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Appeal of Liberty Assembly of God

May 22, 2012

APPEAL OF LIBERTY ASSEMBLY OF GOD


The opinion of the court was delivered by: Conboy, J.

Board of Tax and Land Appeals

(New Hampshire Board of Tax and Land Appeals)

Argued: February 9, 2012

The petitioner, Liberty Assembly of God (Assembly), appeals the decision of the New Hampshire Board of Tax and Land Appeals (BTLA) upholding a 2008 decision of the respondent, City of Concord (City), denying Assembly's request for a religious use tax exemption. We affirm.

The following facts are drawn from the record. Assembly is a "regularly recognized and constituted" religious denomination, incorporated in the State of New Hampshire. RSA 72:23, III (2003). Assembly owns 26.13 acres of land in Concord; approximately twenty acres are in "current use." See RSA ch. 79-A

(2003 & Supp. 2011). The undeveloped land is used primarily for agricultural or forestry purposes, although there is a "prayer trail" around its perimeter. The developed portion of Assembly's property includes a main building, a freestanding barn now used for storage, and the parsonage and associated garage.

From 1994, when Assembly acquired its property, until 2008, the City granted Assembly a religious use tax exemption on all of its property. However, in 2008, the City granted Assembly an exemption on only forty percent of its property, concluding that sixty percent of the property was not used and occupied for religious training or other religious purposes, and was therefore taxable. The City subsequently revised its determination and exempted sixty percent of the property.

The City exempted from taxation the storage barn, parsonage and garage, and one of the six acres of land not in current use "appertaining to them." RSA 72:23, III. The remaining five acres not in current use were allocated as taxable or exempt at the same proportion as the taxable and exempt square footage of the main building; 2.2 acres were assessed as a primary commercial site supporting the main building and 2.8 acres were assessed as supplemental commercial land. The City arrived at the sixty percent exempt/forty percent taxable ratio based upon the use of various areas of the combined square footage of both floors of the main building.

The City concluded that of the 13,988 square feet of the first floor, 12,516 square feet were exempt as they were used directly for religious purposes; this included the sanctuary, church offices, child care space, prayer room, recreation room, kitchen and fellowship hall, library and record room, classrooms and computer lab, food pantry, storage rooms, and restrooms. The remaining 1,472 square feet on the first floor, consisting of an apartment and an additional room available for missionaries on furlough, were considered taxable under the City's assessment. These rooms were not used by furloughed missionaries at any time during 2008, and only three or four times during the preceding four-year period.

The City considered the entire second floor of the main building (6,916 square feet) taxable as not being used for religious purposes. This space consisted of five general areas: (1) an apartment and two storage rooms occupied or utilized by a part-time caretaker and his family; (2) a room occupied by the grandson of Assembly's then-secretary/treasurer; (3) vacant apartments; (4) "dorm" rooms minimally used for storage; and (5) a men's restroom, auxiliary to the restrooms on the first floor. Following appeal, the BTLA upheld the City's apportionment for tax year 2008.

Our review of BTLA decisions is well established:

The burden of proof shall be upon the party seeking to set aside any order or decision of the BTLA to show that the same is clearly unreasonable or unlawful, and all findings of the BTLA upon all questions of fact properly before it shall be deemed to be prima facie lawful and reasonable; and the order or decision appealed from 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.

Appeal of City of Concord, 161 N.H. 169, 171 (2010) (quotation and brackets omitted); see RSA 541:13 (2007). "Although we review the [BTLA's] findings of fact pursuant to this deferential standard, we review its statutory interpretation de novo." Appeal of Gamas, 158 N.H. 646, 648 (2009).

Assembly asserts that the BTLA's ruling was erroneous on three interrelated grounds: (1) the City and the BTLA misinterpreted RSA 72:23, III because it should be read as fully exempting houses of worship from taxation; (2) the City's inquiries into the religious uses and purposes of each room within the church building unconstitutionally "entangled" the government with religion; and (3) even if the statute and constitution permit parsing taxable from exempt space within a house of worship, all of Assembly's space should be exempt as serving a religious purpose. We address each argument in turn.

I. Whether RSA 72:23, III Fully Exempts Houses of Worship from Taxation

The statutory provision setting forth the tax exemption at issue states in pertinent part:

The following real estate and personal property shall, unless otherwise provided by statute, be exempt from taxation: . . .

Houses of public worship, parish houses, church parsonages occupied by their pastors, convents, monasteries, buildings and the lands appertaining to them owned, used and occupied directly for religious training or for other religious purposes by any regularly recognized and constituted denomination, creed or sect, organized, incorporated or legally doing business in ...


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