Appeal of Public Service Company of New Hampshire d/b/a Eversource Energy ( 2017 )

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THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
Board of Tax and Land Appeals
No. 2015-0626
APPEAL OF PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE D/B/A
EVERSOURCE ENERGY
(New Hampshire Board of Tax and Land Appeals)
Argued: January 12, 2017
Opinion Issued: June 2, 2017
Sulloway & Hollis, P.L.L.C., of Concord (Margaret H. Nelson and Derek D.
Lick on the brief, and Ms. Nelson orally), for the petitioner, Public Service
Company of New Hampshire d/b/a Eversource Energy.
Donahue, Tucker & Ciandella, PLLC, of Meredith (Christopher L. Boldt
and Eric A. Maher on the joint brief, and Mr. Boldt orally), for respondents
Town of Bennington, Town of Chester, Town of Dalton, Town of Hampstead,
Town of Haverhill, Town of Hinsdale, Town of Hopkinton, Town of Lancaster,
Town of Lincoln, Town of Madison, Town of Marlborough, Town of Newport,
Town of Pelham, Town of Plymouth, Town of Raymond, Town of Springfield,
Town of Stratford, Town of Unity, Town of Washington, and Town of Whitefield.
Upton & Hatfield, of Concord (Barton L. Mayer on the joint brief), for
respondents Town of Antrim, Town of East Kingston, Town of Francestown,
Town of Gorham, Town of Greenville, Town of Henniker, Town of New Ipswich,
Town of Northfield, Town of South Hampton, Town of Stark, Town of
Stewartstown, Town of Stoddard, Town of Warner, and Town of Wilmot.
Mitchell Municipal Group, P.A., of Laconia (Judith E. Whitelaw and
Walter L. Mitchell on the joint brief), for respondents Town of Andover, Town of
Bridgewater, Town of Croydon, Town of Danville, Town of Dunbarton, Town of
Durham, Town of Fremont, Town of Littleton, Town of New Hampton, Town of
Pembroke, Town of Randolph, Town of Sandwich, Town of Sullivan, and Town
of Sunapee.
Gardner, Fulton, & Waugh, PLLC, of Lebanon (Shawn M. Tanguay on the
joint brief), for respondents Town of Bath, Town of Bradford, Town of Bristol,
Town of Landaff, and Town of Milan.
Town of Hollis, self-represented respondent, filed no brief.
Bradley & Faulkner, P.C., of Keene (Gary J. Kinyon), for respondent
Town of Nelson, filed no brief.
Joseph A. Foster, attorney general (Laura E. B. Lombardi, senior
assistant attorney general, on the brief), for the New Hampshire Department of
Revenue Administration, as amicus curiae.
Pierce Atwood, LLP, of Portland, Maine (Jonathan A. Block on the brief),
for Unitil Energy Systems, Inc., Northern Utilities, Inc., and Granite State Gas
Transmission, Inc., as amici curiae.
Judy A. Silva, Cordell A. Johnston, Stephen C. Buckley, and Margaret
M.L. Byrnes, of Concord, for New Hampshire Municipal Association, by brief,
as amicus curiae.
2
LYNN, J. The petitioner, Public Service Company of New Hampshire
d/b/a Eversource Energy (PSNH), appeals an order of the New Hampshire
Board of Tax and Land Appeals (BTLA) denying 77 of PSNH’s 86 individual tax
abatement appeals on its property located in 31 of the respondent
municipalities for tax year 2011 and 55 of the respondent municipalities for tax
year 2012. We affirm.
I
The relevant facts follow. PSNH is a for-profit corporation that provides
electricity generation, transmission, and distribution services in approximately
210 communities and to 490,000 homes and businesses. PSNH owns nine
hydroelectric facilities and three fossil fuel generating plants. The New
Hampshire Public Utilities Commission (PUC) has granted PSNH exclusive
franchises to provide certain electricity services within its territory. The PUC
regulates PSNH’s electricity rates. The parties’ experts agree that PSNH is
professionally managed and that its property is fully operational, in good
condition, and is well maintained.
A municipality’s selectmen are required to appraise the value of the
property located within the municipality, including utility property. See RSA
75:1 (Supp. 2016); RSA 72:8 (2012); see also RSA 72:9 (2012) (stating that
utility property that is situated in more than one town “shall be taxed in each
town according to the value of that part lying within its limits”). Separately, the
New Hampshire Department of Revenue Administration (DRA) appraises
PSNH’s property at the state level for purposes of the RSA chapter 83-F utility
tax. See RSA ch. 83-F (2012 & Supp. 2016).
PSNH filed tax abatement appeals to the BTLA for 86 municipal
assessments of PSNH’s property that occurred between 2011 and 2012. The
BTLA held a consolidated hearing over eight days in February 2015 regarding
PSNH’s tax abatement appeals. During the hearing, PSNH presented expert
witness testimony and an appraisal of PSNH’s property from Thomas K.
Tegarden, owner of Tegarden & Associates, Inc. PSNH also presented
testimony from Scott E. Dickman, a New Hampshire certified general appraiser
employed by the DRA in its Property Appraisal Division as a utility appraiser.
Additionally, PSNH submitted the DRA appraisals that Dickman had prepared
for the purpose of the RSA chapter 83-F state utility property tax.
Both Tegarden and Dickman used the “unit method” to appraise PSNH’s
property. Under the unit method, an appraiser first values all of a utility’s
property as a whole and then allocates that whole unit value to the individual
municipalities where the utility’s property is located. To derive their unit
values, Tegarden and Dickman primarily used two approaches: a cost
approach, which estimated the net book value (NBV) of PSNH’s property by
calculating the original cost less book depreciation (OCLBD) of PSNH’s
3
property; and an income approach, which estimated the value of PSNH’s
property by capitalizing the company’s net operating income. Additionally, at
PSNH’s request, the BTLA took judicial notice of the DRA’s equalization
process.
The municipalities presented expert testimony and appraisals from
several certified New Hampshire assessors: Gary J. Roberge, CEO of Avitar
Associates of New England, Inc.; Frederick H. Smith, of Brett S. Purvis &
Associates; Wil Corcoran and Monica Hurley, of Corcoran Consulting
Associates, Inc.; and George E. Sansoucy, of George E. Sansoucy, PE, LLC.
Roberge estimated the value of PSNH’s property in the municipalities for which
he was engaged using a cost approach that calculated the reproduction cost
new less depreciation (RCNLD) of the property. To estimate the value of PSNH’s
property in the municipalities for which he was engaged, Sansoucy reconciled
the results of four approaches: a sales comparison approach; an RCNLD cost
approach; an income approach that assumed a sale to a privately-owned,
regulated utility; and a second income approach that assumed a sale to a
publicly-owned utility. Sansoucy also prepared an appraisal report for the
municipality that had originally been assessed by Corcoran. Smith appraised
only the value of PSNH’s land while relying upon the DRA’s assessment of
PSNH’s other property for each municipality for which he was engaged. After
the municipalities presented their experts, PSNH presented rebuttal testimony
from Tegarden and from Dr. Hal Heaton, a professor of finance at Brigham
Young University. Heaton did not provide an opinion of PSNH’s market value.
In July 2015, the BTLA issued a thirty-eight page order granting nine of
PSNH’s abatement appeals and denying the remainder. For the appeals that it
granted, the BTLA found that the municipal assessors acknowledged a material
degree of overassessment of the property at issue. Regarding PSNH’s other
appeals, the BTLA found that the Tegarden appraisals and DRA appraisals did
not result in a credible opinion of market value and ruled that PSNH had not
met its burden of proving that the local assessments were disproportional.
Additionally, the BTLA reviewed the criticisms leveled at the assessment
methodologies used by the municipal assessors, as well as the municipalities’
responses to those criticisms, but it ruled that it need not address those points
because challenges based on assessment methodology do not, and cannot,
carry PSNH’s burden of proving disproportionality.
PSNH moved for rehearing, which the BTLA denied by written order in
September 2015. This appeal followed.
II
Our standard for reviewing BTLA decisions is set forth by statute. See
RSA 541:13 (2007); RSA 71-B:12 (2012) (providing that BTLA decisions may be
appealed in accordance with RSA chapter 541 (2007)). The BTLA’s findings of
4
fact are deemed prima facie lawful and reasonable. See RSA 541:13; Appeal of
Town of Charlestown, 166 N.H. 498, 499 (2014). “To prevail, the [appellant]
must show by a preponderance of the evidence that the BTLA’s decision was
clearly unreasonable or unlawful.” Town of Charlestown, 166 N.H. at 499; see
also RSA 541:13. “We will not set aside or vacate a BTLA decision 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.” Town of Charlestown,
166 N.H. at 499-500 (quotation and brackets omitted); see also RSA 541:13.
III
On appeal, PSNH argues that the BTLA’s order was unjust and
unreasonable because the BTLA erred by: (1) rejecting the Tegarden appraisals
and DRA appraisals; (2) ruling that PSNH had presented only methodological
challenges to the municipal assessments; (3) rejecting PSNH’s estoppel
argument; and (4) violating constitutional and statutory requirements that
taxation be uniform and proportional.
A
PSNH first argues that the BTLA’s decision to reject the Tegarden and
DRA appraisals and allocations is inconsistent with New Hampshire law,
unjust, and unreasonable. Specifically, it argues that the BTLA erred by: (1)
failing to properly account for the impact of regulation on the market value of
PSNH’s property; (2) rejecting the DRA’s and Dickman’s unit appraisals that
used previously approved methods and procedures; and (3) finding that the
Tegarden and DRA appraisals did not result in a credible opinion of market
value. We address each argument in turn.
“New Hampshire tax abatement statutes provide the exclusive remedy to
a taxpayer dissatisfied with an assessment.” Porter v. Town of Sanbornton,
150 N.H. 363, 367 (2003). To succeed on a tax abatement claim, a taxpayer
has the burden of proving by a preponderance of the evidence that it is paying
more than its proportional share of taxes. Id. “To carry the burden of proving
disproportionality, the taxpayer must establish that the taxpayer’s property is
assessed at a higher percentage of fair market value than the percentage at
which property is generally assessed in the town.” Id. at 368.
“Determination of fair market value is an issue of fact.” Appeal of
Pennichuck Water Works, 160 N.H. 18, 37 (2010) (quotation and ellipsis
omitted). However, “[w]e have previously recognized the extraordinary
difficulties in placing a fair market value on the property of a regulated utility.”
Id. (quotation omitted). “Because of this difficulty, we give the trier of fact
considerable deference in this area.” Id. (quotation omitted). “The trier of fact
may use any one or a combination of five appraisal techniques in valuing
public utility property: original cost less depreciation (rate base or net book),
5
comparable sales, cost of alternative facilities, capitalized earnings, and
reproduction cost less depreciation.” Id. at 38. “Typically all relevant factors
must be considered, but a trier of fact need not allocate specific weight to any
one of the approaches listed.” Id. (quotation omitted). “All of the enumerated
approaches are valid, but all also have weaknesses.” Id. “We have never
attempted to tie the fact finder’s hands with a rigid fair market value formula in
the absence of legislative directive.” Id. (quotation, brackets, and ellipsis
omitted). “Rather, judgment is the touchstone.” Id. (quotation omitted).
In reviewing the board’s findings, “our task is not to determine whether
we would have found differently than did the board, or to reweigh the evidence,
but rather to determine whether the findings are supported by competent
evidence in the record.” Appeal of Sutton, 141 N.H. 348, 350 (1996) (quotation
and brackets omitted). “When faced with conflicting [expert] testimony, a trier
of fact is free to accept or reject an expert’s testimony, in whole or in part.”
LLK Trust v. Town of Wolfeboro, 159 N.H. 734, 740 (2010); see also Appeal of
Pennichuck Water Works, 160 N.H. at 41. We will uphold the trier of fact’s
factual findings unless the evidence does not support them or they are
erroneous as a matter of law. See Town of Atkinson v. Malborn Realty Trust,
164 N.H. 62, 66 (2012).
i
PSNH argues that the BTLA’s decision failed to properly account for the
impact of regulation upon the market value of PSNH’s property. PSNH
specifically argues that the PUC would limit any utility purchaser to a return
based upon NBV, and, therefore, the BTLA was obligated by Appeal of Public
Service Co. of New Hampshire, 124 N.H. 479 (1984), to find that PSNH’s value
was equal to its NBV. In Appeal of Public Service Co. of New Hampshire, we
stated that “a utility which, after presenting evidence on all of the relevant
methods of valuation, can establish the presence of regulation so restrictive as
to limit any prospective purchaser of its property to a return based on the
[NBV] of the property, should be deemed to have proven that the property’s
market value is equal to its [NBV], in the absence of any specific evidence of
higher market value.” Appeal of Public Serv. Co. of N.H., 124 N.H. at 486.
The BTLA found that PSNH had made only “very general assertions
regarding regulation and its alleged impact on the market value of [PSNH’s]
property.” It therefore concluded that PSNH had failed to provide sufficient
probative evidence that the utility regulatory environment in which PSNH
operates, considering both the benefits and burdens of such regulation, was so
restrictive that any prospective purchaser would be limited to a return based
upon NBV. Based upon our review of the record, we agree with the BTLA.
PSNH’s argument primarily relies upon the impact that regulation has
upon its ability to set rates and the impact that regulation would have upon
6
the sale of a utility. PSNH contends that in such a sale, PUC approval is
required, and the PUC disfavors passing on acquisition costs to customers.
However, simply because the PUC disfavors passing on acquisition costs to
customers does not mean that the practice is forbidden. The PUC can approve
a sale and pass acquisition costs to customers provided that it finds such sale
to be for the public good. See RSA 374:30 (Supp. 2016); see also Public Service
Co. v. New Hampton, 101 N.H. 142, 151 (1957).
The BTLA correctly noted that PSNH’s burden in a tax abatement appeal
is to demonstrate that the municipal assessments are disproportionate. See
Porter, 150 N.H. at 367. Thus, merely identifying the presence of regulation
that may impact the market value of property is insufficient. PSNH needed to
prove, with sufficient probative evidence, that the specific utility regulatory
environment in which it operates impacts the market value of its property to
such a degree as to make the challenged municipal assessments
disproportional.
To the extent that PSNH relied upon the testimony of Tegarden and
Dickman to meet its burden, the BTLA was not required to accept their
testimony. It specifically found that Tegarden, in particular, “demonstrated
little, if any, knowledge of the New Hampshire regulatory environment.” The
BTLA also heard extensive testimony from Sansoucy and Roberge regarding the
benefits that flow from regulation.
Moreover, the entire record of sales before the BTLA does not support
PSNH’s argument. For example, one sale that PSNH points to is its 2003
acquisition of Connecticut Valley Electric Company (CVEC). PSNH argues that
the sale price for CVEC was equal to CVEC’s NBV, demonstrating that no
probable purchaser would pay a premium over NBV. See In re Connecticut
Valley Electric Co., N.H. PUC No. 24,176 (May 23, 2003). However, the
testimony of one of the municipalities’ experts, Sansoucy, indicated that the
structure of the sale demonstrated a market value of more than three times
CVEC’s NBV.
This disagreement arises from the structure of the sale, which included a
$9 million payment to CVEC, equal to the NBV of its assets, and a $21 million
payment to CVEC’s parent company to terminate a power supply contract
between the two utilities. PSNH argues that this sale demonstrates that it
acquired CVEC at its NBV. The municipalities argue that this sale
demonstrates that PSNH paid $30 million to acquire CVEC. We agree with the
municipalities.
PSNH paid a total price of $30 million to purchase CVEC’s assets free of
any power supply contracts. This is strong evidence that PSNH valued CVEC’s
assets at $30 million, even if CVEC did not directly receive all $30 million. The
same logic applies in situations in which a buyer either pays to satisfy seller
7
debt or acquires the seller’s debt as part of the purchase. For example, if a
person paid $100,000 for a house, with $20,000 being paid directly to the
seller and $80,000 being paid to a bank to extinguish the seller’s outstanding
mortgage, that sale is evidence that the market value of the house is $100,000
and not simply equal to the $20,000 that was actually received by the seller.
In the case of the CVEC acquisition, it is also worth noting that the PUC
ultimately permitted PSNH to amortize the $21 million payment that it made to
CVEC’s parent company, meaning PSNH is able to eventually recover that
acquisition premium through charges to its ratepayers.
Sansoucy also analyzed eight other utility sales in his sales comparison
approach. The purchase price of the sold utilities was between .99 and 3.90
times the NBV of their assets. Sansoucy concluded based upon these sales
that a probable purchaser of PSNH’s property would pay more than NBV for
PSNH’s assets, notwithstanding the regulation under which a privately-owned
utility would have to operate. Based upon this testimony, and the cited utility
sales such as the CVEC sale, the BTLA could properly conclude that a probable
purchaser would be willing to pay more than NBV for PSNH’s property.
ii
PSNH argues that the BTLA erred by rejecting appraisals that used the
unit method, which has previously been approved by the BTLA. Specifically,
PSNH argues that the BTLA previously approved unit method appraisals in
Portland Pipe Line Corp. v. Town of Gorham, N.H. BTLA Nos. 24198-
08PT/25123-09PT/25539-10PT (July 22, 2013), aff’d, No. 2013-0613 (N.H.
Nov. 25, 2014) (non-precedential order), and Appeals of Town of Bow & a., 133
N.H. 194 (1990).
PSNH’s reliance upon these cases is misplaced. First, we have never
held that a single valuation approach or specific combination of approaches is
correct as a matter of law. See Appeal of Pennichuck Water Works, 160 N.H. at
38. To the contrary, the credibility of an appraisal is a question of fact that the
BTLA must decide based upon the evidence presented in a given case. Id. at
37-38. The fact that the BTLA accepted a unit approach in a different case, for
a different taxpayer, in a different tax year, based upon different appraisals,
and supported by different testimony has no bearing upon whether the BTLA
could properly reject the Tegarden and DRA appraisals in this case.
Similarly, with regard to the specific methods employed by Tegarden and
Dickman within their unit approaches, the BTLA was not required to accept
their testimony simply because it resembled testimony that the BTLA accepted
in a different case. Moreover, it is worth noting that, although PSNH argues
that both Tegarden and Dickman used accepted methods to perform unit
appraisals, the two unit appraisals were not calculated identically. For
example, both Tegarden and Dickman made varying discretionary decisions:
8
they applied different weights to their cost and income approaches, they
calculated different ratios of external obsolescence, and used different methods
to allocate their unit values. Thus, it is illogical to argue that any unit
appraisal that follows accepted methods must yield a credible opinion of
market value. Each appraisal necessarily requires the appraiser to make
various discretionary estimates and decisions. This is exactly why the
persuasiveness of a specific appraisal is a question of fact for the BTLA.
iii
PSNH next argues that the BTLA erred by rejecting the specific testimony
and appraisals of Tegarden and Dickman. We disagree. The BTLA determined
that the Tegarden and Dickman appraisals did not result in credible opinions
of market value and made specific findings to support its rejection of those
appraisals. The BTLA’s findings are supported by the record.
The BTLA found that Tegarden, in his unit appraisals and allocations,
did not consider the possibility of sale of any of the key components of PSNH’s
property. To appraise property at its full and true value, an appraiser must
value property at its “best and highest use.” 590 Realty Co., Ltd. v. City of
Keene, 122 N.H. 284, 285 (1982) (quotation omitted); see RSA 75:1. Best and
highest use is defined as the “use which will most likely produce the highest
market value, greatest financial return, or the most profit.” Steele v. Town of
Allenstown, 124 N.H. 487, 490 (1984) (quotation omitted). Sansoucy testified
that, in his opinion, PSNH could sell its hydroelectric plants separately, subject
to PUC approval. He further testified that there would be a robust market for
these hydroelectric plants, that new hydroelectric plants are expensive to
construct, and that their market value would greatly exceed their NBV. The
BTLA admitted into evidence a report prepared jointly by the PUC staff and the
Liberty Consulting Group, an outside consultant. This report concluded that
PSNH’s hydroelectric plants could be sold separately and for a higher value.1
Because of this evidence and Tegarden’s admission on cross-examination that
he never considered such a sale, the BTLA could properly conclude that
Tegarden’s appraisal was flawed.
The BTLA also found that Tegarden used a flawed income approach in
his appraisal. The BTLA criticized Tegarden’s income approach because: (1) he
1 PSNH argues that the Liberty Report should have played no role in the BTLA’s decision because
the report was issued after the 2011 and 2012 tax years. We find no error in the BTLA’s
consideration of this evidence. The BTLA recognized that any values within the report reflected
2013 values and stated that it would give the evidence the consideration it deserved. The BTLA
placed no weight on the actual values contained within the Liberty Report, and instead relied
upon the Liberty Report only for its conclusion that PSNH’s hydroelectric plants could be sold
separately and for a higher value. This aspect of the Liberty Report was consistent with testimony
from Sansoucy. Moreover, we note that the BTLA is not bound by the New Hampshire Rules of
Evidence. See RSA 71-B:7 (2012); N.H. Admin. Rules, Tax 201.30.
9
did not have specific revenue or expense information; (2) his estimate of net
operating income included large expense deductions that were either non-cash
expenses or items not typically included in the direct capitalization approach
for market valuation purposes; and (3) he treated reported depreciation as a
proxy for capital expenditures, which led to an overestimation of expenses.
PSNH argues that this was legally erroneous because Tegarden, Dickman, and
Heaton explained why this approach was correct. However, the BTLA was
under no obligation to accept the testimony of Tegarden, Dickman, or Heaton.
See Appeal of Pennichuck Water Works, 160 N.H. at 41. Additionally, the
municipalities’ experts testified that Tegarden’s income approach was flawed.
Therefore, the BTLA could properly reject Tegarden’s income approach.
The BTLA also found Tegarden’s cost approach to be flawed. In his cost
approach, Tegarden used the OCLBD approach to value PSNH’s property. The
BTLA found this approach, adjusted by Tegarden’s estimates of external
obsolescence, not to be probative of present market value because original cost
does not account for conditions of construction costs, inflation rates, and the
company’s strategic considerations at the time it constructed facilities. The
BTLA found his external obsolescence estimates to be high, in part, because
they were based upon another estimate — the rate of return required by a
potential buyer — that Tegarden inadequately supported. The municipalities
presented evidence that these methods resulted in market values that were not
accurate. Therefore, because there was conflicting expert testimony regarding
the validity of Tegarden’s cost approach, the BTLA could properly reject it.
In addition, the BTLA found Tegarden to be unqualified to appraise
portions of PSNH’s property and criticized his lack of familiarity with the
property. This finding is supported by the record. Tegarden acknowledged
that he is not an expert in appraising hydroelectric plants and stated that he
would turn down a job to appraise such a facility. Tegarden inspected only a
representative sample of PSNH’s property. The BTLA found that he
demonstrated little knowledge of PSNH’s Ayers Island Hydroelectric facility,
which is located in New Hampton, and that he could not explain why the value
he allocated to the Town of New Hampton doubled between 2011 and 2012.
Taken together, this evidence supports the BTLA’s finding that Tegarden was
not qualified to appraise portions of PSNH’s property.
In sum, the BTLA made numerous, specific findings which are supported
by the record, regarding why it rejected Tegarden’s appraisals and testimony.
Because the BTLA’s findings regarding Tegarden’s appraisals and testimony are
supported by the record and are not erroneous as a matter of law, we uphold
them. See id.
The BTLA found that Dickman’s unit appraisals and allocations had
many of the same flaws as Tegarden’s appraisals. However, the BTLA also
10
made numerous additional findings supporting its determination that
Dickman’s appraisals did not result in a credible opinion of market value.
Similar to Tegarden’s unit appraisal, Dickman’s unit appraisal involved a
combination of the cost and income approaches to valuation. However,
Dickman shifted how much weight he placed upon each approach each year:
80% to the cost approach in 2010, 90% to the cost approach in 2011, and 95%
to the cost approach in 2012. The BTLA found Dickman’s explanation for why
his weightings shifted over the three tax years to be unpersuasive.
Dickman made a deduction, which Tegarden did not make, for what
Dickman called “[n]on-taxable, [p]ollution [c]ontrol, etc.” items. The BTLA
found that this deduction was largely related to the construction of a scrubber
at the coal-fired generation facility in Bow. However, Dickman provided no
support for the amount that he deducted for 2011. For 2012, Dickman
provided some support, but the BTLA found his explanation not persuasive, in
part, because he applied a 30.79% depreciation factor and a 2.01% economic/
external obsolescence factor for brand new equipment. Furthermore, between
2011 and 2012, Dickman changed how he allocated this pollution control
deduction. In 2011, he deducted the value of the pollution control equipment
from his overall unit value of PSNH before he allocated the unit value to each
municipality. In 2012, however, he first allocated the unit value of PSNH to
each municipality and then deducted the value of the pollution control
equipment for the specific municipalities where the equipment was located.
The BTLA found that this variance had a dramatic effect upon the values
allocated to individual towns, noting, for example, that the value allocated to
the Town of Whitefield increased by $1,000,000 between 2011 and 2012
despite there being no changes to the assets located within that municipality.
The BTLA found that Dickman did not provide an independent opinion of
the market value of PSNH’s property in individual towns. See RSA 72:9
(requiring utility property to “be taxed in each town according to the value of
that part lying within its limits”). In contrast, the municipalities offered expert
testimony and exhibits that supported the BTLA’s finding. For example, the
municipalities submitted exhibits that demonstrated that when property is
added in one town, Dickman’s allocation method results in that value being
spread across multiple towns. The municipalities also demonstrated that
Dickman’s allocation method improperly attributed value for construction work
in progress in Deerfield to numerous other municipalities, and Dickman even
acknowledged in a deposition that his allocation resulted in errors as applied to
the Town of Rumney. The BTLA could properly credit this evidence.
In sum, the BTLA made numerous, specific findings, which are
supported by the record, regarding why it rejected Dickman’s appraisal
testimony. Because the BTLA’s findings regarding Dickman’s appraisal and
11
testimony are supported by the record and are not erroneous as a matter of
law, we uphold them. See Appeal of Pennichuck Water Works, 160 N.H. at 41.
B
PSNH next argues that the BTLA erred in determining that PSNH
presented only methodological challenges to the municipalities’ experts and
that it did not show that the municipalities’ assessments exceeded market
value.
The BTLA cited our decision in Porter for the proposition that evidence
that an assessor used flawed methods does not by itself carry a taxpayer’s
burden of proving disproportionality. See Porter, 150 N.H. at 369 (“While it is
possible that a flawed methodology may lead to a disproportionate tax burden,
the flawed methodology does not, in and of itself, prove the disproportionate
result.”). PSNH, on appeal, does not challenge either the validity of Porter or
the BTLA’s reliance upon that case. Instead, PSNH argues that: (1) the BTLA
did not make specific factual findings to support its conclusion that PSNH’s
challenges were methodological only; and (2) PSNH presented evidence — that
was not purely methodological — that demonstrated that the municipalities’
assessments were disproportional.
With respect to PSNH’s first argument, the BTLA correctly noted that the
taxpayer, PSNH, bears the burden of showing that the municipalities’
assessments were disproportional. The BTLA determined that PSNH had not
presented sufficient credible evidence to carry its burden of proving
disproportionality. Furthermore, the BTLA made thorough and specific
findings explaining why it rejected the testimony and appraisals of Tegarden
and Dickman. As discussed above, the BTLA’s factual findings are supported
by the record. The BTLA concluded that, because PSNH had not presented
sufficient credible evidence to meet its burden, PSNH’s remaining criticisms of
the methods employed by the municipal assessors could not, standing alone,
carry PSNH’s burden of proving disproportionality. The BTLA therefore found it
unnecessary to address such criticisms.
As to the second point, PSNH argues that, beyond simply criticizing the
municipal assessors’ methods of appraising PSNH’s property, it presented
evidence showing that the municipal assessments were disproportionate.
PSNH points to testimony by Heaton and Tegarden that it argues demonstrated
that municipal assessors Sansoucy and Roberge incorrectly and
disproportionately assessed PSNH’s property. PSNH specifically points to
testimony of Heaton and Tegarden discussing flaws in Sansoucy’s analyses,
estimates, and reliance on the RCNLD approach to value. PSNH also criticizes
assessor Roberge’s reliance on the RCNLD approach to value and points to
testimony by Roberge acknowledging his lack of familiarity with the regulations
under which PSNH operates.
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To the extent that Tegarden and Heaton testified that the municipal
assessments were disproportionate because the market value of PSNH’s
property is less than the amount assessed by those municipalities, the BTLA
specifically rejected this opinion evidence. See Appeal of Pennichuck Water
Works, 160 N.H. at 41 (The trier of fact “is not compelled to accept the opinion
evidence of any one witness or group of witnesses, including expert
witnesses.”). Because it concluded that PSNH failed to carry its burden of
demonstrating disproportionality, the BTLA could reasonably have determined
that any of Heaton’s or Tegarden’s criticisms of the methods employed by
Sansoucy and Roberge were not sufficient to change this outcome. See Porter,
150 N.H. at 369.
C
PSNH also contends that the doctrine of judicial estoppel should operate
to bar municipalities from assessing PSNH’s property at a value greater than
the DRA’s assessed value because the municipalities did not challenge the
DRA’s assessment. PSNH argues that, without estoppel, a municipality can
accept the DRA’s lower assessed values for purposes of calculating that
municipality’s share of county taxes but then use higher local assessment
values to determine PSNH’s share of the municipality’s taxes.
New Hampshire has adopted the doctrine of judicial estoppel as part of
its common law. See Kelleher v. Marvin Lumber & Cedar Co., 152 N.H. 813,
848 (2005). “Where a party assumes a certain position in a legal proceeding,
and succeeds in maintaining that position, it may not thereafter, simply
because its interests have changed, assume a contrary position.” Id.
(quotation, brackets, and ellipsis omitted). The purpose of the doctrine of
judicial estoppel is “to protect the integrity of the judicial process by prohibiting
parties from deliberately changing positions according to the exigencies of the
moment.” Id. (quotation omitted). “While the circumstances under which
judicial estoppel may be invoked vary with each situation, the court considers
the following three factors: (1) whether the party’s later position is clearly
inconsistent with its earlier position; (2) whether the party has succeeded in
persuading a court to accept that party’s earlier position; and (3) whether the
party seeking to assert an inconsistent position would derive an unfair
advantage or impose an unfair detriment on the opposing party if not
estopped.” Id.
We find the doctrine of judicial estoppel to be inapplicable to this case.
First, the doctrine applies when a party takes a position in a legal proceeding
and then, subsequently, takes a contrary position. See id. Here, however, the
DRA equalization process is not a legal proceeding in which the municipalities
are “litigants.” Second, PSNH has not demonstrated that the municipalities
have taken inconsistent positions. The municipalities are not accepting the
DRA’s lower assessed values when it serves the municipalities’ interests, as
13
PSNH argues. To the contrary, the municipalities submit their local assessed
values to the DRA. See RSA 21-J:34, I (2012). It is the DRA that unilaterally
substitutes the allocated values from its RSA chapter 83-F utility appraisal for
the local assessed values supplied by the municipalities.2 Thus, the “position”
the municipalities are asserting is that their local assessed values represent the
correct market value of PSNH’s property. This position is consistent with
assessing taxes against PSNH based upon those local assessed values.
Accordingly, the doctrine of judicial estoppel is inapplicable here.3
PSNH next argues that the BTLA violated state statutory, state
constitutional, and federal constitutional requirements that taxation be
uniform and proportional by allowing local municipal assessments to be
significantly greater than the DRA assessments that are used to determine a
municipality’s share of county taxes.
As a preliminary matter, we note that, although PSNH argues that the
BTLA’s decision violated Section 1 of the Fourteenth Amendment to the Federal
Constitution in the “Questions Presented” section of its brief, PSNH made no
further reference to the Federal Constitution in its brief. Accordingly, we
conclude that PSNH has waived its federal claims, and we analyze its
arguments under the State Constitution only. See State v. Burr, 142 N.H. 89,
92 (1997) (“[T]he defendant’s failure to devote anything more than passing
reference in his brief to retrospective laws and vested rights under the Federal
Constitution renders those federal claims waived.”).
Part I, Article 12 of the New Hampshire Constitution establishes that
“[e]very member of the community has a right to be protected by it, in the
2 Each municipality is required to assess the property within its jurisdiction. The municipalities
must report their local assessments to the DRA. See RSA 21-J:34, I. The DRA, using these town
reports, is required to equalize annually the value of the property in the state. See RSA 21-J:3,
XIII (Supp. 2016). However, the DRA is not required to use the local assessments for purposes of
its equalization process. See Appeal of Coos County Comm’rs, 166 N.H. 379, 385 (2014)
(“[N]othing in the plain language of RSA 21-J:3, XIII prohibits the DRA from using its utility tax
appraisal when determining equalized value.”). In fact, the DRA stated in its amicus brief that
“[i]n determining a municipality’s equalized valuation for purposes of the county tax, the [DRA]
includes the value of utility property and uses the allocated value from its RSA 83-F appraisal for
each municipality.” Thus, it is the DRA, not the municipalities, that is electing to use the DRA’s
valuations for purpose of determining a municipality’s share of county taxes.
3 PSNH argues that, in addition to judicial estoppel, quasi estoppel should operate to bar the
municipalities from assessing PSNH’s property at a value greater than the DRA’s assessed value
for PSNH. Quasi estoppel is “[a]n equitable doctrine preventing one from repudiating an act or
assertion if it would harm another who reasonably relied on the act or assertion.” Black’s Law
Dictionary 669 (10th ed. 2014); see also Farnum v. Bryant, 34 N.H. 9, 22 (1856) (ruling that a
party who previously renounced and waived his interest in an estate was estopped from asserting
that he was entitled to a share of that estate because the change in position would injure the
other party for relying upon that prior renunciation). However, PSNH has not argued that it
reasonably relied, to its detriment, upon any act or assertion of the municipalities. Accordingly,
the doctrine of quasi estoppel is inapplicable here.
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enjoyment of his life, liberty, and property; he is therefore bound to contribute
his share in the expense of such protection.” N.H. CONST. pt. I, art. 12. “This
article requires that a given class of taxable property be taxed at a uniform rate
and that taxes must be not merely proportional, but in due proportion, so that
each individual’s just share, and no more, shall fall upon him.” Eby v. State,
166 N.H. 321, 328 (2014) (quotation omitted). Part II, Article 5 of the State
Constitution grants the legislature the power to “impose and levy proportional
and reasonable assessments, rates, and taxes, upon all the inhabitants of, and
residents within, the said state; and upon all estates within the same.” N.H.
CONST. pt. II, art. 5. “Each taxpayer’s property must be valued at the same
percentage of its true value as all the taxable property in the taxing district
. . . .” Sirrell v. State, 146 N.H. 364, 370 (2001).
However, “the demand of constitutional equality in taxation anticipates
some practical inequalities.” Id. (quotation and brackets omitted). “Absolute
mathematical equality is not obtainable in all respects if taxation is to be
administered in a practical way.” Id. (quotation omitted).
As discussed above, a municipality’s share of county taxes is calculated,
in part, based upon the DRA’s RSA chapter 83-F utility assessments. PSNH
argues that if a municipality thereafter levies taxes upon a utility based upon a
higher market value for that property, the utility is paying a higher proportion
of the county tax than other non-utility residents of that municipality. We
disagree.
Each municipality assessed the fair market value of all the property
within its borders. These assessments were used to determine the proportion
that each property owner in the municipality would pay of the municipality’s
share of county taxes. As discussed above, PSNH failed to demonstrate that its
property was being assessed disproportionately compared to other taxpayers
within each municipality.
PSNH correctly argues that if the DRA had used the local utility
assessment figures, which were generally higher than the values that the DRA
used, when determining each municipality’s share of county taxes, these
municipalities would have been apportioned a higher share of county taxes.
Under that circumstance, however, because the local utility assessments would
remain unchanged, the proportion of county taxes that each property owner in
a municipality would owe to the municipality would also remain unchanged.
Thus, if the DRA assigned a higher share of county taxes to one of the
municipalities, all property owners in that municipality, including PSNH, would
pay a higher amount of taxes in proportion to the value of their property.
Because PSNH pays the same proportion of local taxes, regardless of the value
of county taxes owed by the municipality, PSNH is not being taxed
disproportionately compared to the other municipal residents, and there is no
constitutional or statutory violation. See Appeal of City of Nashua, 138 N.H.
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261, 266 (1994) (“Our constitution mandates that all taxpayers in a town be
assessed at the same proportion of fair market value.” (quotation and brackets
omitted) (emphasis added)); Stevens v. City of Lebanon, 122 N.H. 29, 32 (1982)
(“It is well settled that the test in an abatement case is whether the taxpayer is
paying more than his proportional share of taxes.” (emphasis added)).
Furthermore, PSNH cannot show that it is harmed by this situation. The
BTLA found that the DRA’s valuations of PSNH’s property, which were used to
determine a municipality’s share of county taxes, did not yield an accurate
opinion of market value. Consequently, PSNH’s property is effectively being
valued disproportionately lower at the county level. As a result, because the
respondent municipalities owe a lower amount of county taxes, the amount
that PSNH contributes toward county taxes in such a municipality is also
lower, in due proportion to each of the other residents within the municipality.
In other words, PSNH is benefiting from the discrepancy between the DRA’s
valuations of its property and the municipalities’ valuations of its property.
That being said, the substantial variance between the DRA’s assessments
and the local assessments is troubling. To the extent that this is caused by
methodological conflicts in how the DRA and municipalities are appraising
utility property, we note that the legislature has provided no guidance on the
methodology that should be used to determine utility property’s full and true
value. See RSA 75:1; Appeal of Pennichuck Water Works, 160 N.H. at 38 (“We
have never attempted to tie the fact finder’s hands with a rigid fair market
value formula in the absence of legislative directive.” (quotation, brackets, and
ellipsis omitted)). In fact, the legislature has explicitly sanctioned a system
under which the DRA and municipalities are free to pursue conflicting
methodologies that can, and often do, result in substantially different
assessments of value. See Laws 2010, 219:1 (“Nothing in [RSA chapter 83-F] is
intended to restrict the ability of any municipality to independently assess
utility property for the purpose of locally administered municipal, county,
school, or district taxes.”). In the absence of legislative directive, we have held
that the commonly accepted appraisal methods, or a combination thereof, may
all be properly considered. See Appeal of Pennichuck Water Works, 160 N.H.
at 38. As we had occasion to observe more than twenty years ago, disputes
such as this one may be avoided, or at least reduced in complexity, by “the
adoption of a uniform method of utility valuation for ad valorem tax purposes.”
Southern N.H. Water Co., 139 N.H. at 145. However, the decision to adopt
such a uniform methodology belongs to the legislature, not this court.
Affirmed.
DALIANIS, C.J., and HICKS, CONBOY, and BASSETT, JJ., concurred.
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