Appeal of Coos County Commissioners o/b/o the Unincorporated Places of Dixville, NH and Millsfield, NH ( 2014 )

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THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
Board of Tax and Land Appeals
No. 2013-504
APPEAL OF COOS COUNTY COMMISSIONERS ON BEHALF OF
THE UNINCORPORATED PLACES OF DIXVILLE, NEW HAMPSHIRE
AND MILLSFIELD, NEW HAMPSHIRE
(New Hampshire Board of Tax and Land Appeals)
Argued: February 20, 2014
Opinion Issued: June 18, 2014
Waystack Frizzell, Trial Lawyers, of Colebrook (Jonathan S. Frizzell and
Sandra L. Cabrera on the brief, and Mr. Frizzell orally), for the petitioner.
Joseph A. Foster, attorney general (Laura E. B. Lombardi, assistant
attorney general, on the brief and orally), for the respondent.
Donahue, Tucker & Ciandella, PLLC, of Meredith (Christopher L. Boldt
and Eric A. Maher on the brief) for City of Berlin as amicus curiae.
LYNN, J. The petitioner, the Coos County Commissioners (collectively
CCC), on behalf of the unincorporated places of Dixville and Millsfield, New
Hampshire, appeal the decision of the New Hampshire Board of Tax and Land
Appeals (BTLA), which denied the CCC’s motion to reconsider and revise
downward the respondent’s, the New Hampshire Department of Revenue
Administration (DRA), 2012 equalized valuations of Dixville and Millsfield
because the CCC did not show that the valuations were unreasonable and
disproportionate. We affirm in part, reverse in part, and remand for a
rehearing consistent with this opinion.
I
The following facts are undisputed or are supported by the record. The
unincorporated places of Millsfield and Dixville are located in Coos County.
Millsfield has a population of twenty-five residents and Dixville has one
resident. In 2007, the CCC was considering whether to allow Granite Reliable
Power, LLC (Granite Reliable), a developer, to construct a renewable energy
windpark (Windpark) in Millsfield, Dixville, and the town of Dummer. A
relevant consideration concerning the project was whether the CCC would
enter into a payment in lieu of taxes (PILOT) agreement with Granite Reliable,
under which it would make specified payments in lieu of local property taxes.
In a December 2007 non-public meeting, then-Coos County
Administrator Suzanne Collins and the three county commissioners met with
members of the DRA’s Property Appraisal Division. The stated purpose of the
meeting was to “conduct an educational session . . . on utility assessment” so
that the CCC could evaluate Granite Reliable’s proposed PILOT agreement.
Scott Dickman, a DRA real estate appraiser, discussed recent statutory
amendments relevant to utility taxes and the general methods used to appraise
utilities.
During the meeting, Collins stated that she had prepared a worksheet to
show the county tax impact of the Windpark on each town and city. Based on
her calculations, she estimated the Windpark’s value at $150 million and
asked the DRA representatives whether that was a reasonable figure. In
response, Dickman estimated a Windpark value closer to $113 million. Collins
stated that she would recalculate the Board’s worksheet based on that lower
figure. Guy Petell, another DRA employee, cautioned the CCC that the
equalized value of each unincorporated place where the Windpark is located
would increase substantially, which would have the effect of raising the county
tax in those places.
On March 12, 2008, the CCC and Granite Reliable entered into a ten-
year PILOT agreement pursuant to RSA 72:74 (2012), in which $113 million
was used as the value of the Windpark. The CCC did not consult with another
appraiser prior to entering into the PILOT agreement. By 2012, the Windpark
was engaged in generating electric power.
In their annual 2012 report of local property value to the DRA, both
Millsfield and Dixville reported the value of the Windpark as zero dollars
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because neither unincorporated place had appraised the property at that time.
Also in 2012, the DRA appraised the value of the Windpark for purposes of the
utility property tax at a value that was significantly higher than the $113
million figure. By two letters sent in March and April 2013, the CCC requested
that the DRA not use its higher utility tax appraisal to calculate the total
equalized values for Millsfield and Dixville. However, because neither
unincorporated place had appraised the Windpark, the DRA used its utility tax
appraisal in calculating the total equalized values of both unincorporated
places in 2012. As a result, the DRA’s total equalized value for each place —
including utility valuation — increased significantly from 2011: Millsfield’s
value increased from $6,426,362 to $180,342,176; Dixville’s increased from
$16,697,647 to $54,453,216.
On May 23, 2013, the CCC filed two equalization appeals with the BTLA
on behalf of Millsfield and Dixville, asking it to revise downward the DRA’s
2012 total equalized valuation in each unincorporated place. On June 21,
2013, the CCC filed a motion asking the BTLA to compel the DRA to release its
utility appraisal for the Windpark. On that same date, the CCC also filed a
motion to continue the hearing, seeking more time to obtain and review the
appraisal, as well as to review “new information” provided by the DRA on June
19, 2013. The DRA objected to both motions, arguing that the Windpark
appraisal was confidential pursuant to RSA 21-J:14 (2012), and that the
motion to continue was neither timely nor did it allege extraordinary
circumstances that would justify continuing the hearing beyond the BTLA’s
sixty-day statutory timeline. The BTLA denied both motions, explaining its
reasoning in a written decision following the hearing.
The BTLA consolidated the appeals and held a hearing on June 28,
2013. During the hearing, the CCC attempted to call an expert witness to
testify about a “sensitivity analysis” he had conducted concerning the
Windpark, and to compare the values between the $113 million figure used in
the PILOT agreement and the approximately $235 million figure for the total
equalized values of the unincorporated places. The DRA objected to the expert
witness, arguing that the CCC had not timely complied with the BTLA’s
disclosure rules. The BTLA agreed. On July 17, 2013, the BTLA denied the
CCC’s equalization appeals, ruling that the CCC had not met its burden of
proving that the equalized valuations were unreasonable and disproportionate.
This appeal followed.
II
On appeal, the CCC argues that: (1) the DRA’s assessed value of the
Windpark is greater than its fair market value and, therefore, the DRA’s
equalized valuations for Millsfield and Dixville are disproportionate and
unreasonable; (2) the BTLA erred by denying its motions to compel production
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of the Windpark appraisal and to continue the hearing, and by not allowing the
CCC’s expert witness to testify during the hearing; and (3) the DRA should be
estopped from denying the accuracy of the $113 million PILOT valuation. We
address each argument in turn.
“Our standard for review of BTLA decisions is statutory.” Appeal of City
of Nashua, 164 N.H. 749, 750 (2013) (quotation omitted). “We will not set
aside or vacate the order or decision appealed from except for errors of law,
unless we are satisfied, by a clear preponderance of the evidence before us,
that such order is unjust or unreasonable.” Id. (quotation, brackets, and
ellipsis omitted); see RSA 541:13 (2007). “The interpretation of a statute is to
be decided ultimately by this court. Therefore, if we find that the BTLA
misapprehended or misapplied the law, its order will be set aside.” Appeal of
City of Nashua, 164 N.H. at 750-51 (quotation omitted). “We review the BTLA’s
statutory interpretation de novo.” Id. at 751 (quotation omitted).
“In matters of statutory interpretation, we are the final arbiter of the
intent of the legislature as expressed in the words of the statute considered as
a whole.” State Employees’ Assoc. of N.H. v. State of N.H., 161 N.H. 730, 738
(2011). “We first look to the language of the statute itself, and, if possible,
construe that language according to its plain and ordinary meaning.” Id. “We
interpret legislative intent from the statute as written and will not consider
what the legislature might have said or add language that the legislature did
not see fit to include.” Id. “We construe all parts of a statute together to
effectuate its overall purpose and avoid an absurd or unjust result.” Id.
“Moreover, we do not consider words and phrases in isolation, but rather
within the context of the statute as a whole.” Id. “This enables us to better
discern the legislature’s intent and to interpret statutory language in light of
the policy or purpose sought to be advanced by the statutory scheme.” Id. at
738-39.
A
The CCC first argues that the DRA’s 2012 equalized valuations for
Millsfield and Dixville are disproportionate and unreasonable because the
DRA’s assessed value of the Windpark, based upon its utility tax appraisal, is
greater than the $113 million PILOT agreement figure that the CCC contends is
the fair market value of the property. See RSA 21-J:3, XIII (Supp. 2013). We
disagree. RSA 21-J:3, XIII states that the commissioner of the DRA shall:
Equalize annually by May 1 the valuation of the property as
assessed in the several towns, cities, and unincorporated places in
the state including the value of property exempt pursuant to RSA
72:37, 72:37-b, 72:39-a, 72:62, 72:66, and 72:70, property which
is subject to tax relief under RSA 79-E:4, and property which is the
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subject of a payment in lieu of taxes under RSA 72:74 by adding to
or deducting from the aggregate valuation of the property in towns,
cities, and unincorporated places such sums as will bring such
valuations to the true and market value of the property, and by
making such adjustments in the value of other property from
which the towns, cities, and unincorporated places receive taxes or
payments in lieu of taxes as may be equitable and just.
(Emphasis added.). The CCC argues that RSA 21-J:3, XIII creates two distinct
obligations on the part of the DRA in this case: (1) to determine the true
market value of the Windpark; and (2) to make such adjustments to the
Windpark’s value as may be equitable and just. The CCC contends that the
DRA did not fulfill either obligation, as it neither appraised the Windpark at its
true market value nor made a just and equitable adjustment to the Windpark’s
value.
The CCC contends that the DRA incorrectly determined the true market
value of the Windpark by using its RSA 83-F:3 (2012) utility tax appraisal of
the property — as opposed to the $113 million PILOT figure — because RSA
21-J:3, XIII does not require the DRA to use its utility tax appraisal when
calculating the equalized value of unincorporated places. This argument fails
because nothing in the plain language of RSA 21-J:3, XIII prohibits the DRA
from using its utility tax appraisal when determining equalized value. Thus,
the BTLA’s determination that it was proper for the DRA to use the utility tax
appraisal in performing its statutory duties under RSA 21-J:3, XIII was
reasonable, particularly given that neither unincorporated place had fulfilled its
own statutory duty to appraise the Windpark for property tax purposes, see
RSA 74:1 (2012), :11 (2012), and that the DRA was statutorily obligated to
conduct a utility tax appraisal, see RSA 83-F:3.
The CCC next contends that the DRA should have considered other
evidence when determining the equalized values of Millsfield and Dixville,
rather than relying solely upon its own utility tax appraisal. The CCC points to
RSA 21-J:9-a, IV (2012), which states that the commissioner of the DRA “may
consider such other evidence as may be available to the commissioner on or
before the time the final equalized value is determined.” “The intention of the
Legislature as to the mandatory or directory nature of a particular statutory
provision is determined primarily from the language thereof.” City of Rochester
v. Corpening, 153 N.H. 571, 574 (2006) (quotation omitted). “The general rule
of statutory construction is that the word ‘may’ makes enforcement of a statute
permissive and that the word ‘shall’ requires mandatory enforcement.” Id.
(quotations omitted). The term “may” indicates that the DRA was not required
to consider other evidence in calculating the equalized values for Millsfield and
Dixville, as the CCC claims. Rather, the use of this permissive term shows that
it was the legislature’s intent to allow the DRA discretion as to whether to
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consider the PILOT agreement, Collins’s calculations, and the advice of
Dickman at the December 2007 meeting.
We next address the CCC’s related argument regarding adjustments to
the Windpark’s value. The second clause of RSA 21-J:3, XIII states that the
DRA shall make adjustments in the value of “other property from which the
unincorporated places receive . . . payments in lieu of taxes as may be
equitable and just.” Based upon this clause, the CCC contends that the DRA
was statutorily required to make a just and equitable adjustment to the
Windpark’s value when calculating the equalized values for Millsfield and
Dixville because not doing so would result in each unincorporated place
collecting and paying more than its fair share of the county taxes.
The adjustment clause follows, and is separate from, the first clause of
the statute. The language in the first clause requires the DRA to equalize
values by determining the true market value of three specific types of property.
Notably, property subject to PILOT agreements between municipalities and
renewable generation facilities made pursuant to RSA 72:74 — like that
between Granite Reliable and the unincorporated places — is specifically
included in the first clause. See RSA 21-J:XIII (stating that the DRA shall
equalize annually “property which is the subject of a payment in lieu of taxes
under RSA 72:74”). The DRA highlights this point, arguing that the CCC’s
argument confuses different types of PILOT agreements contemplated by RSA
21-J:3, XIII: those for renewable generation facilities referenced in the first
clause, see RSA 72:74, and those in the second clause that apply to various
tax-exempt properties, see, e.g., RSA 72:23-f (2012) (community healthcare
facility); RSA 72:23-g (2012) (community housing for physically disabled and
elderly persons); RSA 72:23-i (2012) (convalescent care and elderly housing);
RSA 72:23-j (2012) (elderly housing).
Read in context, the phrase “other property” in the second clause does
not refer to RSA 72:74 PILOT agreements, but rather property not previously
covered by the first clause of the statute. Under the plain language of RSA 21-
J:3, XIII, renewable generation facilities that are subject to PILOT agreements
must be valued at their “true and market value”; just and equitable
adjustments to value are to be applied only to other types of property subject to
PILOT agreements. Accordingly, the DRA was not statutorily obligated to
adjust the value of the Windpark. Because the statute is clear on its face, we
decline to address the CCC’s further arguments regarding adjustments based
upon legislative intent or public policy.
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B
The CCC next argues that it did not receive a fair hearing because the
BTLA denied its motions to compel and to continue, and ruled that its expert
witness could not testify.
We agree with the CCC that the BTLA erred in denying their motion to
compel production of the DRA’s utility tax appraisal of the Windpark. In
denying the CCC’s motion, the BTLA reasoned that the utility tax appraisal was
confidential under RSA 21-J:14, I, and that the exception to confidentiality in
RSA 21-J:14, V(c) did not apply. RSA 21-J:14, I, states, in part:
“Notwithstanding any other provision of law, and except as otherwise provided
in this chapter, the records and files of the department are confidential and
privileged.” Section 14 also contains several exceptions to the confidentiality
requirement. See RSA 21-J:14, V. As applicable here, RSA 21-J:14, V(c)
allows for the disclosure of “department records, files, returns, or information
in a New Hampshire state administrative proceeding or any judicial proceeding
pertaining to state tax administration where the information is directly related
to a tax issue in the proceeding.” The CCC argues that this exception applies
because the utility tax appraisal is a department record in a New Hampshire
state administrative proceeding that pertains to state tax administration, and
which is directly related to a tax issue in the proceeding.
The DRA, on the other hand, contends that the exception does not apply
for two reasons. It first argues that the utility tax appraisal does not “pertain
to state tax administration” because the CCC appealed the total equalized
values of Millsfield and Dixville, not a tax assessment. The term
“administration” is not defined in RSA 21-J:14. “In New Hampshire, in the
absence of specific statutory definition, statutory words are to be construed
according to their common and approved meaning.” State v. Collins, 129 N.H.
488, 490 (1987). “Administration” means “performance of executive duties”
and “the total activity of a state in the exercise of its political powers including
the action of the legislative, judicial, and executive departments.” Webster’s
Third New International Dictionary 28 (unabridged ed. 2002).
The DRA’s statutory obligation to equalize the values of each
unincorporated place is a matter of “tax administration” within the meaning of
RSA 21-J:14, V(c) because it falls squarely within the common and approved
definition of “administration.” Furthermore, the appeal before the BTLA in
which the CCC challenged the DRA’s equalized valuation constituted “an
administrative proceeding . . . pertaining to state tax administration” within the
meaning of sub-paragraph V(c). Thus, we reject the DRA’s narrow
interpretation of the term “tax administration.” See Hobbs v. United States ex
rel. Russell, 209 F.3d 408, 410-11 (5th Cir. 2000) (observing that most federal
courts have defined the term “tax administration” broadly for purposes of
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statute creating an exception to rule of confidentiality for tax information under
federal law); Tavery v. United States, 32 F.3d 1423, 1430 & n.7 (10th Cir. 1994)
(same).
We similarly reject the DRA’s second argument — that the exception does
not apply because the disclosure of the utility tax appraisal is not “directly
related to a tax issue in the proceeding.” Because the DRA relied solely upon
the utility appraisal in calculating the true market value of the Windpark, the
valuation of which substantially affects the equalized values of both
unincorporated places, the claim that the appraisal is not “directly related” to
the total equalized valuations must fail.
For the above reasons, the BTLA erred in denying the CCC’s motion to
compel disclosure of the Windpark’s utility tax appraisal. While we agree that
the CCC had the burden to prove at the hearing that the equalized valuations
were disproportionate and unjust, we find that the BTLA’s refusal to compel
disclosure of the Windpark appraisal prevented the CCC from having a fair
opportunity to meet this burden. Accordingly, we conclude that the CCC did
not receive a fair hearing before the BTLA, as it did not have an opportunity to
present evidence to challenge or otherwise discredit the valuation arrived at on
the utility tax appraisal. We note, however, that we hold only that the CCC is
entitled to access to the DRA appraisal and to the opportunity to challenge it —
to the extent it is able to do so — at a further hearing before the BTLA.
Because the issue is not squarely before us, we express no opinion as to
whether the CCC is entitled to subpoena Dickman or other DRA personnel to
testify in connection with this matter.
Given our ruling that the CCC was denied a fair hearing, we need not
address the CCC’s additional arguments on this issue.
C
Finally, the CCC argues that the DRA was estopped from denying that
the true market value of the Windpark was $113 million because of the DRA’s
“representations at the December 2007 meeting” with the CCC. We assume
without deciding that the CCC preserved this issue for appeal, but disagree
with its argument.
“The party asserting estoppel bears the burden of proof.” City of Concord
v. Tompkins, 124 N.H. 463, 467 (1984).
There are four essential elements of estoppel: first, a
representation or concealment of material facts made with
knowledge of those facts; second, the party to whom the
representation was made must have been ignorant of the truth of
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the matter; third, the representation must have been made with
the intention of inducing the other party to rely upon it; and
fourth, the other party must have been induced to rely upon the
representation to his or her injury.
Id. at 467-68. In addition, “[t]he reliance by the party bringing the estoppel
claim on the representation or concealment must have been reasonable.” Id. at
468. “Each element of estoppel requires a factual determination,” and we will
uphold the BTLA’s resolution of these issues if supported by the evidence. Id.
The BTLA found that “[n]othing in the minutes of the December, 2007
meeting or anything that occurred thereafter indicates an express or implied
promise by the DRA that the Windpark would be valued at any fixed and
unchanging amount (such as $113 million) for any purpose or length of time.”
The BTLA’s decision is supported by the evidence — most notably, that the
DRA appraiser mentioned the $113 million figure briefly and informally at an
educational meeting years before the Windpark was actually constructed.
Thus, we conclude that the BTLA did not err in finding that this statement
could not reasonably have been relied upon by the CCC as a commitment by
the DRA that $113 million would be the true market value of the Windpark.
Accordingly, the BTLA did not err in rejecting this argument.
Affirmed in part; reversed in
part; and remanded.
DALIANIS, C.J., and CONBOY, and BASSETT, JJ., concurred.
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