench trial, Hanover. The Towns’ challenges implicate the court’s valuations pertinent to 3 tax year by the Town of Durham and in the 201 1 tax year by the Town of Phase 2, conclud ing that Fair P oint was taxed disproportionately in the 201 3 We next turn to the Towns’ challenges to the superior court’s decision in

perpetual lease that gave rise to an independently taxable property interest. FairPoint’s use or occupation of municipal rights - of - way was not pursuant to a Phase 1 order, and conclude that the trial court did not err in determining that Accordingly, we reject the Towns’ second challenge to the superior court’s

language in order to authorize taxation. RSA 72:23, I(a) - (b). use or occupation of public rights - of - way to contain the prescribed tax - shifting and other agreements” entered into af ter the dates specified that provide for the I, that is at the heart of this appeal. RSA 72:23, I, specifically requires “leases leasehold was taxable, see id. at p. 11 110 - p. 12 12, pre - dates the language of RSA 72:23, the law applied in Piper to determine, in 1927, that the plaintiff’s perpetual 12

enactment, this statutory formula is not applicable to this appeal. residual value of 20 percent.” RSA 72:8 - c (Supp. 2019). Howev er, given the timing of its pole or conduit, less depreciation calculated on a straight - line basis for a period of 40 years with a

original assessments were correct in order to ultimately conclude that FairPoint must have shifted the burden of proof to the Towns to demonstrate why th eir Towns assert that, therefore, absent a credible expert from FairPoint, the court (Survey), used in her valuation of FairPoint’s poles and conduit s, credible. The reasonable factfinder could have found Bulkley’s “New Eng land Utility Survey” burden of proof” from FairPoint to the Towns because, they argue, no Towns first argue on appeal that the superior court “inappropriately shifted the With respect to the valuation of FairPoint’s poles and conduit s, t he

or occupation of municipal rights - of - way. on the proper valuation of FairPoint’s poles and conduit s, and FairPoint’s use Sansoucy, P.E., LLC. Bulkley and Sansoucy each offered their expe r t opinions Towns presented expert testimony f rom George Sansoucy of George E. expert testimony from Ann Bulkley of Concentric Energy Advisors, Inc., and the At trial, each part y relied upon one expert witness. FairPoint presented

at midnight on a moonless landscape.” Id. (quotation omitted). for fair market value is not an easy one, and is akin to a snipe hunt carried on to any one of the approaches listed. Id. We have recognized that “[t]he search factors must be considered, but a trier of fact need not allocate specific weight depreciation. Public Serv. Co. of N.H., 170 N.H. at 542. Typicall y, all relevant alternative facilities, capitalized earnings, and reproduction cost less original cost less depreciation (rate base or net book), comparable sales, cost of combination of five appraisal techniques in valuing public utility property: As we have repeatedly stated, the trier of fact may use any one or a

methodology does not, in and of itself, prove the disproportionate result.”). flawed me thodology may lead to a disproportionate tax burden, the flawed Town of Sanbornton, 150 N.H. 363, 369 (2003) (“While it is possible that a some credible evidence regarding the fair market value of its property. Porter v. that an assessor used flawed valuation methodology; it must also produce taxpayer cannot carry its burden by simply offering evidence tending to show which property is generally assessed in the town.” Id. (quotation omitted). A assessed at a higher percentage of fair market value than the percentage at disproportionality, the taxpayer must est ablish that the taxpayer’s property is proportional share of taxes. Id. at 73. “To carry the burden of proving proving by a preponderance of the evidence that it is paying more than its To succeed on a tax abatement claim, a taxpayer has the burden of

touchstone. Id. We proceed with our review accordingly. the absence of legislative directive. Id. at 74. Rather, judgment is the attempted to tie the factfinder’s hands with a rigid fair market value formula in p. 13 13

for by parties other than, in this case, FairPoint. As referenced by the parties and the superior court, “CIAC costs” refer to the costs of poles paid 7 with creating the right to use public rights - of - way. As referenced by the parties and the superior court, “assemblage costs” refer to costs associated 6 equipment to and use FairPoint’s poles. FairPoint from “other utilities and cable companies” in exchange fo r the ability to attach their As referenced by the parties and the superior court, “attacher income” is income earned by 5

of law.”). valuation approach or specifi c combination of approaches is correct as a matter Public Serv. Co. of N.H., 170 N.H. at 542 (“We have never held that a single valuing public utilities. Appeal of N.H. Elec. Coop., 170 N.H. at 74, 86; cf. we will not tie the factfinder’s hands with a rigid fair market value formula for court, we cannot conclude that the court erred. Absent a legislative directive, these items were not included in Bulkley’s valuation as credited by the superior costs, and “contributions in aid of construction” (CIAC). Even assuming 6 7 mobilization costs, ledge - boring and bedrock installation costs, assemblage properly account for “attacher income,” “installation and construction costs,” 5 Bulkley’s opinions and reject ing Sansoucy’s, the court’s valuation d id not conduit s “allow[ed] property to escape taxation.” They argue that by credit ing The Towns also argue that the court’s valuation of FairPoint’s poles and

Bulkley’s, or Sansoucy’s, credibility. discussed below, we find no reason to disturb the cour t’s findings regarding evaluation of the credibility of FairPoint’s expert ’s opinion s. For the reasons opinions on the valuation of FairPoint’s poles and conduit s, i.e., the court’s effectively criticiz es only the weight the superior court acc orded to Bulkley’s invocation and lengthy discussion of RSA 516:29 - b, t h e Towns’ argument goes to the admissibility of the expert’s testimony). Thus, despite their (1996) (explaining that a discovery violation with respect to expert disclosures admissible.” B ut see O’Donnell v. Moose Hill Orchards, 140 N.H. 601, 604 trial, and the Towns aver on appeal that Bulkley’s Survey was “clearly the Towns stipulated to the admission of the “expert reports” as full exhibits at Survey, thus rendering the Survey too unreliable for the court to consider; yet, violation regarding Bulkley’s failure to disclose the underlying “raw data” of her T he Towns focus much of their argument on an alleged discovery

under R SA 51 6:29 - b (Supp. 2019). because the parties did not waive the statutory expert disclosure requirements to seek to compel disclosure, and that the court’s error “is even more glaring” disclosed to the Towns or to the court, that it was not the Towns’ responsibility credited Bulkley’s Survey because the data on which she relied was not was entitled to abatements. The Towns argue that the court could not have p. 14 14

(2008) (“The interpretation of a court order is a question of law, which we order to be credible. See In the Matter of Salesky & Salesky, 157 N.H. 698, 702 valuation of FairPoint’s poles and conduit s must include assemblage costs in occupation of public rights - of - way, not to indicate that it had concluded that a explain why, in part, it rejected Sansoucy’s valuation of FairPoint’s use or them taxable.” We understand the court’s discussion of assemblage costs to add those assemblage costs to its value of the poles an d conduit s despite ruling of the use of. . . the [rights - of - way],” but, the Towns assert, “it then failed to associated with the value of the poles and conduit s themselves, and not as part Co ncerning assemblage costs, the court found that they “should be

based upon the evidence presented in a given case.”). credibility of an appraisal is a question of fact that the trial court must decide Coop., 170 N.H. at 74; cf. Public Serv. Co. of N.H., 170 N.H. at 542 - 43 (“[T]he the superior court to credit said approach here. See Appeal of N.H. Elec. existence of precedent adopting Sansoucy’s approach in a prior case compel added to the poles and conduit s through the attacher income.” Nor would the approach or reject Bulkley’s, which, according to the T owns, “ignored the value Sansoucy’s approach would not compel the superior court to credit Sansoucy’s value of the poles and conduit s.” Yet, the lack of precedent rejecting attacher income in his valuat ion] is inappropriate or overstates the fair market Hampshire case law which indicates that Sansoucy’s approach [to including his calculation “suspect”). Th e Towns also argue, “T here is nothing in New milli on dollars’ worth of property donated to the utility by developers” rendered expert, that the reason provided by the utility’s expert for excluding “over two expert’s reproduction cost calculation over the calculation of the utility’s context of affirming that the trial court did not err in crediting the town’s Hampshire.” See Southern N.H. Water Co., 139 N.H. at p. 14 14 1 - 4 2 (noting, in the CIAC “is r equired to be included in the valuation of taxable property in New Co. v. Town of Hudson, 139 N.H. 139 (1994), stands for the proposition that Th e Towns are incorrect in arguing that Southern N ew H ampshire Water

Elec. Coop., 170 N.H. at 77. an ap praisal presents an accurate opinion of market value. Appeal of N.H. factfinder, is in the best position to weigh the testimony and determine whether numerous discretionary decisions is precisely why the trial court, as the N.H at 542 (quotation omitted). The fact that each utility appraisal involves proper, includi ng that of the expert witnesses,” Public Serv. Co. of N.H., 170 who could accept or reject such portions of the evidence presented as he found at 77, 86, and “conflicts in the evidence were to be resolved by the trial judge, credibility of each expert’s valuation, see Appe al of N.H. Elec. Coop., 170 N.H. attacher income and the costs identified by the Towns on appeal implicate the D ifferences in the experts’ methodologies regarding if and how to account for the court found, “followed the same general way of reaching RCNLD.” depreciation approach (RCNLD) to value FairPoint’s poles and conduit s, and, as Bulkley and Sansoucy both utilized a replacement cost new less p. 15 15

rejection of Sansoucy’s. likewise sound in criticism of the court’s crediting of Bulkley’s opinions and and its valuation of FairPoint’s use or occupation of municipal rights - of - way, various components of the court’s valuation of FairPoint’s poles and conduit s claiming there was “no evidence” in the record or “no fact ual basis” to support rights - of - way. However, we agree with FairPoint that these arguments, allocations, relevant to valuations of FairPoint’s use or occupation of municipal regarding each expert ’ s determinations of the utility corridor ’s width and use are supported by the record. The same is true for the court’s findings installation costs, as relevant to its valuation of FairPoint’s poles and conduit s, treatment of attacher income, mobilization costs, and ledge - boring and bedrock W e conclude that the superior court’s findings regarding each expert’s

“not supported by the record.” allocation o f the use of the utility corridor among FairPoint and attachers were corridor,” the “percentage of use” attributable to FairPoint, and her equal Bulkley’s expert opinion because her conclusions as to “the width of the utility rights - of - way, the Towns argue that the superior court erroneously credited with respect to the valuation of FairPoint’s use or occupation of municipal assumed that the Survey included “real world ledge boring costs.” Similarly, number of poles actually installed in bedrock in each town,” and also merely included in the Survey would be the sa me for each town, regardless of the reliable because the court assumed that “any bedrock installation costs Towns also argue that the superior court erred in finding Bulkley’s Survey Bulkley ’s Survey “presumably include[d] mobilization cost [s].” Moreover, the costs, and there was “no evidence that supported” the court’s finding that basis” for the court’s stated reasoning in rejecting Sansoucy’s mobilization properly include certain costs, the Towns maintain that there was “no factual Nevertheless, in regard to their arguments about the court’s failure to

touchstone of valuing utility property). FairPoint’s poles and conduit s. See id. at 74 (explaining j udgment is the appraisals to deriv e, what it determined to be, an accurate valuation of court exercised reasoned judgment in weighing Bulkley’s and Sansoucy’s market value, Appeal of N.H. Elec. Coop., 170 N.H. at 77. Here, t he superior position to determine whether an appraisal presents an accurate opinion of Public Serv. Co. of N.H., 170 N.H. at 542 - 43, and the trial court i s in the best the trial court must decide based upon the evi dence presented in a given case, To the contrary, t he credibility of an appraisal is a question of fact that

cost s. See Appeal of N.H. Elec. Coop., 170 N.H. at 77, 86. Bulkley’s Survey in doing so, without specifically accounting for assemblage in its determinat ion of value for FairPoint’s poles and conduit s, crediting review de novo.”). Nor can we conclude that the court erred as a matter of law p. 16 16

persuasive than Sansoucy’s advocacy for a sixty - year period. The court’s opinion regarding the reasonableness of a forty - year depreciation period more end,” for poles. After an in - depth analysis, t he superior court found Bulkl ey’s conceded” that the forty - year period was reasonable, though “at the higher depreciation period, and the superior court explicitly noted that “Bulkley depreciation, one of which utilized HB 1 198 to recommend a forty - year expert’s opinion. However, Bulkley put forth two analyses relating to pole of a pole,” (b olding and capitalization omitted), as a substitute for either House Bill 1198 (20 p. 16 16) as a proper method of determining the depreciable life Bulkley’s credibility. T he Towns claim that the court erred in “relying upon the depreciation period for poles is, fundamentally, an argument about Similarly, the Towns’ argument regarding the court’s determination of

N.H. Elec. Coo p., 170 N.H. at 74. superior court’s reasoned judgment of expert credibility. See id.; Appeal of Although the Towns disagree with Bulkley’s conclusion s, w e defer to the weighing it against Sansoucy’s criticism of Bulkley’s approach. See id. Bulkley’s testimony.” Yet, t he superior court credited thi s testimony after associated attachers, the Towns assert that “[t]he only evidence was Ms. determination to allocate the use of rights - of - way equally among FairPoint and Furthermore, in arguing that there was no evidence to justify the court’s

testimony.”). finder, it was proper for the trial court to weigh the conflicting expert to be unreasonab le. See Public Serv. Co. of N.H., p. 17 170 N.H. at 542 (“As the fact FairPoint and made detailed findings explaining why it found his determination also evaluated Sansoucy’s proffered seventy - percent allocation of use to the propriety of her calculation for the tax assessments in this case. The court same result reached in Verizon, it independently evaluate d her testimony about Bulkley’s ten - percent allocation of use of the rights - of - way to FairPoint was the the same figures were “appropriate” in this case. While the court did find that the basis for her determination of the utility corridor ’s width and testified that of the appraisers” in Verizon. Bulkley testified that the Verizon decision was municipal rights - of - way, and that “their approaches [were] comparable to those approaches” to calculating the value of FairPoint’ s use or occupation of the superior court found that both experts “employed relatively similar Sansoucy’s methodology and th e approach used by Judge Morrill in Verizon, case. (Italics o mitted.) However, after a detailed review of Bulkley’s and no evidence in the record to support” applying Judge Morrill’s findings to this (Verizon), and that the court erred in crediting her appraisal when “there [was] 05 - E - 401, 05 - E - 402, 2006 WL 3742673 (N.H. Super. Ct. Nov. 9, 2006) reasoning in Verizon New England, Inc. v. City of Rochester, Nos. 05 - E - 400, by the record,” the Towns argue that she “essentially adopted” Judge Morrill’s FairPoint’s use or occupation of municipal rights - of - way were “not supported For example, in asserting that portions of Bulkley’s valuation of 17

find the Towns’ arguments unpersuasive. contend, guys and anchors are part of the latter category, they are taxable. We the latter category being taxable while the former is not. Because, the Towns services; and those that are the physical hosts for such transmission parts,” “contemplates two categories of property: those parts which actively transmit argu e that even if guy s and anchors are not clearly “structures,” the statute with poles to keep them upright and stable.” In the alternative, the Towns as that term is used in the statu t e because they are constructed in conjunction RSA 72:8 - a. T he Towns argue that guys and anchors “are clearly ‘structures’

real estate. cable, or commercial mobile radio services shall not be taxabl e as equipment employed in the transmission of telecommunication, and equipment, including wires, fiber optics, and switching property shall be based on its value as real estate. Other devices such property or any part of it is situated. T he valuation of such radio services shall be taxed as real estate in the town in which transmission of telecommunication, cable, or commercial mobile [A] ll structures, poles, towers, and conduits employed in the

valuation. During the relevant times, RSA 72:8 - a provided in part: FairPoint’s poles, which the court found “add[ed] substantially” to Sansoucy’s trial because Sansoucy had included the cost of guys and anchors in valuing (guys) and anchors are not taxable under RSA 72:8 - a. This question arose at court’s decision in Phase 2 — that the court erred in concluding guy wires T he Towns raise a question of law in their challenge to the superior

N.H. at 543. occupation of municipal rights - of - way. See, e.g., Public Serv. Co. of N.H., p. 17 170 the value of FairPoint’s poles and conduit s, and on FairPoint’s use or find that the court erred as a matter of law in accepting Bulkley’s opinions on there i s support in the record for the superior court’s valuation s, we cannot testimony, in whole or in part.” (quotation and brackets omitted)). Because conflicting expert testimony, a trier of fact is free to accept or reject an expert’s entirety. Appeal of N.H. Elec. Coop., 170 N.H. at 74 (“When faced with not compel the superior court to discredit Bulkley’s expert opin ions in their opinions, even rejecting some — which, contrary to the Towns’ argument, did Bulkley’s valuations carte blanche, but engaged in a mindful evaluation of her upon the evidence presented at trial. See i d. The superior court did not accept opinions of Bulkley and to reject those of Sansoucy were reasonable based We conclude that the superior court’s decisions to credit various

therefore, we will n ot disturb it. See Public Serv. Co. of N.H., p. 17 170 N.H. at 542. adoption of a forty - yea r pole depreciation period is supported by the record; p. 18 18

structures the necessary and proper guys, cross - arms, fixtures, de signated by such license and to place upon such poles and conduits, cables, and wires in approximately the location to erect or install and maintain any such poles, structures, shall thereupon and thereafter be entitled to exercise the same and The holder of such a license, hereinafter referred to as licensee,

part: to subparagraph VI, describing the effect of a license, which states in relevant conduits, cables, or wires in public highways. See RSA 231:161. W e now look procedure for erecting or installing telecommunications poles, structures, statutes.”). To refresh, RSA 231:161 provides the licensing, and permit ting, will lead to reasonable results and effectuate the legislative purpose of the we construe them so that they do not contradict each other, and so that they 267 (“When interpreting two statutes which deal wi th a similar subject matter, intended as “structures,” see RSA 231:161; see also Rochester II, 151 N.H. at a, because a related statute demonstrates that guys and anchors were not differs from “[o]ther devices and equipment,” which are nontaxable, RSA 72:8 need not define “structures” as used in RSA 72:8 - a or articulate how the term as “structures” under RSA 72:8 - a. We conclude they are not. In doing so, w e This l eaves us w ith the question of whether guys and anchors are taxable

Lane Realty Trust, 143 N.H. at 143. transmission of telecommunication. . . services,” RSA 72:8 - a; see id.; Pheasant distinction in how the relevant property is in fact “employed in the legislature did not see fit to include, Polonsky, 171 N.H. at 93, to create a meanings are consistent”). Moreover, we will not add language that the presumes that when a word [or phrase] is used more than once in a text, the “presumption of consistent usage” canon of statutory construction, “which Interpretation, 77 Wash. & Lee L. Rev. 177, 2 02 n.98 (2020) (referencing the meaning. S ee id.; see also, e.g., Anuj C. Desai, The Dilemma of Interstatutory legislature’s consistent use of this language wa s intended to convey the same or commercial mobile radio services.” RSA 72:8 - a. W e presume that the property as being “employed in the transmission of telecommunication, cable, language of t he statute identifies both taxable property and non taxable the property “actively transmit [s] services” or is a “physical host[].” The plain the property’s role in transmit ting telecommunications services, i.e., whether RSA 72:8 - a distinguishes between taxable and non taxable property based upon Turning to the Towns’ alternative argument first, w e do not agree that

interpretation de novo. Polonsky, 171 N.H. at 93. ( p. 19 1998) (quotation omitted). We review the superior court’s s tatutory implication.” Pheasant Lane Re alty Trust v. City of Nashua, 143 N.H. 140, 143 “must be found within the letter of the law and is not to be extended by authority. segTEL, 170 N.H. at 120. It is well settled that the authority to tax T he assessment and collection of taxes must be based upon legislative 19

2020) “as a matter of law.” shifting language re quired by RSA 72:23, I(b) (2012) (amended 2017, 2018, RSA 231:160 - a (2009), which holds that section 160 - a licenses contain the tax disagree with the majority’s decision in part II regarding licenses arising under treatment of the Towns’ perpetual lease argument in part II. However, we in part. We concur with part III of the majority opinion and with the majority’ s HANTZ MARCONI and DONOVAN, JJ., concurring in part and dissenting

concurred in part and dissented in part. assigned under RSA 490:3, concurred; HANTZ MARCONI and DONOVAN, J J., HOURAN and BROWN; JJ., retired superior court justices, specially

Town of Tuftonboro, 171 N.H. 614, 626 (20 p. 19 19). Towns’ notice of appeal was not briefed; thus, we deem it waived. Die tz v. (1993). The issue regarding the admissi bility of a treatise at trial raised in the they do not warrant further discussion. See Vogel v. Vogel, 137 N.H. 321, 322 have reviewed the Towns’ remaining appellate arguments and conclude that reversed in part and affirmed in part, and it s Phase 2 decision is affirmed. We In sum, the superior court’s Phase 1 order on summary judgment is

Towns and consequently abat ing the two tax assessments at is sue. that FairPoint met its burden to prove it was taxed disproportionately by the Accordingly, we affirm the superior court’s decision in Phase 2, finding

way under RSA 72:23, I; th us, we decline to address this question. be relevant to the taxation of another’s use or occupation of public rights - of - The parties have not asked us to determine whether guy s and/or anchors may and anchors are not taxable under RSA 72:8 - a. See segTEL, 170 N.H. at 120. RSA 72:8 - a. S ee Rochester II, 151 N.H. at 267. Therefore, we hold that guy s conclude that guys and anchors are not “structures” within the meaning of 72:8 - a so as no t to contradict this interpretation of RSA 231:161, VI, we structures and poles. Id.; see id. Construing the term “structures” in RSA anchors are not themselves “structures”; rather, they are “place[d] upon” business are “place[d] upon . . . poles and structures.” Id. Thus, guys and appurtenances” required in the reasonable and proper operation of a licensee’s proper guys, cross - arms, fixtures, transformers and other attachments and RSA 231:161, VI (emphasis added). Under RSA 231:161, VI, “necessary and

carried on by such licensee. . . . required in the reasonable and proper operation of the business transformers and other attachments and appurtenances which are p. 20 20

fact satisfied, that municipal right - of - way remains “exempt from taxation.” See RSA 72:23. way. RSA 72:23, I(b); see id. If subparagraph I(b) is implicated, but its requirements are not in confer authority upon a municipality to tax another’s use or occupation of municipal ri ghts - of or occup[ies]” public highways and the subparagraph plainly sets forth that which is required to I(b), the statute creates an exception to this exemption which is implicated when another “use[s] school district, or village district” are “exempt from taxation.” RSA 72:23, I(a). In subparagraph the personal property owned by the state of New Hampshire or by a New Hampshire city, town, RSA 72:23, I, provides that “[l]ands and the buildings an d structures thereon and therein and 10 under RSA 231:161 constitute “other agreements” for purposes of RSA 72:23, I). Tel. Co. v. City of Rochester, 144 N.H. 118, 121 (1999) (Rochester I) (holding licenses arising under RSA 231:160 - a constitute “other agreements” under RSA 72:23, I(b). See also N.E. Tel. & For purposes of this appeal, we, like the majority, assume without deciding that licenses arising 9 ( p. 20 2009); see RSA 231: 161. related property are installed and maint ained as “public highways.” RSA 231:160 - a; RSA 231:160 Both RSA 231:160 - a and RSA 231:161 refer to the real estate upon which poles, conduits, and 8

RSA 72:23, I(b) into a license “as a matter of law” will never satisfy all of the As a practical matter, attempting to incorporate the req uired language of

RSA 72:23, I(b). the mere creation of a license cannot automatically satisfy the requirements of requirements, to what the statute actually makes mandatory, it is evident that we look beyond the fact that subparagraph I(b) prescribes mandatory creation” is particularly questionable in the context of RSA 72:23, I(b). When “mandatory requirement of licensure” to “automatic satisfaction upon license RSA 72:23, I(b). See RSA 72:23, I(b). The majority’s leap in logic from 10 As such, licenses created under either provision trigger the applicability of 9 the use or occupation of municipal rights - of - way. See RSA 231:160 - a, :161. 8 Licenses created under either section 160 - a or section 161 provide for

satisfy these mandatory requirements of licensure. follows that the creation of such a license must, or even can, automatically rights - of - way, see RSA 72:23, I(b), we do not agree that, as a matter of logic, it requirements for licenses that provide for the use or occupation of municipal While we certainly agree that RSA 72:23, I(b) sets out mandatory

b ecause those requirements are mandatory. section 160 - a must automatically satisfy the requirements of RSA 72:23, I(b) words, the majority asserts that the act of “legally” creating a license under inclusion of certain tax - shifting language. See id.; RSA 72:23, I(b). In other [be] in accordance with the law” because RSA 72:23, I(b) mandates the otherwise, the majority opines, licenses created under section 160 - a would “not proceedings under this subdivision.” RSA 231:160 - a. Were we to conclude utility property shall be “dee med legally permitted or licensed without further resolves the issue before us,” resting on the phrase stating that poles and The majority concludes that “[t]he plain language of RSA 231:160 - a p. 21 21

accomplished in accordance with the law. See generally RSA 231:160 - a. The “permitted or licensed,” i.e., the action that the statute deems to be accordance with the law”), but does not clarify what it means to become To reach its conclusion, the majority defines “legally” (being “in

I(b); see also RSA 231:160 - a, :161. license cannot be legall y created absent the required language. See RSA 72:23, the use or occupation of public rights - of - way, however, does not mean that a subparagraph I(b) sets forth mandatory requirements for licenses providing for without including the required language of RSA 72:23, I(b). See id. That reasoning that a valid permit or license cannot be created under section 160 - a of RSA 72:23, I(b) are mandatory, we are compelled to infer from the majority’s RSA 231:160 - a. Beyond its explicit reliance on the fact that the requirements permitted or licensed without further proceedings under t his subdivision.” under section 160 - a, poles and utility property shall be “deemed legally 72:23, I(b), the statute applies differently to section 160 - a licenses because, However, the majority find s that, contrary to the plain language of RSA

this appeal, licenses arising under RSA 231:160 - a. RSA 72:23, I(b); see id. or occupation of municipal rights - of - way, including, as both parties assert in requiremen ts apply to “[a]ll leases and other agreements” providing for the use implication” (quotation omitted)). The plain language is also clear that its “must be found within the letter of the law and is not to be extended by of Nashua, 143 N.H. 140, 143 (1998) (it is well settled that the authority to tax improvements” (emphases added)); see also Pheasant Lane Realty T rust v. City whether the [licensee] has an obligation to pay . . . taxes on structures or “shall clearly state. . . obligations regarding . . . taxes,” and “shall also state ‘failure . . . to pay . . . taxes . . . shall be cause t o terminate said [license],’” for the payment of properly assessed . . . taxes,” “shall include a provision that matter of fact. See id. (stating that leases and other agreements “shall provide language cannot be included as a matter of law, and it must be included as a the payment of property taxes be set forth in the applicable license; the language of subparagraph I(b) requires that express provisions providing for We agree with FairPoint and with Judge McNamara that the plain

requirement of RSA 72:23, I(b). See id. 231:160 - a will always fail to be “in accordance” with at least one mandatory Therefore, even under the majority’s reasoning, a license create d under RSA license “as a matter of law” does nothing more to satisfy this requirement. the licensee adds, see id., and incorporating that language into a section 160 - a the licensee is obligated to pay property ta xes on structures or improvements subparagraph I(b) does not itself communicate, one way or another, whether improvements added by the [licensee].” Id. (emphasis added). This language of obligation to pay real and personal property taxes on structures or requirements is that the license “shall also state whether the [licensee] has an mandatory requirements of subparagraph I(b) because one of said p. 22 22

holding, but for its explanation of the fact that the court has yet to decide a particular issue. While unpublished o rders do not have precedential value, this o rder is not being cited for its 11

to be erected and ins talled or maintained, and requires the selectmen to selectmen that describes the poles, structures, conduits, cables or wires sought That procedure involves submitting a petition to the appropriate

procedure set forth in section 161. See RSA 231:161. maintaining utility property is thus crea ted as a result of following the or occupy municipal rights - of - way for the purpose of erecting, installing, and license.” RSA 231:161, VI (emphasis added). A valid license (or permit) to use conduits, cables, and wires in approximately the location designated by such be entitled to. . . erect or install and maintain any such poles, structures, “[e]ffect” of the license, namely that the licensee “shall thereupon and thereafter “secure a permit or license” to do so. RSA 231:161. Paragraph VI outlines the to erect or install” utility property in, under or across public rights - of - way must RSA 231:161 sets forth the procedure by which an entity that “desir[es]

parallel licensing process to section 161. section 160 - a, which, both w e and our colleagues agree, constitutes the inappropriate to apply such a requirement to the creation of a license under be amended to become enforceable). Therefore, we maintain that it is o rder) (explaining that the court has not decided whether a void contract can 11 2017 - 0721, 2019 WL 3037105, at *5 - 6 (N.H. July 11, 2019) (unpublishe d taxes), with Sandra Janvrin v. Federal National Mortgage Association & a., No. amend Verizon’s section 161 licenses to require Verizon to pay real estate N.H. at 266 - 67 (upholding the trial court’s ru ling that the city could lawfully Rochester, 151 N.H. 263, 267 (2004) (Rochester II)). Compare Rochester II, 151 N.H. 118, 121 (1999) (Rochester I), and Verizon New England v. City of (2007) (Rochester III) (discussing N.E. Tel. & Tel. Co. v. City of Rochester, 144 RSA 231:161; Verizon New England v. City of Rochester, 156 N.H. 624, 625 - 26 can it be, interpreted as necessary to create a license under section 161. See be clear tha t satisfying the requirements of RSA 72:23, I(b) has not been, nor interpreting how RSA 72:23, I, applies to section 161. Had it done so, it would examine the plain language of RSA 231:161, nor does it address our case law In conducting its interpretation of RSA 231:160 - a, the majority does not

by this case. not one of policy, but one integral to the statutory interpretation necessitated result to the licensing procedure of section 161, which we agree is obvious, is To our view, this point, that section 160 - a was intended to provide a parallel policy consideration supporting the majority’s interpretation of se ction 160 - a. need for further proceedings.” Interestingly, this point is characterized as a would have been had it applied for a license under RSA p. 23 231:161, without the obvious purpose of RSA 231:160 - a is to place the utility in the same position it only arguable attempt at this clarification is the majority’s statement that “[t]he 23

municipal rights - of - way pursuant to a section 161 license, we have repeatedly ho lding. When a municipality attempts to tax a utility’s use or occupation of amendment to comply with RSA 72: p. 23 23, I(b) otherwise justify the majority’s Nor does the fact that section 160 - a licenses will necessitate an

a. See id. Compare id., with RSA p. 23 231:161. proceedin gs are needed to effectuate the outcome contemplated by section 160 language of RSA 72:23, I(b) be included. RSA 231:160 - a; see id. No further “legally permitted or licensed,” which, as discussed, does not require that the amending licenses). This emphasized phrase modifies the act of becoming (emphasis added); see RSA 231:163 (2009) (provision in the subdivision for licensed without further proceedings under this subdivision.” RSA 231:160 - a 231:160 - a, stating that utility property shall be “deemed legally permitted or comply with RSA 72:23, I(b) is not contrary to the plain language of RSA The fact that section 160 - a licenses will necessitate an amendment to

section 160 - a license that is “in accordance with the law.” incorporate subparagraph I(b)’s language in order to effectuate the creation of a 144 N.H. at 121 - 22. Therefore, there is no basis upon which to attempt to p. 23 231:160 - a; see RSA 231:161; Rochester II, 151 N.H. at 266 - 67; Rochester I, permitted or licensed” without including the language of RSA 72:23, I(b). RSA section 161, we would conclude that utili ty property can become “legally utility and the municipality in the same position in which they would be under require the inclusion of RSA 72:23, I(b) language, and section 160 - a puts the If the act of be coming “permitted or licensed” under section 161 does not

of the license “entitle[s]” the utility to do so. RSA p. 23 231:161, V; see id. occupy municipal rights - of - way despite its plain language stating that the effect laid out in section 161, would not actually confer a valid license to use or at 93, because, under the majority’s reasoning, following the procedure, as it i s include.”). It also leads to an absurd or unjust result, see Polonsky, 171 N.H. might have said or add language that the legislature did not see fit to intent from the statute as written and will not conside r what the legislature Polonsky v. Town of Bedford, 171 N.H. 89, 93 (2018) (“We interpret legislative section 161 to create a license to use or occupy public rights - of - way. See id.; reasoning would inappropriately add a step to the procedure set forth in Attempting to force parity between sections 160 - a and 161 under the majority’s that sections 160 - a and 161 should “place the utility in the same position.” language to “legally” create a license under section 160 - a despite also noting The majority nonetheless requires the incorporation of RSA 72:23, I(b)

to erect, install, or maintain utility property. See RSA p. 23 231:161. language be included to create a license to use or occupy public rights - of - way 231:161, IV, V; see id. Section 161 does not requi re that any additional definition of location” of utility property in the public right - of - way. RSA include specific provisions in the license relating to the “designation and p. 24 24

h ighway through municipal action). structures, conduits, cables or wires and that location later becomes a public a local land use board has previously approved the location of poles, public right - of - way.” See RSA 231:160 - a (providing licensing mechanism when important in circumstances where existing pol e locations become part of a sense dictates that notice of such tax obligations would be particularly receive under RSA 231:161. As Judge McNamara stated, “Indeed, common beco me licensed under RSA 231:160 - a than what they would be entitled to would be entitled to any less notice when their poles and other property 72:23, I(b), and, furthermore, as a policy matter, it is unclear why a utility and other agreements” are subject to its requirements for notice, see RSA 72:23, I(a) - (b). Pursuant to the plain language of RSA 7 2:23, I(b), “[a]ll leases municipal rights - of - way. Appeal of Reid, 143 N.H. p. 24 246, 253 (1998); see RSA licensees] are aware of, and consent to, taxation” of their use or occupation of licensed] to third parties, and a tax pr ovision that ensures that the lessees [or collect tax revenues on land that is otherwise tax exempt when it is leased [or “contains both an enabling provision that simply allows municipalities to important notice function, explaining that the plain language of RSA 72:23, I, obligations.” We have previously recognized that subparagraph I(b) serves an I, while simultaneously ensuring pole owners receive proper notice of their tax would not be unduly burdensome for municipalities to comply with RSA 72:23, “By exercise of this amending authority over [section 160 - a] licenses . . ., it any such license.’” (Quoting RSA 231:163.) The court went on to conclude, RSA 231:163, municipalities may ‘revoke or change the terms and conditions of circumstance, the poles are licensed by the terms o f the subdivision. Under statutory provisions of RSA 231:160 - a and RSA 231:161, stating, “In either a Phase 1 order, and we agree with his reasoning. The court compared the Judge McNamar a addressed the need to amend section 160 - a licenses in

year in question. and whether amendments to those licenses corrected the deficiency for the tax licenses that did not in fact contain the language required by RSA 72:23, I(b) Judge McNamara’s rulings during Phase 1 pertaining to the section 161 section 160 - a here. Nor have the parties raised any issue on appeal relating to asked us to revisit our holdings regarding section 161 licenses in interpreting rights - of - way established by a section 160 - a license. The parties have not which a municipality attempts to tax a utility’s use or occupation of municipal 231:160 - a, why we would not apply the same holdings to circumstances in 22. We see no reason, pursuant to either RSA 72:23, I, RSA 231:161, or RSA 72:23, I(b). See Rochester II, 151 N.H. at 266 - 67; Rochester I, 144 N.H. at 121 vires; and the municipality is required to amend the license to comply with RSA subparagraph I(b), the attempt to tax the utility’s use or occupation is ultra 72:23, I(b); if the l icense does not in fact contain the language required by held that: the license is subject to, and must satisfy, the requirements of RSA p. 25 25

relevant statutes or to our case law interpreting them. We respectfully dissent. not give proper and complete consideration to the plain language of the In sum, we find that the majority’s interpretation of RSA 231:160 - a does

fact be, not just be presumed to be, in compliance with the law. did not contain the required language of RSA 72:23, I(b), the licenses must in section 161 licenses that had been issued by representative municipalities but summary judgment order in Phase 1, requiring and evaluating amendments to as “representative municipalities.” As demonstrated by Judge McNamara’s involved eight towns and cities from across New Hampshi re, but involved them McNamara described this as the “central issue” in Phase 1, which not only was ultra vires for want of the required tax - shifting language. Judge involved FairPoint arg uing that taxation pursuant to its RSA 231:161 licenses and ignores the facts of this very case. A substantial part of this litigation subparagraph I(b) applies to section 161, glosses over the importance of notice, the direct ives of RSA 72:23, I(b) itself, is inconsistent with our case law on how requirements of RSA 72:23, I(b).” Employing such a presumption is contrary to license, the municipality will comply with the law, including complying with the for a license under RSA 231:161, it is proper to presume that in granting the particularly troubled by the majority’s statement that “[w]hen a utility applies applying the former to the latter, and these notice considerations, we are Given the plain language of RSA 72:23, I(b), RSA 231:161, our case law