2020-0275, Shaw's Supermarkets, Inc. v. Town of Windham

requested tax abatement. We affirm. Court (Honigberg, J.), issued after a two - day bench trial, granting Shaw’s (Shaw’s), for lack of standing. The Town also appeals an order of the Superior dismiss the tax abatement appeal of the plaintiff, Shaw’s Supermarkets, Inc. appeals an order of the Superior Court (Delker, J.) denying its motion to M AC DONALD, C.J. The defendant, the Town of Windham (Town),

the brief and orally), for the defendant. Beaumont & Campbell, Prof. Ass ’ n, of Salem (Bernard H. Campbell on

on the brief and orally), for the plaintiff. Mark Murphy Law Offices, LLC, of Norwood, Massachusetts (Mark F. Murphy Alfano Law Office, PLLC, of Concord (John F. Hayes on the brief), and

No. 2020 - 0275 Rockingham

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.u s. 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

and granted Shaw’s requested abatement. This appeal followed. witnesses and offered no appraisal. The trial court credited Jones’ testimony comparison, and income capitalization approaches. The Town called no was $8,360,750. He determined these values by using the cost, sales was $9,500,000, and that the equalized fair market value of the entire property that the market value of th e fee simple interest in the land not in Current Use capable of supporting future commercial development.” Jones further testified continued use as a supermarket with limited excess or surplus land . . . J ones opined that, on that date, the property’s highest and best use was “for property in p. 2 2019, and retroactively determined its value as of April 1, 2017. B. Alec Jones, who is a certified general appraiser. Jones appraised the A two - day bench trial followed. Shaw’s presented the expert testimony of

motion. abatement on property it did not own. The trial court denied the Town’s moved to dismiss, arguing that Shaw’s lacked standing to request a tax a tax abatement and subsequently appealed to the superior court. The Town Town, and it did. Shaw’ s unsuccessfully applied to the Town’s selectboard for Shaw’s was directed by the Owner to pay the property taxes directly to the assessment, the equalized fair market value of the property was $1 p. 2 2,357,718. the median equalization ratio was 88.1%. Thus, based on the Town’s As of April 1, 2017, the Town assessed the property at $10,88 7,150, and

a tax abatement, Shaw’s was entitled to its pro rata share of the abatement. hereunder pending the determination of such conte [s] t.” If the Owner received provided that [Shaw’s] make s payment of all Real Estate Taxes as required “shall permit [Shaw’s] to do so in its [name] and/or [the Owner’s name], abatement . . . of any assessment for Real Estate Taxes,” or at Shaw’s request, written request, the Owner “shall commence . . . any proceeding . . . for p. 2 2017, its pro rata share was 100%. The lease also provided that, upon Shaw’s tenants on the property. However, because Shaw’s was the only tenant in reimbursing the Owner for the taxes was divided proportionally among the and the Owner was required to pay the taxes to the Town. The responsibility of Owner its pro rata share of the real estate taxes assessed on the entire parcel, five - year extension. The lease, in relevant part, required Shaw’s to pay the initial option for a ten - year extension, and four additional options, each for a site” of approximately 1.5 acres. The lease had a term of twenty years with an In 2004, the Owner entered into a ground lease with Shaw’s for a “pad

(establishing Current Use tax program). property is in Current Use. See RSA ch. 79 - A ( p. 2 2012 & Supp. 2020) of land in Windham owned by Route 111 Windham, LLC (Owner). Part of the This case involves a challenge to a tax assessment of a 34.21 - acre parcel

I. Facts p. 3 3

It is immaterial to our analysis that Shaw’s does not own the property. See id. allegedly disproportionate tax on the Owner’s behalf, an injury to Shaw’s. Id. land and buildi ngs is an injury to the Owner, and because Shaw’s paid the petitioner in Thermo - Fisher. See id. at 67 p. 3 3. A disproportionate assessment of Under these circumstances, Shaw’s is no less aggrieved than the

amount assessed, and Shaw’s will receive the benefit of any abatement. assessment is an injury to Shaw’s because Shaw’s is re sponsible for paying the Owner received. Thus, as a practical matter, a disproportionate tax Shaw’s would have been entitled to receive 100% of any tax abatement the for 100% of the tax paid if the Owner had made the payment itself; conversely, was the only tenant, Shaw’s would have been required to reimburse the Owner own check. Additionally, under the terms of the lease, and because Shaw’s Owner’s behalf. Indeed, the Town concedes that Shaw’s paid the tax with its Shaw’s actually paid the allegedly disproportionate tax to the Tow n on the tax on the subsidiary’s behalf. Id. at 671, 67 p. 3 3. Here, there is no dispute that though one of its subsidiaries owned the property, it paid the disproportionate parent company had standing to petition for a tax abatement because, even This case is similar to Thermo - Fisher. In that case, we held that a

of Thermo - Fisher Scientific, 160 N.H. 670, 67 p. 3 3 (2010) (quotation omitted). has paid the allege dly disproportionate tax, i.e., the taxpayer. See, e.g., Appeal the context of a tax abatement appeal, a “person aggrieved” is the person who I(b) may appeal the decision to the superior court. RSA 76:17 (Supp. 2020). In selectboard’s neglect or refusal to abate a tax in accordance with RSA 76:16, As relevant here, RSA 76:17 provides that “any person aggrieved” by the

See Reid, 14 p. 3 3 N.H. at 249. address the issue of whether a tenant had standing to seek a tax abatement. tenant a grees to pay taxes on the land); see also RSA 73:10 (2012). We did not that leasehold is taxable only if lease is perpetual, renewable indefinitely, or if authority under RSA 73:10 to levy a tax on a leasehold interest. Id. (observing apply here. In that case, we determined only whether a municipality had As an initial matter, notwithstanding the Town’s argument, Reid does not

taxable interest in the property. See id. the Town contends that Shaw’s lacks standing because it does not have a agreed to do. See Appeal of Reid, 14 p. 3 3 N.H. 246, 249 (1998). In other words, unless it agreed to pay them — something, the Town contends, Shaw’s had not bec ause, as a tenant, Shaw’s is not liable for the taxes on the value of the land The Town argues that Shaw’s lacks standing to seek a tax abatement

A. Standing

II. Analysis p. 4 4

cites no authority to this effect, and we decline to adopt such a rule on this appraisal could not deviate from the USPAP in any respect. However, the Town Practice (USPAP). This argument ultimately rests on the premise that the each contrary to provisions of th e Uniform Standards of Professional Appraisal Town argues that these errors invalidated the appraisal because they were appraisal not sufficiently reliable.” (Capitalization omitted.) Specifically, the contained “a series of errors” that “have the cumulative effect to render the erred in finding that [Shaw’s] met its burden” because its expert’s appraisal value of the property.” On appeal, the Town contends that “[t]he trial court testimony and appraisal, Shaw’s “carried its burden of proof to establish the The trial court concluded that, based primarily on Jones ’ expert

to be given evidence. Id. testimony, measuring the credibility of witnesses, and determining the weight Accordingly, we defer to the trial court’s judgment in resolving conflicts in the reached the same decision as the trial court based on the same evide nce. Id. than the trial court, but rather, whether a reasonable person could have 172 N.H. at 755. We do not decide whether we would have ruled differently of the evidence as it finds proper, inclu ding that of expert witnesses. Ventas, value.” Id. As the trier of fact, the trial court may accept or reject any portion to determine whether an appraisal presents an accurate opinion of market of Acworth, 173 N.H. 660, 678 (2020). “[T]he trial court is in the best position evidence presented in a given case.” N. New England Tel. Operations v. Town appraisal is a question of fact that the trial court must decide based upon the evi dentiary support or are legally erroneous. Id. “[T]he credibility of an We will uphold the trial court’s factual findings unless they lack

market value is a question of fact. Id. Dover, 172 N.H. 752, 755 (2020) (quotation omitted). The determination of fair substantial weig ht in such bargaining.” Ventas Realty Ltd. P’ship v. City of considerations that fairly might be brought forward and reasonably given willing to sell and a purchaser desiring to buy, taking into account all probability would have been arrived at by fair negotiations between an owner Generally speaking, fair market value refers to the “pr ice which in all percentage at which property is generally assessed in the town. Id. at 368. pays taxes is assessed at a higher percentage of fair market value than the show disproportionality, Shaw’s must establish that the property for which it share of taxes. Porter v. Town of Sanbornton, 150 N.H. 363, 367 (2003). To a preponderance of the evidence that it is paying more than its proportional To succeed on its abatement claim, Shaw’s has the burden of proving by

B. Property Valuation

warrants no further discussion. of its tax abatement request. In light of this conclusion, the issue of standing Accordingly, we conclude that Shaw ’s has standing to appeal the Town’s denial p. 5 5

HICKS, BASSETT, HANTZ MARCONI, and DONOVAN, JJ., concurred.

reques ted abatement. trial court. Accordingly, we affirm the trial court’s decision to grant Shaw’s a reasonable person could have reached the same conclusion of value as the Based on our review of the evidence presented at trial, we conclude that

p. 5 539, 542 - 43 (2018). not our role on appeal. See Public Serv. Co. of N.H. v. Town of Bow, 170 N.H. asks us to second guess the trial court’s determination of credibility. That is conclude that the appraisal was not sufficiently reliable, the Town essentially testimony sufficiently responded to the Town’s objections. By asking us to the USPAP and found that the appraisal was credible because Jones’ trial Here, the trial court addressed each of the appraisal’s alleged deviations from opinion of market value.” N. New England Tel. Operations, 173 N.H. at 678. the best position to determine whether an appraisal presents an accurate Questions of credibility are for the trial court to decide because it “is in

meet [Shaw’s] burden.” “have the cumulative effect to render the appraisal not suff iciently reliable to errors might “not [have] affect[ed] the results of the appraisal” individually, they payments to the Owner. The Town argues that, even if each of the alleged effective date of the appraisal; and (3) i nclude value related to Shaw’s lease comparable property only a short distance away and a few months before the boundaries of the property; (2) consider a competitor’s purchase of a valuati on of the property because Jones failed to: (1) identify the correct The Town contends that the trial court erred by crediting Jones’

court. that a reasonable person could have reached the same conclusion as the trial record. Based on our review of the evidence presented at trial, we conclude