Robert Carr et al. v. Town of New London

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This is Case 2016 0 3 5 0. Robert Carr, et al, versus Town of New London. Mr. Mayor, May it please the court. My name is Barton Mayor, and I represent the town of New London. The legislature enacted RSA 76 21 to create a uniform system for proration with respect to structures destroyed by fire after April one, because towns were dealing with this problem in contrary ways under the abatement statute. Then what does subsection six mean? Subsection six means that the fact that you may have a fire at your house doesn't ate the fact that you may be, uh, unable to pay your tax for alternative reasons or because it's disproportionately assessed. I don't think that, but, but Why would that have, I mean, if that, if, if that is so completely different that why would the legislature have thought it necessary to include that? I mean, it's like, it seems to me it's sort of like apples and oranges. That, that the, you know, that it, that's like the, we, we create this procedure for fire and then we send, we have some need to say, well, you know, in other, completely, in other circumstances, why would, I mean, or, or at least if they were gonna do that, why wouldn't they have said in, you know, to the extent that, um, RSA, uh, 70, uh, 7 2 16 72 16 allows a, um, abatement for other reasons, we don't intend this to, uh, restrict it. Well, I think that's one way to articulate it. Uh, but I believe that a careful reading of that language says it does not deprive the assessing officials of the authority to grant abatements under the statute. And consequently, even if a 76 21 event occurs and is properly, uh, prorated, the property tax is properly prorated, that the assessing officials understand that they still can consider the abatement for disproportionality or inability to pay that this doesn't deprive the, uh, authority to do this. What, What do you say about your opponent's argument that if I understand one of his arguments, it is that this, the 76 21 created a sort of new procedure in that under, under, unlike, under under 16, where you pay the tax and then seek an abatement under 21, you don't have to pay, you can, you can just get, you can just seek the abatement That, that argument is simply the whims of fate. Because I could have a fire on December one and have already paid my taxes in July and in the autumn, and I've paid my tax. Now I'm seeking the ation. Well, Okay, but I mean, sure. But there, but this would be a, but there would be some circumstances in which this would, you could avoid paying the tax at all. And I guess the thing I'm, I'm, what I, what I'm, the analogy I'm drawing is, as I understand it, for many years, and it may still be the case with regard to the IRS, you had, there were two, you had two choices. If you thought you were owed money by the IRS, you could not pay the tax and go and go to the tax court and try to get, you know, try to get the, get it straightened out. Or if you wanted to go to the federal district court, you had to pay the tax first and then you could sue in the district court to get the money to get a refund. And so, I mean, that in some sense, there is at least some analogy, or at least there used to be. I don't know if that's still the procedure or not, but there's, there's an analogy. I I think I'm getting a little too metaphorical now and I'm a little lost that I would be, this Is the metaphorical day. But you know, the, the question has to be in, in one's mind, and I think you're suggesting it, which is why the heck would you do 76 21? Uh, and the argument may be, well, it's an expedited procedure. Uh, the problem is, is the legislature was aware under 76 16 towns were dealing with this question in a contrary way. Right. And they intended to That the trial court found, I mean the, it doesn't that very fact hurt you that they had been dealing, some towns had been dealing with it in that way. No. And this statute says we did not, we intend to expand, not contract, no. What We're allowing First nowhere in the language of 76 21, does it even suggest that there is nothing that modifies 76 16? We also know that the legislation began, the bill began as defining good cause for abatement under RSA 76 16. And that approach was abandoned and a new and entirely separate system was created. Furthermore, what happens here is just the question you're asking, what is happening here? The plaintiff's abatement application simply recreates the problem the legislature was attempting to resolve when it adopted 76 21. Otherwise, you have 230 different interpretations of good cause for abatement and mistake. But we all all know, don't we, that when the legislature occasionally sets out to fix something, it just breaks it more. Uh, I would say that in this case, that wouldn't be the, the fact, maybe in other cases it may be, but I won't wax political on that. Mr. Mayor, let me Ask you this. Um, your, your argument is that 76 21 is the exclusive remedy for somebody whose house burns down in the middle of the year. Is that right? Correct. Okay. I'll admit, I'm a little skeptical of your position, but my skepticism is heightened by part five, which says that if somebody else has already come in for a proration and has consumed more than one half of the, um, percent of the total taxes in the community, then it's not available. Right. Doesn't say that. So, absolutely. If, uh, the new London Inn had burned down on April 2nd and okay, half, half of a percent of the town of London's tax base or tax revenue is gone, then there is no remedy under this. Right? Right. And You're saying tough. That's it. Well, Now we get to the heart of the issue. The court stated in Barksdale in over 150 years since RSA 76 16 was enacted, there have only two causes for abatement, disproportionate disproportionality, and inability to pay. Now, if I just may complete this law, 'cause this is the Central FE feature, RSA 76 2, which codified the common law sets the assessment date as April one. And in Briggs petition, the court was presented with this exact case. Fire burns down a structure person seeking abatement, but the court does not grant the abatement, although the opportunity was there, does not grant the abatement because of a fire and that the structure's no longer there. The April one date was still fixed, rather the abatement was granted because of inability to pay, which is not an issue in this case. So this court actually had a case of fire destruction and went and said, we're not paying attention to that. So the other, we're looking at the inability to pay statute. Then The other good cause language wasn't in the statute. Then I believe the good cause language was there since, uh, for 150 years as the Supreme Court stated in Barksdale. Well, maybe Judge McNamara's onto Something. Uh, he may be, I mean, ultimately this court is called upon to engage in statutory construction. So your position is that New London apparently had a practice of giving relief to people under these circumstances and many other towns did, and they were doing so in violation of the law. I would argue yes. And I would also argue that the problem extends itself. And that is that that means that unless this court holds otherwise, but that means that in Sutton right next door, they might say, no, we never granted an abatement for, for this reason. So we're not going to, now it's a uniform statute of uniform application throughout the state. And the only exception to 76 6 76 2, the assessment date, the legislature chose 76 21. It did not incorporate 76 16. Your position then is that putting a fire situation aside, take another situation where there's a terrible hurricane, big trees come down Yes. And totally destroy a house. Right? If that happens on April two, that taxpayer has no basis for an abatement other than inability to pay. That would be the case up till now. Yes. That would be the rule. And that's the statute. That's how it's always operated. In fact, we see the counterpart to that in the fact that towns cannot assess property after April one when there's an additional improvement. It, you are also begging this question, the, the next question that will come to you, which is, I voluntarily removed a barn that was in dilapidated shape. Shouldn't I get an abatement for that? The valuation of property is fixed on April one. The assessment Was not Challeng. So that the taxpayer will get to make that argument the next tax year. Absolutely. The, the next tax year. So you're saying improvement isn't There? It it is not without a remedy. In those circumstances, you say the next tax year, it will get another shot Passed. Yeah, unless of course the answer will be that's not quite accurate because someone may rebuild in that tax year. And so the event would not have quote occurred for purposes of abatement and assessment in New Hampshire. But I think the critical element here is if good cause for abatement is a fire occurring after April one or a natural disaster, then there is no need for RSA 76 21. The abatement application comes in Except for speed's granted, right. Except for a prompt resolution 60 days. Well, again, that's the whims of fate. And I say that for a second reason, not only, not only could you have a fire on February 15th, but on March one when I file my abatement application, just for whatever reason, the Board of Selectmen may look at it and say, oh dear, we didn't mean that this house was worth $2 million. It was worth 200. There was a zero attached. And the abatement would occur rather rapidly when that error is disclosed. So I'm not necessarily prepared to say that this statute simply, uh, creates an expedited process and certainly not prepared to say it creates an expedited process for abatement. And it's curious that given the nature of this event, which is not unique, uh, we had the Olin case that we, uh, presented to the court from the BTLA. It's curious that the issue never reached this court, and it's likely because of RSA 76 2. And one would also have to ask why did the legislature put an exception in for 76 21, but not 76 16? The what is happening here today is you are being asked as simple as this is to please incorporate another exception in RSA 76 2. Not only that, but where there were these contrary dealings with the abatement process in the varying communities. But You know what, what wouldn't, I guess the problem I'm having is if the, if the legislate, if towns were doing, doing what you say they shouldn't be doing, and apparently it was, it was relevant. I mean not, certainly not exclusively, they weren't uniformly doing it, but a number of towns were doing it and the legislature wanted this to be the exclusive remedy. Why wouldn't they have said, this is the exclusive remedy and not, you know, not add any reference to, to, uh, 1616. I think that actually the legislature said that in this statement of intent, it specifically says that this statute uncouples proration from the tax administration process. That's a quote. But how could they say this is an exclusive remedy and then have a paragraph that says, but if somebody else has already used that, um, you can't do it. Well, I Think, Uh, to violate all sorts of principles of fairness and proportional taxation, there's Something in my mind that tells me there is another provision in the statute that deals with that. In another way, I think during a recession, the legislature actually created a provision that dealt with multiple abatements and how much the town could be exposed to and set up a remedy for that. So that's really a configuration throughout the community that they're trying to confront and deal with that there's just no, you, you can't operate community. Well, maybe Someone should of challenged that. Well, And it may be an equal protection argument, which fortunately we don't have here. 'cause there's no dispute that the value of the property at $688,000 for the house was correct. Then no one sought an abatement, no one challenged it. So it was properly assessed and lawful. And the question presented for you today apparently is does RSA 76 section 16 provide that events occurring after April one may be the grounds for an abatement. Well maybe good cause is getting turned down under 76 21 section five. 'cause somebody else has already used up the Money. Well, perhaps that's a little beyond the, the case here and the fact pattern here. In fact, the interesting thing to me is, is that the, I don't think the legislature intended to create a cause, which is kind of a subtle implication of the question, which is, well, I was denied RSA 76 21 proration, therefore good cause has been created by the legislature. Denying me Does. But does it matter here that apparently there's an agreement that had the application for proration been made, it would've been granted. That's right. No doubt about it. I I but I don't find that unusual or offensive because what I'm saying is simple. An abatement is different than proration. The legislature said an abatement is different for preparation. There has been, uh, good cause shown has been the standard for DEC for Century and April one has been the fixed date. We've never had this problem before. And nothing in the statute modifies good cause shown. In fact, if one turns to paragraph six, it states nothing in this statute deprives the assessing authority of the ability to grant an abatement for good cause shown the language in that statute is the same as in 76 16. Not in lieu of. Thank you. Thank you very much For please the court. My name is Jay Hodis. I'm with the firm of h Hodis and I am representing Robert Carr. And, and his children in this matter, my client suffered a fire loss, which is obvious. They filed for a tax abatement pursuant to RSA 76 16, which they had a statutory right to do. So the town decided not to hear that abatement request. They foreclosed it. They said you didn't file under section 21, so you're out of luck. They never got to the merits of my client's application. They never decided if my client had good cause they never reviewed the application. They did this because their assessor told them that with the adoption of section 21, you no longer can consider this as good cause. So they never got to it. So that was per se error and they ba it was based on the advice of their assessor. Then, uh, without judging the merits of my client's, uh, uh, application, I filed a motion for reconsider with the town saying, you're wrong, you're not looking at the statute correctly. And I explained it all to him. Again, they denied my client. Is there a, a Dispute about your client's ability to pay? Ability to pay? No. Okay. So, so we're faced with a situation where the burning of the house did not create a situation where the taxpayer could not afford the tax. That's correct. Okay. My client pays about $38,000 of taxes to the town New London. We asked for a partial abatement equaling 9,000 for the loss of the house. And the town acted oppressively in every other case the town has ever gotten in which a house has burned down. And it's on their records. They produced the records. I didn't They have granted the abatement when a, a fire strikes, but That was before the statute. That is correct. Is that issue That's right. And the assessor took the position that because of the new statute, they no longer had their discretion to do that. And that was incorrect. And you Know, I'm sorry, can I just ask you, Mr, in the earlier, in the earlier cases that you're just talking about where the, the abatement that the town grant, that the abatements that the town granted were those generally again, prorated abatements. Exactly. And that's what I asked for a prorated abatement. I followed what new London had done over the years. I didn't ask for a hundred percent abatement. I said the number of days the house was unusable, it burned to the ground. It was ash treat us the same as you've treated all your other citizens. And they said, no, we can't do it anymore. We don't have the Discretion. As, as I understand it, the fire was on July 1st, 2014. Correct. When was the abatement application filed? January. Because you can't file an abatement until close of the tax year. It says you can't file an abatement until the second. The issue, uh, the notice of tax issued. The notice of tax happens to be the second tax bill in New Hampshire. So you usually don't get your second tax bill until December. You can file in January through March. So I filed immediately, I filed January something way before the March deadline. So as soon as I possibly could lawfully file for my clients, I did. And then of course we didn't get the decision. The superior court reviewed this, they applied the rules of cons of statutory construction. And that's what we're talking about, how to construe these two statutes together and things like we do not add words the legislature chose not to include. Well that's what they, they're trying to do. That would town word town's trying to do that. That would be Exclusive, that would be the word exclusive. The preemption argument. I'm not sure. Are you saying that they're adding words and those words would be that this is the exclusive remedy period under 21? Well, yeah. Yes. But what they're saying is, uh, section six says you can still apply for abatement if it's for poverty or disproportionality. Well, it doesn't say that at all. But that's their argument. Or they're saying that because in the, in the statement of intent, it talked about if you don't qualify under 21, you, you can still apply. It doesn't say that in the statute. The legisla didn't put that language in there. They said nothing in this section prevents a, a good cause of, well, I mean is there Anything in the legislative history that indicates that the legislature intended what they were doing to be a restriction? In other words, to make it more difficult than it had been before to get, to get um, an abatement or a proration? No, absolutely the opposite. 'cause in the beginning of the statement of intent, they say, we recognize that a fire loss should be treated as an act where a person can get an abatement and some towns are doing it, some towns are not. And then it goes on to say, we're not trying to make it harder. So the court concluded that there's two alternative remedies here. Nothing wrong with that. One is a proration of the assessment, which can happen immediately. One is the abatement procedure, which is hard. You have to wait the time you have to pay the taxes, you have to file the paperwork. You, you're not approved. You have to appeal the superior court. And I was hoping I would never have to go to superior court. I was hoping that once a lawyer got involved, we would resolve this matter. 'cause it was obvious that they were making a mistake. Their assessor had concluded something, it shouldn't have been concluded. And they weren't following their own procedures in the town. They were treating my client oppressively and different than any other citizen they've ever had before them. And that was wrong. And the legislature didn't say to do that. The legislator was seeking to give them more relief. Tax abatement, statutes are supposed to be remedial in nature, supposed to aim for fairness. Justice, the town of Newland has done nothing equitable here. Nothing, just nothing fair. And they can't argue that. So Your client, do I understand correctly, lost his house to fire and the tax bill remains the same to this? Exactly. To this day, No, I don't, I don't know about what is today, but for that, but There was no relief for that Year. That year there was no relief whatsoever. So, so what theoretically could happen is your client wouldn't get relief for the tax year at issue if your client rebuilt then as a practical matter, it wouldn't have a basis to seek an abatement the following year. Well, yes. If they rebuilt, correct. If They rebuilt right. If they didn't rebuild, then the town would have to reflect the fact that no structure exists. Right? Right. It would have to do an inventory as of April one and reset the value. But We're, we are talking about the year of the fire. I understand. And the destruction only. And that's the only thing my client was seeking that one, that nine months of an abatement really, let me just comment on a couple other points. The town in its brief states that, uh, my client was given notice, uh, of the, uh, fact that he should have filed under section 21. Well, you know what they did? They sent an email to the maintenance man, the person who was cleaning up the fire debris who was responsible for mowing the lawn and snow plowing. And they said to that person, here's an application, it has to be filed timely. You can't send notice to a, a gardener or a snow plower and consider that due process. They had my client's address. They'd send him the tax bills. What? Didn't they send that to my client? If they file, well, What, what would be the legal result then? What if they had sent, um, undisputable notice to the taxpayer? Would that have um, uh, vitiated your argument? I I don't think it would've, but it probably would've prompted my client to file an application. Truth of the matter is no one knows about this statute. It was adopted in 2013. So Your client was, you say, was unaware. My client was unaware statute, but they're, they're alleging that my client was given notice. That's the only reason I'm making that point. Okay. They also say they changed their policy. That's not true either. I was the only person to file an application for a fire damaged property. And when I did my discovery with them, I asked, have you ever had an application under section 21? The answer is no. So they can't say they changed their policy. They've never had a request for a fire abatement either before, after my client. There's no policy change, there's no ordinance adopted in the town. There's no policy statement by the selectmen. So they're making these statements in their brief and in their court that are not accurate. And I want the court to know that. Let me also comment out, why doesn't this court have hundreds of cases dealing with fire damage? It's a practical matter. If someone in my town loses their house to a fire and they go before my Board of selectmen and asks for an abatement and this and the selectman give it to them, no one can appeal that. I don't have standing to appeal as another taxpayer, a neighbor, a person who lives in the town. It has to be a person aggrieved by the tax or the abatement. I'm not aggrieved by. So that case would never reach here. So in hundreds of towns where abatements are granted because of fire loss, it would never get appealed. And in the other, on the, on the converse, if the, if you're in a town with selectman deny it is that taxpayer going to appeal it. It's expensive to appeal it. You have to go to superior court, you have to hire a lawyer. The practicalities of it is that you would spend more on the appeal then it's worth. So the, so there's not a wealth of cases on this issue, but fire loss or loss due to hurricane natural disaster has been treated as good cause in many towns throughout the state. And it's never been determined not to be and good cause as we know is not defined. Let, lemme ask you a practical question. If, and I don't know the answer to this. Let's say, um, there were two applications. One was under the fire law statute and one was for an abatement. Do the dollars come out the same? In other words, what's at stake here? If we agree with you, The dollars are the same. So shouldn't the dollars just have been paid and forget the fight about which statute controls? I couldn't agree more. And I asked the town on three different occasions to do that. And I feel that they've acted unfairly to my client. We talk, you could talk about equal protection. They've treated him differently to every other citizen. And I would ask that my client be compensated for their attorney's fees in this matter because they should not have to go through this. When a municipality takes away a rights of citizen, we A new statute. I understand the equities of this, but we do have a new statute. And so when you say your client's been treated differently than everybody else, we have everybody else before the statute and then we have only your client after the statute. 'cause your discovery disclosed that there is no other person in your client's position that is fire loss after the statute, right? That is correct. Okay. But the statute on its face, and again, let's use plain and ordinary language says nothing in this provision prevents a person from applying for an abatement under RSA 76 16 and 76 16 says that a person aggrieved by a tax assessment has a right to appeal. It's not the town that appeals, it's the person. So, so what is, so they were not taking away the Person's, right? So what is your position if a house is destroyed in a hurricane? Big trees fall on it. It's totally destroyed. Do you say that taxpayer under the abatement statute, the for cause section should be entitled to an abatement hurricane happening after April one? Yes. It's, it's, it's an, it's, it's, it's good Cause I would advise that person, they came to my office to file immediately under 21. 'cause it's easier and it's more, you get, you get your But 21 only deals with fire, Right? No, I think it says natural disaster. Oh, I'm sorry. Okay. So I, I would advise a client to file immediately under 21. Okay. And why go through the headache of an abatement And under section five you could file and be entitled to it, but if the credit's already gone, then what do you do? You go get a try to for an abatement? I think the court, the superior court did a, did a did a good job. I'm obviously here to support their decision. They went through the, uh, the statutes, they went through the concepts legislative intent. They in fact went into, went into legislative. I don't think you have to, I think we could have ju viewed this just on the plain order meeting of the language. But the court went further and still found for my client. But my concern is your client, uh, your opponent is arguing that if we do, as you say, we are opening the floodgates with regard to the meaning of good cause. Contrary to our case law. That's his argument. I disagree with that. I think our case law, the majority of cases are disproportionality, but the statute doesn't talk about, disproportionalities talks about disc personalities, talks about good cause and, and, and, and, and poverty. And there's really two cases on it. And again, the practical matters, you're not gonna get these cases if the selectman grant an abatement for a natural disaster, no one's going to appeal it. They can't, no citizen can appeal that. And if they don't get it, they're probably not gonna appeal to the Supreme Court like I had to do in this case. Uh, because it costs so much more than it's worth. My client is paid three times the abatement they're seeking in this case. Thank you. Case submitted. Councilman.