Appeal of City of Berlin

This is an appeal by the City of Berlin (“Berlin” or the “City”) of a Decision (the “Decision”) by the New Hampshire Board of Tax and Land Appeals (the “BTLA”) to apply the New Hampshire Department of Revenue Administration’s (the “DRA’s”) 2017 median equalization ratio to a Tax Year 2017 tax appeal brought by Public Service Company of New Hampshire d/b/a Eversource Energy (“Eversource”) in order determine the proportionality of an assessment.

Pursuant to RSA 76:17, Eversource filed a number of tax appeals with the BTLA concerning the market value and proportional assessment of its taxable property located in various municipalities (the “Municipalities”) for Tax Years 2014, 2015, 2016 and 2017. Among the appeals filed by Eversource was one for Tax Year 2017 concerning the market value and proportional assessment of the J. Brodie Smith Hydro-Electric Station (“Smith Hydro”), which is the subject of the instant appeal. Following four weeks of consolidated hearing, in June 2020 the BTLA issued its Decision, concluding that abatements should be granted in a number of the pending appeals, including the appeal concerning Smith Hydro, based upon the market value estimates of the Municipalities’ expert, George E. Sansoucy, LLC (“GES”). In calculating the refund due to Eversource, the BTLA applied the DRA’s 2017 median equalization ratio for Berlin to the 2017 fair market value estimate proffered by GES to arrive at its conclusion of a fair and proportional assessment. On July 23, 2020, Berlin filed a Limited Motion for Rehearing regarding the BTLA’s Decision, asserting that the DRA’s 2016 median equalization ratio should be applied to the 2017 Tax Year. Eversource objected. The BTLA ultimately denied the Motion. Berlin then filed a Rule 10 appeal with this Court.

The sole issue raised on appeal is whether the BTLA erred in applying the 2017 median equalization ratio determined by the DRA to the 2017 fair market value conclusion proffered by Berlin’s expert to arrive at the BTLA’s conclusion of a fair and proportional assessment of Smith Hydro for the 2017 Tax Year.

Eversource is an electrical utility provider for residential and business customers across New Hampshire. In Tax Year 2017, Eversource owned transmission, distribution and generating assets across New Hampshire. Since that time, Eversource has divested its generating facilities pursuant to an agreement reached with various stakeholders and approved by the New Hampshire Public Utilities Commission. See, In Re Pub. Serv. Co. of N.H. - Order Approving Settlement Agreements, NHPUC Dockets DE 11-250 & 14-238, Order No. 25, 920, 2016 N.H. PUC LEXIS 62 (July 1, 2016); In Re Pub. Serv. Co. of N.H. - Order Approving Sale of Hydroelectric Generation Facilities, NHPUC Docket DE 17-124, Order No. 26, 080, 2017 N.H. PUC LEXIS 100 (Nov. 29, 2017). For Tax Years 2014, 2015, 2016 and 2017, Eversource filed tax appeals with the BTLA pursuant to RSA 76:16-a concerning the market value and proportional assessment of its taxable property located in certain municipalities on the basis that the appealed municipal assessments were excessive and disproportional. Berlin’s Appd’x at 99 – BTLA Decision. 1 The BTLA consolidated Eversource’s 2014 – 2017 tax appeals for hearing. Eversource’s Appd’x at 3-24 – Order and Hearing Notices, dated May 29, 2018 & March 21, 2019. Many of Eversource’s tax appeals were settled prior to the time of hearing; ultimately, appeals involving 47 municipalities were considered by the BTLA. Appeals for 46 municipalities concerned the market value and proportional assessment of property associated with Eversource’s transmission and distribution system, including associated land rights, as well as fee land and conventional buildings. See, Berlin’s Appd’x at 99 – BTLA Decision. One appeal for Tax Year 2017 concerned the market value and proportional assessment of a generating facility – Smith Hydro – the subject of this appeal currently before the Court. Id.2 Berlin did not oppose the consolidation of the cases for hearing and did not move to sever its case to be heard separately before the BTLA. See generally, id.

Eversource and the Municipalities involved in the 2014 – 2016 appeals stipulated to certain facts and data at the direction of the BTLA prior to any hearings being held. Eversource’s Appd’x at 3 – Order and Hearing Notice, dated May 29, 2018. In each case, the parties agreed that the DRA’s median equalization ratio applicable to a particular tax year Id. After that process was completed, the BTLA ordered the consolidation of Eversource’s Tax Year 2017 appeals with the 2014 – 2016 appeals. Eversource’s Appd’x at 17 – Order and Hearing Notice, dated March 21, 2019. The BTLA did not require the parties to submit similar stipulations for the 2017 appeals.

Shortly before hearings began before the BTLA, Eversource’s counsel was informed by Municipal counsel that some Municipalities might argue for utilizing the preceding year’s median ratio as set by the DRA in lieu of the 2017 ratio, though Municipal counsel declined to advise which Municipalities might take such a position. Berlin’s Appd’x at 4-22 – Motion to Adopt DRA Median Equalization Ratio; Berlin’s Appd’x at 205- 10 – Tr. Day 1, pp. 20-24. Eversource promptly filed a “Motion to Adopt the Stipulated Median Equalization Ratios for Tax Years 2014, 2015, and 2016 and the New Hampshire Department of Revenue Administration Median Equalization Ratios for Tax Year 2017 to Determine Proportional Assessments.” See id. As part of its Motion, Eversource proffered the applicable tables showing the median equalization ratios established by the DRA for 2017 and argued that those ratios reflected the general level of assessment in the Municipalities involved in the 2017 appeals and should be used to determine the proportionality of Eversource’s assessments in accordance with the established decisional law of New Hampshire, including the Appeal of City of Nashua, 138 N.H. 261 (1994). Id. Eversource also requested that the BTLA, relying on its specialized knowledge of assessment matters (including equalization), take administrative notice of the DRA’s conclusions. See, Berlin’s Appd’x at 205-10 – Tr. Day 1, pp. 20-24.

In response to Eversource’s Motion, the Municipalities filed a “Partial Objection to Taxpayer’s Motion to Adopt the DRA Median Equalization Ratios for 2017.” Berlin’s Appd’x at 23-30 – Municipalities’ Partial Objection. The Municipalities agreed to utilize the stipulated-to equalization ratios for Tax Years 2014, 2015 and 2016. Id. Moreover, all of the Municipalities with Tax Year 2017 appeals agreed to utilize the DRA’s 2017 median equalization ratios except for Berlin and the Town of Dummer (“Dummer”). Id. Berlin and Dummer argued that because they did not stipulate to any level of assessment and did not use the DRA’s 2017 median equalization ratios when setting their 2017 assessments and tax rates, that the DRA’s 2016 median equalization ratios should be applied to the Tax Year 2017 appeals. Id. 3 On the third day of hearings, the BTLA heard oral arguments from Eversource’s counsel and Municipal counsel regarding the proper equalization ratio to be utilized for the Tax Year 2017 appeals of Eversource’s property located in Berlin and Dummer. Eversource’s Appd’x at 38-45 – Tr. Day 3, pp. 243-49. Berlin’s counsel admitted during those arguments that the spread between the 2016 and 2017 ratios was the driver behind Berlin’s position. Id. Following oral argument by counsel on the proper ratio to be utilized, the BTLA took the matter under advisement. Notably, the DRA’s 2016 median equalization ratio for Berlin was 110.7%, while the 2017 median equalization ratio was 96.2%. Berlin’s Appd’x at 17-22 – 2017 DRA Median Equalization Ratios; Eversource’s Appd’x at 38-45 – Tr. Day 3, pp. 243-49. Berlin’s expert concluded that the 2017 fair market value of Smith Hydro was $49, 000, 000. Eversource’s Appd’x at 46-49 – GES Appraisal Report. As such, applying the DRA’s 2017 median equalization ratio to Berlin’s own expert’s fair market value conclusion for Smith Hydro, Eversource was due a refund. See, Berlin’s Appd’x at 99, 102, 115-19, 135 – BTLA Decision (showing the assessed value of Smith Hydro for Tax Year 2017 was $56, 512, 800) (further showing that GES’s market value conclusion for Smith Station equals $47, 138, 000 when adjusted by the 2017 level of assessment, resulting in an over assessment of 16.59%, or $9, 374, 800). Conversely, applying the 2016 median equalization ratio to Berlin’s expert’s fair market value conclusion, no refund would be due to Eversource.

After the close of Eversource’s case-in-chief, the Municipalities filed a “Joint Motion for Directed Verdict.” Berlin’s Appd’x at 31-57 – Joint Motion for Directed Verdict. Eversource objected. Berlin’s Appd’x at 58- 98 – Objection to Joint Motion for Directed Verdict. Both parties’ pleadings addressed Berlin’s and Dummer’s arguments against using the DRA’s 2017 median equalization ratio for the Tax Year 2017 appeals. By Order dated November 19, 2019, the BTLA denied the Municipalities’ “Joint Motion for Directed Verdict.” Eversource’s Appd’x at 25 – Order, dated November 19, 2019. That same date, the BTLA issued its ruling on the proper equalization ratio to be utilized for the Tax Year 2017 appeals of Eversource’s property located in Berlin and Dummer. The ruling was made on the record, with the BTLA stating: The other thing is we’ve reviewed the taxpayer’s motion to adopt the stipulated median equalization ratios for tax years ’14 through ’16 and the DRA median ratios for ’17 and the municipalities’ partial objection to the taxpayer’s motion, as well as the oral arguments that have been presented to the Board relative to these issues, and to avoid any surprises, the Board intends to rule for each municipality, including Berlin and Dummer, it’s proper to apply the DRA’s median ratio for the intended tax year 2017 instead of the prior tax year, 2016. And we looked at the Appeal of Nashua specifically, which is 138 New Hampshire 265 to 267, in making our ruling.

Berlin’s Appd’x at 236-237 – Tr. Day 10, pp. 7-8 (emphasis added).

The consolidated hearings before the BTLA concluded on December 11, 2019. The parties filed post-hearing memoranda on January 31, 2020. See generally, Eversource’s and the Municipalities’ Post-Hearing Memoranda. While the Municipalities styled their post-hearing memorandum as a “renewal” of their earlier motion for directed verdict, they did not move for reconsideration of the BTLA’s denial of their prior request for a directed verdict. Id. On February 21, 2020, the parties filed reply memoranda. See generally, Eversource’s and the Municipalities’ Reply Memoranda. In all of these briefs, Eversource, Berlin and Dummer argued their respective positions regarding the proper equalization ratio to be used for the Tax Year 2017 appeals.

On June 23, 2020, the BTLA issued its Decision. 4 Affirming its earlier ruling, the BTLA found that the median equalization ratio for a given year should be applied to appeals filed for that same tax year, not the ratio for a prior year. See, Berlin’s Appd’x at 99, 113-15 – BTLA Decision. In rejecting Berlin and Dummer’s arguments that the DRA’s 2016 median equalization ratios should be utilized for Tax Year 2017 appeals, the BTLA noted that while the “quantitative motivations for wanting to apply a prior tax year median ratio are clear” that “[s]uch motivations cannot…prevail or override established law.” Id. at 115. The BTLA explicitly cited the following decisions of this Court and its own decisions as “dispositive” of this issue: Appeal of City of Nashua, 138 N.H. at 266-67; Appeal of Andrews, 136 N.H. 61, 65 (1992); and North Country Environmental Services, Inc. v. Town of Bethlehem, BTLA Docket No. 19709-02 PT, et al., 2007 N.H. Tax LEXIS 24 (May 7, 2007). Id. at 114. On July 23, 2020, Berlin filed a “Limited Motion for Rehearing” with the BTLA. 5 Berlin’s Appd’x at 140 – Limited Motion for Rehearing. Eversource filed a timely Objection. Berlin’s Appd’x at 164 – Objection to Limited Motion for Rehearing. The BTLA denied Berlin’s “Limited Motion for Rehearing, ” rejecting Berlin’s “somewhat misleading claim” that the Tax Year 2016 ratio was the only ratio “known or knowable” when the Tax Year 2017 assessment was set. Berlin’s Appd’x at 180 – Order dated September 18, 2020. The BTLA’s Order further recognized that the “responsibility of an assessor is to estimate market values, not calibrate assessments of any taxpayer, such as a utility, to achieve a tax revenue target.” Id.

Following the BTLA’s decision, Berlin filed an appeal with this Court pursuant to Rule 10.

This Court should affirm the BTLA’s Decision to apply the DRA’s 2017 median equalization ratio to the 2017 fair market value conclusions of Berlin’s own expert for Smith Hydro in order to arrive at a fair and proportional assessment for the 2017 Tax Year. Contrary to Berlin’s claims, Eversource met its burden in establishing the fair market value of its property and the general level of assessment in the City. Berlin’s Brief, p. 10. The BTLA, in its role as the finder of fact, made conclusions of value and determined the 2017 equalization ratio most representative of the general level of assessment in Berlin for 2017. Its Decision was grounded in the evidence and the established law of this State. Accordingly, the City has not met, and cannot meet, its burden of showing that the BTLA’s Decision was “clearly unreasonable or unlawful.” In Re Campaign for Ratepayers’ Rights, 162 N.H. 246, 249 (2011); RSA 541:13. The BTLA’s Decision should be affirmed.

Berlin’s appeal presents six questions for the Court to consider, consisting of four arguments. The City argues: (1) that the City was entitled to “directed verdict or post-trial judgment as a matter of law because [Eversource] failed to carry its burden of proving the general level of assessment”; (2) the BTLA erred in applying the 2017 median equalization ratio to Eversource’s Tax Year 2017 appeals as a matter of law and that the decision was unsupported by the evidence; (3) the BTLA “committed reversible error by relying upon documents from outside the record” to deny its “Limited Motion for Rehearing”; and (4) the BTLA “committed reversible error by making a factual determination in [Berlin’s] case based on the litigation decisions” of other municipalities. See, Berlin’s Brief, pp. 7-9. Put simply, none of these arguments warrant reversing the BTLA’s Decision.

As an initial point, Berlin’s appeal attempts to raise issues that were not raised in litigation and were not the subject of the post-Decision Motion before the BTLA. This improper attempt to raise issues for the first time on appeal precludes consideration.

Substantively, Berlin’s appeal raises no errors of fact or law: the BTLA, as the finder of fact, properly decided to apply the DRA’s 2017 median equalization ratio to determine the proportionality of the 2017 assessment of Smith Hydro. The BTLA’s Decision, concluding “that a current year statistic is more valid than a prior year statistic” was based on the established law of New Hampshire together with the evidence presented, including Eversource’s submission of the DRA’s 2017 median equalization ratios for all communities in New Hampshire, including Berlin. See, Berlin’s Appd’x at 99, 113-15 – BTLA Decision. Berlin never challenged the statistical accuracy of the DRA’s conclusions or the methodology employed by the DRA in reaching its conclusions in its equalization study for 2017.

While Berlin may have “quantitative motives” to apply the preceding year’s equalization ratio to its expert’s fair market value conclusions – i.e. in order to value Eversource’s property at a higher figure such that the City can collect the most taxes – as the BTLA’s Decision aptly observes, quantitative motivations do not justify deviating from well- established jurisprudence and sound assessment practice. Id. at 115. Berlin seeks to overturn recognized procedures to determine the general level of assessment for property tax appeals solely to deny or substantially limit an abatement to one taxpayer. This Court should reject Berlin’s arguments and affirm the BTLA’s Decision.

Appeals from BTLA decisions are governed by RSA 541. “The BTLA’s findings of fact are deemed prima facie lawful and reasonable.” Appeal of Town of Charlestown, 166 N.H. 498, 499 (2014); RSA 541:13. As the trier of fact, the weight to be given to evidence is within the BTLA’s province. Appeal of Newcomb, 141 N.H. 664, 668 (1997). The BTLA is entitled to utilize and rely upon its “experience, technical competence, and specialized knowledge…in the evaluation of the evidence.” RSA 541- A:33, VI.

Moreover, as the trier of fact, the BTLA “is free to accept or reject expert testimony and to determine the weight accorded to it. It is ‘not required to believe even uncontroverted testimony.’” Town of Newbury v. Landrigan, 165 N.H. 236, 241 (2013) (citing Cook v. Sullivan, 149 N.H. 774, 780 (2003)) (quoting Town of Atkinson v. Malborn Realty Trust, 164 N.H. 62, 66 (2012)). Likewise, this Court will defer to the trier of fact’s judgment on such issues as resolving conflicts in the testimony, measuring the credibility of witnesses, and determining the weight to be given evidence. Malborn Realty Trust, 164 N.H. at 66-67; Appeal of City of Nashua, 138 N.H. at 264-65; Appeal of Public Service Company of N.H., 170 N.H. 87 (2017).

Decisions of the BTLA “shall not be set aside or vacated except for errors of law, unless the court is satisfied, by a clear preponderance of the evidence before it, that such order is unjust or unreasonable.” RSA 541:13; see also, Appeal of Liberty Assembly of God, 163 N.H. 622, 625 (2012). Thus, in order to prevail in this appeal, the City must establish “by a preponderance of the evidence that the BTLA’s decision was clearly unreasonable or unlawful.” Appeal of Town of Charlestown, 166 N.H. at 499. In reviewing the BTLA’s Decision, this Court’s task “is not to determine whether [it] would have found differently” than the BTLA, “or to reweigh the evidence, but to determine whether the findings are supported by competent evidence in the record.” See, Appeal of Phillips, 165 N.H. 226, 235 (2013).

Berlin’s appeal improperly attempts to raise matters not raised before the BTLA. The Court should decline to consider those issues as they provide no basis for reversing the BTLA’s Decision. This Court’s standard for review of BTLA orders and decisions is set forth by statute. See, RSA 541:13; RSA 71-B:12 (providing BTLA decisions may be appealed in accordance with RSA Chapter 541); see also, Appeal of Town of Charlestown, 166 N.H. at 499. For an appeal to be properly made to this Court, an appellant must have properly moved for reconsideration before the BTLA. See, RSA 541:3 and 541:6. Failure to do so precludes appellate review. See, e.g., BankEast v. Michalenoick, 135 N.H. 65, 67 (1991) (citing Daboul v. Town of Hampton, 124 N.H. 307, 309 (1983)); Appeal of Atlantic Connections, Ltd., 135 N.H. 510 (1992).

Similarly, the failure to raise a claim at the earliest possible time before an administrative agency constitutes failure to preserve the issue for appellate review. Id.

Berlin (together with the other Municipalities) moved for a directed verdict at the close of Eversource’s case-in-chief. Berlin’s Appd’x at 31-57 – Joint Motion for Directed Verdict. Eversource objected. Berlin’s Appd’x at 58-98 – Objection to Joint Motion for Directed Verdict. By Order dated November 19, 2019, the BTLA denied the Municipalities’ “Joint Motion for a Directed Verdict.” Eversource’s Appd’x at 25 – Order, dated November 19, 2019. While the Municipalities “renewed” their request for a directed verdict in their post-trial memorandum, neither Berlin nor any of the other Municipalities moved for reconsideration of the BTLA’s denial of their motion. See generally, Municipalities’ Post-Hearing Memoranda. In addition, at no point in Berlin’s 79-paragraph “Limited Motion for Rehearing” did the City challenge the BTLA’s decision denying its request for a directed verdict. Berlin’s Appd’x at 140 – Limited Motion for Rehearing.

Berlin’s failure to seek reconsideration or review by the BTLA of its decision denying Berlin’s request for a directed verdict precludes consideration of that issue at this stage of the litigation. II. Eversource Met its Burden of Demonstrating the General Level of Assessment in Berlin for Tax Year 2017 and Berlin Was Not Entitled to a Directed Verdict or Post- Trial Judgment as a Matter of Law.

In seeking to reverse the BTLA’s Decision, Berlin argues that Eversource “failed to introduce any evidence” to support the use of the DRA’s 2017 median equalization ratio to determine the proportionality of the 2017 assessment of the Smith Hydro facility. See, Berlin’s Brief, pp. 24-29. This argument lacks merit both as a matter of fact and as a matter of law.

A review of the extensive record on what equalization ratio should be applied to Eversource’s Tax Year 2017 appeal of Berlin’s assessment on Smith Hydro makes clear that Eversource put on sufficient evidence as to the proper equalization ratio to be used. Prior to the start of the consolidated hearings, Eversource moved for the BTLA to adopt the DRA’s median equalization ratios for Tax Year 2017 to determine proportional assessments. Berlin’s Appd’x at 4-22 – Motion to Adopt DRA Median Equalization Ratio. With that filing, Eversource submitted a table of the DRA’s 2017 median equalization ratios for all communities in New Hampshire, including Berlin. Id. at 22. Eversource also requested the BTLA take administrative notice of the DRA’s conclusions. 6 Berlin’s Appd’x at 205-10 – Tr. Day 1, pp. 20-24. Under New Hampshire law, these efforts met Eversource’s burden to support the use of the DRA’s 2017 median equalization ratio to determine the proportionality of the 2017 assessment of Smith Hydro.

Neither Berlin nor any of the other Municipalities ever challenged the statistical accuracy of the DRA’s conclusions nor did they ever challenge the methodology behind the DRA’s calculations of the median equalization ratios for any municipality for any tax year on appeal. See generally, Berlin’s Appd’x at 99 – BTLA Decision. Moreover, neither Berlin nor any of the other Municipalities ever challenged the DRA’s authority to conduct an annual equalization study to determine the general level of assessment in each New Hampshire municipality. Id. This authority is prescribed by statute and the DRA’s procedures for conducting these studies are laid out in its administrative rules. See, RSA 21-J:9-a; N.H. Admin. R. Rev. 2800, et. seq. Berlin’s sole complaint is that the DRA’s 2017 median equalization for the City should not be applied to Eversource’s 2017 appeal and instead the DRA’s median ratio for 2016 should be used. 7 Therefore, Berlin cannot credibly claim that Eversource failed to introduce sufficient evidence upon which the BTLA could conclude that the DRA’s 2017 median equalization ratio should be applied to determine the proportional assessment of Smith Hydro for the 2017 Tax Year.

Indeed, as the BTLA has previously recognized, to require a taxpayer to submit evidence of the proportional level of assessment beyond submitting the DRA’s median ratio for the tax year under appeal, under the circumstances presented by this case, could result in the “absurd extension ... for all municipalities to routinely not concur with DRA’s ratio and force all taxpayers to provide an expensive duplicative proportionality study or automatically not prevail in their appeal.” Spiros Flomp v. City of Nashua, BTLA Docket Nos.: 7118-89, et al., 1993 N.H. Tax LEXIS 599 (Aug. 13, 1992). As the BTLA held in its Decision, to the extent Berlin argues that Eversource “was legally required to put on evidence to disprove their [Berlin and Dummer’s] own contention in these appeals that use of a prior year median ratio is more representative of the current year level of assessment, ” such an “argument borders on sophistry.” Berlin’s Appd’x at 115 – BTLA Decision (emphasis in original). The BTLA explained further: It is one thing to question what statistic best measures the level of assessment (median ratio or weighted mean, for example) but quite another to require a party to prove what should be obvious (i.e., that a current year statistic is more valid than a prior year statistic). [Cf. Como v. Town of Sharon, BTLA Docket No. 24028-08PT (September 3, 2010), pp. 4-7].

See, Berlin’s Appd’x at 115 – BTLA Decision.

The BTLA’s finding – that Eversource met its burden – is well supported by this Court’s prior holdings, too. This includes the Appeal of Nashua, which the Board specifically cited in concluding that Eversource properly introduced evidence of the equalization ratio to be utilized and the fact that the 2017 ratio should be applied to 2017 appeals. Berlin’s Appd’x at 236-237 – Tr. Day 10, pp. 7-8; Berlin’s Appd’x at 114 – BTLA Decision; see also, Appeals of Bow, Newington & Seabrook, 133 N.H. at 194.

Berlin’s suggestion that the Appeal of Sunapee should result in reversal of the BTLA’s Decision is wrong as a matter of law. Berlin’s Brief, pp. 25-26; see also, Appeal of Sunapee, 126 N.H. 214 (1985). The Appeal of City of Nashua – decided by this Court nine years after Sunapee – rejects a “strict interpretation of Sunapee” whereby “the city’s categorical rejection of the department’s ratios” – there and here – “would have forced the plaintiffs to ‘introduce further proof of the general level of assessment.’ Presumably, such further proof would have necessitated an expensive duplication of the department’s equalization ratio studies for each of the relevant tax years.” Appeal of City of Nashua, 138 N.H. at 266 (quoting Appeal of Sunapee, 126 N.H. at 218). Recognizing this absurd result, this Court laid out the process which governs in the event a municipality does not agree to stipulate to the use of a particular ratio: [I]n tax abatement cases before the board, a municipality must disclose its preferred equalization ratio. If it employs its own uniform ratio to discount properties’ fair market values to assessed values, a municipality must make a good faith offering of this ratio, as well as the methodology by which it computed the ratio. The plaintiffs, then, may offer proof that another ratio, perhaps the department’s ratio, more closely reflects the general level of assessment. In the event of a disparity, the board, in its role as finder of fact, RSA 76:16-a, V, shall determine the equalization ratio most reasonably representative of the general level of assessment.

Appeal of City of Nashua, 138 N.H. at 266-67 (citing Appeal of Andrews, 136 N.H. at 65) (emphasis added).

Here, the BTLA properly applied the holding of the Appeal of the City of Nashua to Eversource’s Tax Year 2017 appeal on Smith Hydro. After Eversource submitted evidence of the DRA’s 2017 median equalization ratio for Berlin and asked the BTLA to take administrative notice of the DRA conclusions, Berlin then argued for using the DRA’s 2016 median ratio. The BTLA then properly decided, as the finder of fact, that the 2017 DRA ratios should be applied. Berlin’s Appd’x at 236-237 – Tr. Day 10, pp. 7-8; Berlin’s Appd’x at 113-15 – BTLA Decision. The City’s argument that there is a lack of authority as to whether the DRA’s equalization ratios are sufficient to establish the general level of assessment ignores the established decisional law on this question. See, e.g., Appeal of City of Nashua, 138 N.H. at 266-67. Berlin’s argument is particularly misplaced because none of the parties questioned the propriety of the DRA’s equalization ratios. Rather, all the DRA was deciding was which of the DRA’s ratios should be used – the one for the tax year at issue (as proposed by Eversource and accepted by the dozens of Municipalities other than Berlin and Dummer) or the outdated one for the prior tax year (as proposed only by Berlin and Dummer). Moreover, the BTLA’s determination and its application of the holding in the Appeal of the City of Nashua was consistent with its prior holdings on the same question. See, e.g., North Country Environmental Services. Inc. v. Town of Bethlehem, BTLA Docket No. 19709-02 PT, et al.; J. Robert and Constance Gibbens v. Town of Center Harbor, BTLA Docket No. 15241-94PT, 1996 N.H. Tax LEXIS 165 (Sept. 16, 1996); Ronald J. and Joyce L. Como v. Town of Sharon, BTLA Docket No. 24028-08PT, 2010 N.H. Tax LEXIS 88 (Sept. 3, 2010).

Given that the BTLA’s determination of the appropriate equalization ratio was a factual determination which it could properly make, based on the parties’ submissions, controlling New Hampshire law and its own technical expertise and knowledge in this area, the BTLA’s Decision should be affirmed.

III. Consistent with Well-Established New Hampshire Jurisprudence, the BTLA Finding that the DRA’s 2017 Equalization Ratio Should Be Applied to a Tax Year 2017 Appeal to Determine Proportionality Was Correct as a Matter of Law and Supported by the Evidence.

The BTLA’s factual determination to apply the DRA’s 2017 median equalization ratio to establish the proportionality of Berlin’s 2017 assessment on Smith Hydro complied with New Hampshire law and was not unjust or unreasonable.

Berlin first argues that “[a]ll of the evidence in the record supported the use of the DRA’s 2016 Equalization Ratio, and none of the evidence in the record supported the use of the DRA’s 2017 Equalization Ratio.” See, Berlin’s Brief, p. 30. This argument is not only incorrectly factually, but ignores the controlling legal standard to be applied. Eversource introduced evidence of the DRA’s 2017 median equalization ratio; Berlin then introduced evidence of the DRA’s 2016 median equalization ratio. Berlin’s Appd’x at 4-30 – Motion to Adopt DRA Median Equalization Ratio & Municipalities’ Partial Objection; Berlin’s Appd’x at 205-10 – Tr. Day 1, pp. 20-24; supra at 10-11. The BTLA, in its role as the finder of fact, then concluded the 2017 ratio should be applied. No more was required. For Eversource to have to submit evidence of the proportional level of assessment beyond submitting the DRA’s figures would result in the “absurd extension... for all municipalities to routinely not concur with DRA’s ratio and force all taxpayers to provide an expensive duplicative proportionality study or automatically not prevail in their appeal.” Spiros Flomp v. City of Nashua, BTLA Docket Nos.: 7118-89, et al. This is exactly what Berlin is suggesting in the instant case. To the extent Berlin argues that Eversource was required to submit expert testimony supporting the appropriate equalization ratio to be utilized, again, this position is at odds with established New Hampshire law. See, Berlin’s Brief, pp. 19-20, 31. This Court’s holding in Appeal of City of Nashua recognizes that the BTLA has the ability and the authority to determine the equalization ratio most reasonably representative of the general level of assessment in a community for a given year. 138 N.H. at 266-67; see also, RSA 541-A:33, VI. In this case, the BTLA could properly conclude the 2017 median equalization ratio properly reflected the general level of assessment in Berlin in 2017 as opposed to the 2016 ratio. Since there was no claim of statistical error or any other methodological challenge regarding the determination of the 2017 ratio, no expert testimony was required to support that conclusion. Furthermore, Berlin’s claim that the BTLA was required to accept the expert testimony of the Municipal experts on this issue lacks merit. First, both Mr. Sansoucy and Mr. Fogg (who did not testify on behalf of Berlin at all) simply explained the process of establishing assessment updates of utility and other property to finalize assessments for submission of tax rates to the DRA. See, e.g., Berlin’s Appd’x at 238-39 – Tr. Day 7, pp. 48-49; 252 – Tr. Day 11, p. 97. They offered no evidence whatsoever on the general level of assessment in Berlin for Tax Year 2017. In any event, the trier of fact “is free to accept or reject expert testimony and to determine the weight accorded to it.” Landrigan, 165 N.H. at 241 (citing Cook v. Sullivan, 149 N.H. at 780). “It is ‘not required to believe even uncontroverted testimony.’” Landrigan, 165 N.H. at 241 (quoting Malborn Realty Trust, 164 N.H. at 67); see also, Laramie v. Stone, 160 N.H. 419, 427 (2010) (holding that expert testimony is not required when the subject presented is within the realm of common knowledge of the trier of fact, such as equalization is to the BTLA).

The established jurisprudence of this Court and related statutory law does not require expert testimony to support the equalization ratio to be used in a tax appeal before the BTLA; rather, the BTLA, as a finder of fact and utilized its specialized knowledge, can make that determination based on the submissions of the taxpayer and the municipality. Id.

Berlin next argues that the City’s approach to equalizing reassessment is the “only” approach that allows a “practical, workable” administration of the State’s tax system. See, Berlin’s Brief, pp. 35-38. Berlin takes the position that because the DRA’s 2017 ratio was not known or knowable at the time the Tax Year 2017 assessment was set, the prior year’s ratio should be utilized. This argument is untethered from New Hampshire law and good assessing practice.

As an initial point, in a tax abatement case before the BTLA, it is well established that the municipality must disclose its preferred equalization ratio. If the taxpayer disagrees, they may then offer another ratio as more closely reflecting the general level of assessment. The BTLA, as the finder of fact, “shall determine the equalization ratio most reasonably representative of the general level of assessment.” Appeal of City of Nashua, 138 N.H. at 266-67. Following this standard, in this case, the BTLA appropriately determined that the DRA’s 2017 median equalization ratio was more representative of the 2017 level of assessment than the 2016 ratio. See, Berlin’s Appd’x at 236-237 – Tr. Day 10, pp. 7-8; Berlin’s Appd’x at 113-15 – BTLA Decision. Regardless of what Berlin’s approach may be to equalize RSA 75:8 reassessments, the fact remains that the BTLA properly determined the equalization ratio representative of the general level of assessment in Berlin for Tax Year 2017. That said, Berlin’s suggested approach – utilizing a prior year’s tax ratio for assessment purposes in the following year – is disconnected from New Hampshire law and good assessing practice. The DRA is required to equalize the local assessed values for each municipality on an annual basis. See, RSA 21-J:3, XIII. This process is conducted for each municipality, with assessment data, ratio studies and statistical analysis taken into consideration in order to calculate the proportionality of a municipality’s assessments compared to fair market value. RSA 21-J:9-a. The median ratios developed in this study are routinely used to establish the general level of assessment in a municipality for the purposes of property tax appeal. Portland Pipe Line Corporation v. Town of Gorham, N.H. BTLA Docket Nos.: 24198-08PT, et al., 2013 N.H. Tax LEXIS 83 (July 22, 2013) (providing that the “median [equalization] ratio is typically applied in property tax appeals to determine whether a property is proportionally assessed within a municipality in relation to other properties”).

Berlin’s argument that the prior year’s ratio should be used because the current year’s ratio is not known until after the assessments are set for that year is unavailing. See, Berlin’s Brief, pp. 35, 37. The touchstone for any tax appeal is whether the taxpayer’s assessment reflects the general level of assessment in the municipality for the tax year under appeal. See, e.g., Appeal of City of Nashua, 138 N.H. at 265. The standard is met by applying the results of a credible equalization study done by a governmental agency which properly measures the general level of assessment for each year. Furthermore, Berlin’s arguments ignore the fact that while the DRA calculates ratios for each municipality each year, the ratios “are based on sales the City has reviewed and verified.” Berlin’s Appd’x at 182-84 – Order, dated September 18, 2020. Given that the 2017 ratio is based on sales that occurred from October 1, 2016 to September 30, 2017, as the BTLA observed, “[c]learly the City and its assessors had reason to know the majority of sales included in the ratio calculation by September 1st” – the deadline for submitting the MS-1 forms. Id. The BTLA properly declined to adopt Berlin’s suggested approach based on the facts presented and its specialized knowledge in this field. “[T]he best evidence of the level of assessment for each year is the ratio for each year ultimately determined by the DRA. To conclude otherwise would result in properties in Towns being disproportionately assessed at two different levels of assessment as prohibited by Part 2, Article 5 of the New Hampshire Constitution.” North Country Environmental Services. Inc. v. Town of Bethlehem, BTLA Docket No. 19709-02 PT, et al. A taxpayer has the “right [] to have his property assessed upon the same standard of value [as] that applied in the assessment of other property” in the municipality, not by a different standard. Ainsworth v. City of Claremont, 106 N.H. 85 (1964) (citing Rollins v. City of Dover, 93 N.H. 448, 450 (1945)).

These principles required the BTLA to reject Berlin’s effort to require Eversource “to prove what should be obvious” – that the 2017 ratio more accurately measured the level of assessment in 2017 than the 2016 ratio. See, Berlin’s Appd’x at 115 – BTLA Decision. The BTLA’s conclusion that the 2017 assessment of Smith Hydro must be based on the general level of assessment in Berlin as of April 1, 2017 is based on this principle, and provides no basis to reverse the Decision.

Berlin’s current posture in this appeal is not grounded in New Hampshire law or concerns about legal principles or proper assessing practice. The instant appeal is merely an effort by Berlin to apply an outdated equalization ratio so as to avoid the full impact of its own expert’s value determination of Smith Hydro. Indeed, the City’s position would have the effect of depriving Eversource of the constitutional and legal protections afforded by New Hampshire law to have its assessment reflect the general level of assessment in Berlin as of April 1, 2017. See, N.H.

The DRA’s 2016 median equalization ratio for Berlin was 110.7%; the DRA’s 2017 median equalization ratio was 96.2%. Berlin’s Appd’x at 17-22 – 2017 DRA Median Equalization Ratios; Eversource’s Appd’x at 38-45 – Tr. Day 3, pp. 243-49. Applying the 2017 median equalization ratio to Berlin’s 2017 assessment on Smith Hydro, a refund is due to Eversource based on disproportional taxation. Conversely, applying the prior year’s ratio to the 2017 assessment, no refund would be due to Eversource. Berlin’s counsel freely admitted at the hearings that the spread between the 2016 ratio and 2017 ratio was the impetus for Berlin’s claims – not any concerns about fair assessment practice or the proper application of the law. Eversource’s Appd’x at 38-45 – Tr. Day 3, pp. 243-49. The City cannot credibly claim that the BTLA erred in requiring an abatement based on that appraisal, adjusted by the equalization ratio which the BTLA found best measured the general level of assessment in Berlin for 2017. To decline to abate an over-assessed property, subject to tests of materiality and reasonableness, the assessment must be abated “is a dereliction of that governmental obligation and professional responsibility.” Berlin’s Appd’x at 117 – BTLA Decision. In concluding that the 2017 DRA median equalization ratio was indicative of the general level of assessment in the City for 2017, the BTLA held Berlin to its obligation. In doing so, the BTLA recognized that while Berlin’s “quantitative motivations for wanting to apply a prior tax year median ratio are clear” the BTLA correctly concluded that “[s]uch motivations cannot…prevail or override established law” that requires a taxpayer be afforded an assessment which reflects the general level of assessment in a community as of a particular tax year. Id. at 115.

The BTLA’s factual determination to utilize the DRA’s 2017 ratio was amply supported by the record, consistent with the established jurisprudence of this Court and is both lawful and reasonable and presents no basis to reverse the BTLA’s Decision.

IV. The BTLA Did Not Err In Referencing Its Own Decisions and Public Documents in an Order.

Berlin further argues that the BTLA committed reversible error by “citing multiple documents from outside the record” to deny the City’s Motion for Rehearing. Berlin’s Brief, p. 38. As the appealing party, Berlin has the burden of demonstrating reversible error. Gallo v. Traina, 166 N.H. 737, 740 (2014). Berlin cannot meet this burden. First, Berlin failed to file any pleading with the BTLA seeking reconsideration on this point, instead raising it for the first time on appeal. This precludes any further consideration of this argument by this Court. See, RSA 541:3; RSA 541:6; BankEast, 135 N.H. at 67. Second, even looking to the substance of Berlin’s argument, its suggestion that the BTLA improperly relied upon documents from outside the record when ruling upon the City’s Motion for Rehearing fails to recognize that the BTLA was within its authority to reference its own prior decisions. Far from “adding” evidence into the record, in denying Berlin’s Motion for Rehearing, the BTLA cited its own prior decisions and documents regarding Berlin’s plans for a statistical update. Berlin’s Appd’x at 181-84 – Order dated September 18, 2020. The BTLA’s Order simply pointed to Berlin’s expert’s improper attempt to treat utility companies differently from other taxpayers, which runs counter to the New Hampshire Constitution and established decisional law. Id. While Berlin may disagree with the BTLA’s Order denying its Motion for Rehearing, mere disagreement provides no basis to reverse the BTLA’s Decision. See, e.g., Kalil v. Town of Dummer Zoning Bd. of Adjustment, 159 N.H. 725, 732-33 (2010) (noting that this Court “[does] not, generally, revisit cases merely because of perceived unfairness”).

Indeed, Berlin cites no authority prohibiting a trier of fact from referencing decisional law or publically available documents submitted to it in a written order. 8 Taken to its logical conclusion, following the City’s argument, no court, administrative agency or tribunal could cite their own holdings or prior decisions if those decisions did not appear in the record. This is not and cannot be the law of New Hampshire. Under RSA 541:13, this Court will not set aside an order of the BTLA except for errors of law, unless satisfied, by a clear preponderance of the evidence, that it is unjust or unreasonable. Appeal of Liberty Assembly of God, 163 N.H. at 625. The City cannot establish reversible error where it has not shown and cannot show any authority prohibiting a trier of fact from referencing decisional law or publically available documents in a written order. Moreover, the fact of the matter remains that the sole legal issue raised in this appeal – whether the BTLA erred in applying the 2017 median equalization ratio determined by the DRA to the 2017 fair market value conclusion proffered by Berlin’s expert in their appraisal to arrive at its conclusion of a fair and proportional assessment of Smith Hydro for the 2017 Tax Year – is one which is plainly answered based on the well- established decisional law of this state. Accordingly, there is no basis to reverse the BTLA’s Decision on the notion of reversible error.

Finally, Berlin argues that the BTLA violated the City’s due process rights on the basis that the BTLA’s Decision “appears to have been based in part on the decision of other municipalities in other tax cases to stipulate to the validity of PSNH’s preferred equalization ratio.” Berlin’s Brief, p. 41. This argument presents no basis in either fact or law by which to reverse the BTLA’s Decision.

As Berlin recognizes in its appeal, it is undisputed that the BTLA has to power and discretion to consolidate actions before it. See, N.H. Admin. R. Tax 201.21. To the extent Berlin believed it was prejudiced by having its case heard together with the other consolidated appeals, it could have objected or requested a stand-alone hearing. The City did not do so. Even more importantly, the BTLA made it clear that its application of the DRA’s 2017 median equalization to the 2017 appeal of Berlin’s assessment on Smith Station was an individualized decision. The BTLA made similar factual determinations for each municipality on an individual basis, with the BTLA ruling on the record: …the Board intends to rule for each municipality, including Berlin and Dummer, it’s proper to apply the DRA’s median ratio for the intended tax year 2017 instead of the prior tax year, 2016…

Berlin’s Appd’x at 236-237 – Tr. Day 10, pp. 7-8 (emphasis added).

The BTLA’s ruling clearly establishes that the BTLA’s determination was made on an individual basis for each municipality, including the City. As noted, the vast majority of the municipalities involved in these appeals accepted that the DRA’s median ratios for the particular tax years under appeal should be used to determine the proportionality of their assessments. For Berlin, the BTLA arrived at its determination after both Eversource and Berlin introduced the equalization ratios they believed should be applied to Eversource’s Tax Year 2017 appeal. Berlin’s Appd’x at 4-22 – Motion to Adopt DRA Median Equalization Ratio; Berlin’s Appd’x at 205-10 – Tr. Day 1, pp. 20-24. Consistent with Appeal of City of Nashua, given the disparity between the parties’ preferred ratios, the BTLA determined the equalization ratio most reasonably representative of the general level of assessment. 138 N.H. at 266-67.

Berlin’s challenge to the BTLA’s use of the 2017 median ratio to the determine the general level of assessment in Berlin for Tax Year 2017 can be answered simply, in the BTLA’s own words: “the best evidence of the level of assessment for each year is the ratio for each year ultimately determined by the DRA.” North Country Environmental Services. Inc. v. Town of Bethlehem, BTLA Docket No. 19709-02 PT, et al. The decisions of the other municipalities involved in the instant case were consistent with this fundamental principle.

The determination of the equalization ratio to be utilized was an individualized decision, made by the BTLA in its role as finder of fact. Berlin’s argument that the BTLA found decisions of other municipalities in other tax cases to be binding upon the City wholly lacks merit, and provides no basis by which to reverse the BTLA’s Decision.

For the foregoing reasons, this Court should affirm the BTLA’s Decision.

Derek D. Lick, Esquire, will conduct oral argument on behalf of Eversource and respectfully requests fifteen (15) minutes for that argument.

I hereby certify in accordance with Supreme Court Rule 26(7) that the forgoing Brief and related Appendix were transmitted electronically through the Supreme Court’s electronic filing system on this day. In addition, copies of the forgoing Brief and related Appendix were transmitted by First Class Mail, postage prepaid to: the Board of Tax and Land Appeals, Attn: Anne M. Stelmach, Clerk, 107 Pleasant Street Concord, NH 03301.

I hereby certify, in accordance with Supreme Court Rule 16(11), that the forgoing Brief contains approximately 8, 254 words, excluding cover page, table of contents, table of authorities, signature page and certifications. Counsel relied upon the word count feature of a word processing program to determine the word count.