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Northern New England Telephone Operations, LLC v. City of Concord

Supreme Court of New Hampshire

August 29, 2014

Northern New England Telephone Operations, LLC d/b/a FairPoint Communications - NNE
v.
City of Concord

Argued February 20, 2014.

Merrimack.

Devine, Millimet & Branch, PA, of Manchester ( Daniel E. Will and Joshua M. Wyatt on the brief, and Mr. Will orally), for the petitioner.

[166 N.H. 654] City Solicitor's Office, of Concord ( James W. Kennedy, city solicitor, and Danielle L. Pacik, deputy city solicitor, on the brief, and Mr. Kennedy orally), for the respondent.

HICKS, J. DALIANIS, C.J., and CONBOY, LYNN, and BASSETT, JJ., concurred.

OPINION

Page 1191

Hicks, J.

The respondent, the City of Concord (City), appeals rulings by the Superior Court ( McNamara, J.) granting summary judgment in favor of the petitioner, Northern New England Telephone Operations, LLC d/b/a FairPoint Communications - NNE (FairPoint), in its equal protection challenge to the City's taxation of FairPoint's use and occupation of public property, and striking the tax levied against FairPoint. We vacate and remand.

The trial court found, or the record supports, the following facts. In order to provide telecommunications services throughout the City, FairPoint maintains poles, wires, cables, and other equipment within the City's public rights-of-way. For the 2000 through 2010 tax years, the City imposed a real estate tax upon FairPoint for its use and occupation of this public property (the right-of-way tax).[1] See RSA 72:6 (1991); RSA 72:23, I

Page 1192

(Supp. 2000) (amended 2002, 2003, 2006, 2011).

Prior to 2010, the City did not impose a right-of-way tax upon Comcast, which utilizes the City's rights-of-way to provide cable services pursuant to a franchise agreement. The City began imposing the tax upon Comcast in 2010 in response to a ruling by the New Hampshire Board of Tax and Land Appeals (BTLA) that, notwithstanding the franchise agreement, Comcast was subject to the tax. Prior to 2008, the City did not impose the same tax upon Public Service of New Hampshire (PSNH) because it was unaware that PSNH had used and occupied the rights-of-way. Similarly, the City did not tax certain other users of its rights-of-way for their use and occupation of public property during the relevant tax years because it was not aware of their usage.

FairPoint brought an action challenging, in relevant part, the constitutionality of the City's right-of-way tax assessments against it for the 2000 through 2010 tax years. The parties filed cross-motions for summary judgment. In granting FairPoint's motion, and denying the City's motion, the trial court ruled, as an initial matter, that " intentionality" was not a required element of FairPoint's equal protection claim. Next, having implicitly found that the City had selectively taxed FairPoint, the court reasoned:

Concord's decision not to tax others similarly situated was not an exercise of judgment; rather, it was due to a misunderstanding of [166 N.H. 655] the law with respect to Comcast, and a misunderstanding of the facts that other entities, such as PSNH and others[,] ... were using Concord's right-of-way. There can be no serious argument that the City of Concord had a rational governmental interest in deciding not to tax entities based on its misunderstanding of the law or its lack of diligence in ...

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