Verizon New England, Inc. v. City of Rochester

855 A.2d 497, 151 N.H. 263, 2004 N.H. LEXIS 131
CourtSupreme Court of New Hampshire
DecidedJuly 16, 2004
DocketNo. 2003-572
StatusPublished
Cited by15 cases

This text of 855 A.2d 497 (Verizon New England, Inc. v. City of Rochester) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Verizon New England, Inc. v. City of Rochester, 855 A.2d 497, 151 N.H. 263, 2004 N.H. LEXIS 131 (N.H. 2004).

Opinion

DUGGAN, J.

The plaintiff, Verizon New England, Inc. (Verizon), appeals a decision of the Superior Court (T. Nadeau, J.) ruling that the defendant, City of Rochester (city), could impose a real estate tax on Verizon for its [265]*265use of the public ways. The city cross-appeals, arguing that the trial court’s decision to grant Verizon’s petitions for tax abatement in part was erroneous. We affirm in part, vacate in part, reverse in part and remand.

I. Facts

This case is before us again after remand. N.E. Tel. & Tel. Co. v. City of Rochester, 144 N.H. 118 (1999) (Rochester T). We recite only a brief history of the facts necessary to decide this appeal.

Verizon provides telecommunications services to the residents of the city. Id. at 119. In accordance with RSA 231:161 (1993), Verizon obtained licenses from the city for the placement of its poles, wires, cables and other equipment on city-maintained highways. Id.

In March 1996, the city manager and the commissioner of public works petitioned the city council to amend Verizon’s pole licenses to include language from RSA 72:23, 1(b) (1991) (amended 1993, 1999, 2002), which would require Verizon to pay real estate taxes for its use of the public ways. Id. In August 1996, the mayor and the city council determined that the public good required the licenses to be amended and granted the petition. Id. at 119-20.

Verizon appealed the mayor and city council’s decision to the superior court. Id. at 120. In June 1997, the court granted Verizon’s motion for summary judgment and held that: (1) Verizon’s licenses were not leases or other agreements within the meaning of RSA 72:23,1(b); and (2) the public good did not require the city to amend Verizon’s licenses. Id. The city appealed.

On appeal, we reversed the trial court’s decision. We held that Verizon’s pole licenses constituted agreements to occupy and use public property and, therefore, the terms of RSA 72:23,1(b) were applicable. Id. at 121. We also held that the amendments were required by the public good. Id. at 122. Accordingly, we reversed the trial court’s order insofar as it prohibited the city from amending Verizon’s licenses and remanded for further proceedings. Id.

On remand, the trial court ruled that the city could lawfully amend Verizon’s pole licenses to require Verizon to pay real estate taxes. However, the trial court also found that the city “failed to follow a recognized methodology in reaching its conclusions regarding the market value of Verizon’s use of the land pursuant to its pole licenses.” As a result, the court granted Verizon’s petitions for abatement “to the extent that the [c]ity’s tax bills ... must be reassessed based on an appropriate methodology.” This appeal followed.

On appeal, Verizon argues that: (1) RSA 72:23, 1(b) does not allow the city to tax Verizon’s use of the public ways; (2) the city’s proposed tax [266]*266unconstitutionally singles out Verizon; and (3) the city’s amendment of Verizon’s pole licenses is not consistent with the public good. In its cross-appeal, the city argues that the trial court erred in granting in part Verizon’s petitions for abatement because Verizon failed, as a matter of law, to satisfy its burden of establishing that it is paying more than its proportional share of the common tax burden. We address each argument in turn.

II. RSA 72:23

Verizon advances five reasons why RSA 72:23, 1(b) does not allow the city to tax its use of the public ways: (1) its use of the public ways is a public use, as opposed to a private one; (2) the city cannot establish that it owns the public ways; (3) Verizon has only an intangible right to use the public ways, as opposed to an interest in the occupation of the real property itself; (4) its use of the land cannot be properly assessed; and (5) the city’s “leases or other agreements” with Verizon did not require the payment of a tax.

The issues raised by Verizon require statutory interpretation. This court is the final arbiter of the intent of the legislature as expressed in the words of a statute considered as a whole. Remington Invs. v. Howard, 150 N.H. 653, 654 (2004). In interpreting a statute, we first look to the language of the statute itself, and, if possible, construe that language according to its plain and ordinary meaning. Id. Where the language of a statute is clear on its face, its meaning is not subject to modification. Id. We will neither consider what the legislature might have said nor add words that it did not see fit to include. Id. Unless we find that the statutory language is ambiguous, we need not look to legislative intent. Id. We review the trial court’s interpretation of a statute de novo. Id.

Verizon first argues that its use of the public ways is a public use, as opposed to a private one, and, therefore, it cannot be subject to taxation under the statute. We disagree.

In pertinent part, RSA 72:23,1(b) states:

All leases and other agreements, the terms of which provide for the use or occupation by others of real or personal property owned by the state or a city, town, school district, or village district, entered into after July 1, 1979, shall provide for the payment of properly assessed real and personal property taxes by the party using or occupying said property no later than the due date.

We hold that the language of RSA 72:23, 1(b) is unambiguous. According to the plain language of the statute, leases and other [267]*267agreements which permit the use or occupation of public property must provide for the payment of properly assessed real estate taxes. The statute does not include an exemption for private companies that use or occupy public property to provide a public service. Therefore, we conclude that, irrespective of the type of service to be provided, the legislature intended for leases and other agreements that permit the use or occupation of public property to include a provision requiring payment of properly assessed real estate taxes.

Second, Verizon argues that because the city cannot establish that it owns the public rights of way, RSA 72:23,1(b) does not permit the city to assess real estate taxes for Verizon’s use of the public ways. We disagree.

In matters of statutory interpretation, we adhere to the principles set forth above. We further note that we do not construe statutes in isolation; instead, we attempt to do so in harmony with the overall statutory scheme. Nilsson v. Bierman, 150 N.H. 393, 395 (2003). When interpreting two statutes which deal with a similar subject matter, we construe them so that they do not contradict each other, and so that they will lead to reasonable results and effectuate the legislative purpose of the statutes. Id.

As set forth above, leases or other agreements “which provide for the use or occupation by others of real or personal property owned by ... a city ... shall provide for the payment of properly assessed real and personal property taxes by the party using or occupying said property.” RSA 72:23,1(b) (emphasis added).

Because the legislature did not define “own,” we look to other statutes concerning public ways in order to construe RSA 72:23, 1(b) in harmony with the overall statutory scheme.

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Cite This Page — Counsel Stack

Bluebook (online)
855 A.2d 497, 151 N.H. 263, 2004 N.H. LEXIS 131, Counsel Stack Legal Research, https://law.counselstack.com/opinion/verizon-new-england-inc-v-city-of-rochester-nh-2004.