2022-0196, Clearview Realty Ventures, LLC v. City of Laconia; et al

No. 2022 - 0196 Hillsborough - northern judicial district

page is: https://www.courts.nh.gov/our - courts/supreme - court a.m. on the morning of their release. The direct address of the court’s home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 to press. Errors may be reported by email at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concor d, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

joint brief for defendant City of Laconia and orally for all defendants). Mitchell Municipal Group, P.A., of Laconia (Laura Spector - Morgan on the

the plaintiff s. Rheaume and Roy W. Tilsley, Jr. on the brief, and Ro y W. Tilsley, Jr. orally), for Bernstein, Shur, Sawyer & Nelson, P.A., of Manchester (Hilary H.

March 1 p. 3 3, 2020, the President of the United States declared a “National authorities in response to the outbreak of COVID - 19, summarized here. On The facts presented principally focus on the actions taken by federal and state We accept the facts as present ed in the interlocutory transfer statement.

I. Background

the second question in the negative. used for [their] intended use” within the meaning of RSA 76:21, I. We answer the plainti ffs were “damaged” by COVID - 19 such that they were “not able to be constitutes a “natural disaster”; and (2) if so, whether the buildings owned by determine: (1) whether, for pu rposes of RSA 76:21, the COVID - 19 pandemic In this interlocutory transfer without ruling (Messer, J.), we are asked to

allow the coordinated transfer of the common questions of law to this court. motion for interlocutory transfer without ruling and motion to consolidate to separate lawsuits pending in six counties, they then filed an assented - to RSA 76:21, VII; RSA 76:17 (Supp. 2022). Observing that there were thirteen applications, they appealed to the superior court in the applicable county. See Laconia, Keene, and Manchester, and the Town of Bedford. After denial of their The plaintiffs sought relief from the municipalities involved: the Ci ties of

and that their buildings were “damaged” within the meaning of the statute. facilities. They contend that the COVID - 19 pandemic was a “natural disaster” some of which offer restaurant services a long with banquet or function Holdings, LLC — own commercial real estate on which they operate hotels, Hospitality, LLC, 700 Elm, LLC, Bedford - Carnevale, LLC, and Carnevale Hos pitality, LLC, NAKSH Hospitality, LLC, 298 Queen City Hotel, LLC, ANSHI plaintiffs — Clearview Realty Ventures, LLC, JHM HIX Keene, LLC, VIDHI not able to be used for its intended use.” RSA 76:21, I (Supp. 2022). The to unintended fire or natural disaster to the extent that it renders the building prorate” a building’s assessment “[w] henever a taxable building is damaged due M AC DONALD, C.J. RSA 76:21, I, provides that local officials “shall

brief), for defendant Town of Bedford. Upton & Hatfield, LLP, of Portsmouth (Russell F. Hilliard on the joint

Manchester. Peter R. Chiesa, of Manchester, on the joint brief, for defendant City of

the joint brief), for defendant City of Keene. Devine Millime t & Branch, PA, of Manchester (Matthew R. Johnson on p. 4 4

their claims for proration under RSA 76:21, t he plaintiffs contended “that the pursuant to RSA 76:17 and RSA 76:21. See RSA 76:21, VII. With respect to superior court seeking abatement and proration of their real estate taxes On or about August 31, 2021, the plaintiffs each filed a petition in

either denied the plaintiffs’ abatement request s or granted partial abatement s. proration of real estate taxes, pursuant to RSA 76:21. The municipalities sought an abatement of real estate taxes, pursuant to RSA 76:17, and municipalit ies on or before March 1, 2021. In their applications, the plaintiffs The plaintiffs all filed timely abatement applications wi th their respective

RSA 76:21, I. relating to how the plaintiffs’ buildings were damaged “due to” COVID - 19. See COVID - 19 is a “natural disaster” within the meaning o f the statute or facts officials, there are no facts before us supporting the plaintiffs’ contention that Aside from facts relating to regulatory steps taken by government

id. pursuant to Executive Order N o. 2020 - 0 p. 4 4 also expired on June 11, 2021. See June 11, 2021. See id. As a result, all emergency o rders that were issued - 10.pdf (last visited April 13, 2023). Executive Order No. 2020 - 04 expired on https://www.governor.nh.gov/sites/g/files/ehbemt336/files/documents/2021 28, 2021. Executive Order 2021 - 10, available at Order No. 2020 - 04 several times with the last extension being issued on May The Governor extended the State of Emergency declared in Executive

and beverage consumption”). prohibition on scheduled gatherings of p. 5 50 or more attendees and onsite food gency - order - 2.pdf (last visited April 13, 2023) (declaring a “Temporary https://www.governor.nh.gov/sites/g/files/ehbemt336/files/documents/emer # 2 Pursuant to Executive Order 2020 - 0 p. 4 4, available at operations of restaurants and other food services. See, e.g., Emergen cy Order Governor also issued emergency orders that restricted the capacities and essential businesses and requiring Granite Staters to stay at home”). The gency - order - 17.pdf (last visited April 13, 2023) (declaring the “Closure of non https://www.governor.nh.gov/sites/g/files/ehbemt336/files/documents/emer 2020 - 04, available at term rentals. See, e.g., Emergency Order #17 Pursuant to Executive Order lodging providers such as hotels, motels, bed and breakfasts, inns, and short Governor issu ed emergency orders restricting the capacities and operations of - 04.pdf (last visited April 13, 2023). Over the next several months, the https://www.governor.nh.gov/sites/g/files/ehbemt336/files/documents/2020 available at declared a State of Emergency caused by COVID - 19. Executive Order 2020 - 04, On t hat same day, the Governo r issued Executive Order 2020 - 04, in which he Emergency Concerning the Novel Coronavirus Disease (COVID - 19) Outbreak.” 5

element of the statute. c onclude that the buildings were not damaged, we do not reach the second was “due to unintended fire or natural disaster.” RSA 76:21, I. Because we establish that their buildings were “damaged” and, second, that the “damage” Under this statute, to qualify for the proration, the plaintiffs must first

Town of Sandwich, 1 p. 5 53 N.H. 175, 177 (2006). out of proportion to other property owners in the taxing district.” Porter v. abatement, which concerns “whether the government has taxed the plaintiff This tax reduction based on damage to a building is therefore distinct from an prorated calculation.” Carr v. Town of New London, 170 N.H. 10, 16 (2017). Thus, RSA 7 6:21 “offers a streamlined recovery process and a mandatory

to RSA 76:16.” RSA 76:21, VI. abil ity of the assessing officials to abate taxes for good cause shown pursuant V. Finally, the statute states that “[n]othing in this section shall limit the one percent of the total property taxes committed in the tax year.” RSA 76:21, proration under this section for any city or town” to “an amount equal to 1/2 of assessment.” RSA 76:21, II. The statute caps the “total tax redu ction from use divided by the number of days in the tax year, multiplied by the building based on the number of days that the building was available for its intended assessment for the building for the current t ax year.” The proration “shall be able to be used for its intended use, the assessing off icials shall prorate the unintended fire or natural disaster to the extent that it renders the building not RSA 76:21, I, provides: “Whenever a taxable building is damaged due to

harmony with the overall statutory scheme. Id. construe statutes in isolation; instead, we attempt to construe them in purpose and to avoid an absurd or unjust result. Id. However, we do not Id. We also construe all parts of a statute together to effectuate it s overall might have said or add language that the legislature did not see fit to include. word of a statute whenever possible and will not consider what the legislature St. Onge v. Oberten, LLC, 174 N.H. 393, 39 p. 5 5 (2021). We give effect to every possible, construe that language according to its plain and ordinary meaning. interpretation. We first look to the language of the statute itself, and, if Answering th e transferred question s requires that we engag e in statutory

II. Analysis

transferred questions. See Sup. Ct. R. 9. transfer with the trial court, which was granted (Messer, J.). We accepted both In March 2022, the plaintiffs filed an assented - to motion for interlocutory

buildings were not able to be used, or fully used, for their intend ed use.” their respective buildings and, as a result of the natural disaster, their COVID - 19 pandemic qualifies as a natural disaster that caused damage to p. 6 6

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

negative. In light of this response, we need not answer the first question. real estate taxes under RSA 7 p. 6 6:21, I. We answer the second question in the interlocutory transfer were not “damaged” so as to be entitled to a proration of Accordingly, we hold that the taxable buildings subject to this

experienced economic loss. 7 p. 6 6:21, II does not list as a factor the number of days that a business multiplied by the b uilding assessment.” (Emphasis added.) Notably, RSA available for its intended use divided by the number of days in the tax year, assessment shall be based on the number of days that the building was to a building itself. RSA 76:21, II states that “[t]he proration of the building T he overall statutory scheme supports a requirement of physical damage

ordinary meaning of RSA 7 p. 6 6:21, I. Thus, the plaintiffs’ interpretation of the statute co ntradicts the plain and requires physical damage to the building before considering any economic loss. Trust v. Town of Wolfeboro, 159 N.H. 734, 736 (2010). The statute first have said or add language that t he legislature did not see fit to include.” LLK from the statute as written and will not consider what the legislature might not exist in the plain language of the statute. “We interpret legislative intent to read ec onomic loss without physical damage into RSA 76:21 where it does negatively impacts the fair market value of the taxable buildings.” We decline hotels suffered a significant decline in income” and “the reduced income because “[s] ince the [plaintiffs] were not allowed to carry on business, the T he plaintiffs specifically argue that the b uildings were “damaged”

defendants. which the statute was intended to provide relief.” We agree with the cannot be read to be within the terms of RSA 7 p. 6 6:21 as the type of damage for property.” The defendants contend t hat the plaintiffs’ “purely economic loss “RSA 76:21 does not require a showing of direct and/or physical loss to the for their intended use under the meaning of RSA 76:21, I.” They assert that transfer] were damaged by COVID - 19, such that they were not able to be used The plaintiffs argue that “the buildings subject to this [interlocutory