APPEAL OF NEW HAMPSHIRE ELECTRIC COOPERATIVE, INC. (New Hampshire Board of Tax and Land Appeals)
Argued: January 12, 2017
of Tax and Land Appeals
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, New Hampshire Electric
Mitchell Municipal Group, P.A., of Laconia (Judith E.
Whitelaw and Walter L. Mitchell on the joint brief, and Mr.
Mitchell orally), for respondents Town of Andover, Town of
Brentwood, Town of Grafton, Town of Lempster, Town of Lyme,
Town of New Hampton, Town of Northfield, Town of Plainfield,
Town of Thornton, and Town of Warren.
Gardner, Fulton, & Waugh, PLLC, of Lebanon (Shawn M.
Tanguay on the joint brief), for respondent Town of
Donahue, Tucker & Ciandella, PLLC, of Meredith
(Christopher L. Boldt and Eric A. Maher on the joint brief),
for respondents Town of Epping and Town of Unity.
E. Sansoucy, self-represented, by joint brief.
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
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
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.
Hampshire Electric Cooperative, Inc. (NHEC) appeals an order
of the New Hampshire Board of Tax and Land Appeals (BTLA)
denying 16 of NHEC's 23 individual tax abatement appeals
regarding its property located in 11 of the respondent
municipalities for tax year 2011 and 12 of the respondent
municipalities for tax year 2012. We affirm.
relevant facts follow. NHEC is an electric cooperative, which
means that it is member-owned by its customers. NHEC provides
electricity distribution services to approximately 80, 000
members in 115 municipalities, but it does not engage in the
generation of electricity and provides only incidental
transmission services. NHEC operates under a "regulatory
compact" that grants NHEC a franchise to operate a
monopolistic electric distribution company. In return, NHEC
is required to provide electric service to all who request it
within its territory and to keep its utility property in good
working order. Unlike a privately-owned utility, NHEC's
rates are not set by the New Hampshire Public Utilities
Commission (PUC). Instead, NHEC's member- elected board
of directors establishes NHEC's electricity rates based
upon "cost of service" principles.
property consists primarily of wooden utility poles,
attachments and conduits over public and private
rights-of-way, substations, land, buildings, and other
equipment located in some, but not all, of the
municipalities. The parties' experts agreed that NHEC is
professionally managed and that its property is in good
condition and is well maintained.
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 NHEC's property at the
state level for purposes of the RSA chapter 83-F utility tax.
See RSA ch. 83-F (2012 & Supp. 2016). For the
2011 and 2012 tax years, the municipal assessments of
NHEC's property that are the subject of these tax
abatement appeals were substantially higher than the
DRA's assessments of the same property.
filed tax abatement appeals to the BTLA for 23 municipal
assessments of its property that occurred in 2011 and 2012.
The BTLA held a consolidated hearing over nine days between
January and February 2015 regarding NHEC's tax abatement
appeals. During the hearing, NHEC presented expert witness
testimony and an appraisal of NHEC's property from George
K. Lagassa, a certified general real estate appraiser and the
owner of Mainstream Appraisal Associates, LLC. In his
appraisals, Lagassa estimated the market value of NHEC's
property by reconciling the results of four valuation
approaches: a sales comparison approach; an income approach,
which estimated the value of NHEC's property by
capitalizing the company's net operating income; a cost
approach, which estimated the net book value (NBV) of
NHEC's property by calculating the original cost less
book depreciation (OCLBD) of NHEC's property; and a
second cost approach, which estimated the value of NHEC's
property by calculating the reproduction cost new less
depreciation (RCNLD) of NHEC's property.
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, NHEC submitted the DRA appraisals that Dickman
had prepared for the purpose of the RSA chapter 83-F
statewide utility property tax. Dickman used the "unit
method" to appraise NHEC'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 his unit value, Dickman
primarily used two valuation approaches: a cost approach,
which estimated the value of NHEC's property based upon
the OCLBD of NHEC's property; and an income approach,
which estimated the value of NHEC's property by
capitalizing the company's net operating income.
municipalities presented expert testimony and appraisals from
three certified New Hampshire assessors: Gary J. Roberge, CEO
of Avitar Associates of New England, Inc.; Frederick H.
Smith, of Brett S. Purvis & Associates; and George E.
Sansoucy, who is also a licensed New Hampshire engineer.
Roberge used an RCNLD approach to value NHEC's property
in the municipalities for which he was engaged. Smith also
used an RCNLD approach to value NHEC's property in the
municipalities for which he was engaged. To estimate the
value of NHEC'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.
2015, the BTLA issued a thirty-two page order granting seven
of NHEC's abatement appeals and denying the remainder.
For the appeals that it granted, the BTLA found that the
municipal assessors acknowledged or reached value conclusions
reflective of a material degree of overassessment of the
properties at issue. Regarding NHEC's other appeals, the
BTLA found that the Lagassa appraisals and DRA appraisals did
not result in a credible opinion of market value and ruled
that NHEC 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 upon assessment methodology do not, and
cannot, carry NHEC's burden of proving
filed a motion for rehearing. The BTLA issued a written order
denying NHEC's motion in September 2015. This appeal
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 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
appeal, NHEC argues that the BTLA erred by: (1) rejecting the
DRA appraisals and Lagassa's appraisals; (2) ruling that
NHEC had presented only methodological challenges to the
municipalities' assessments; and (3) violating
constitutional and statutory requirements that taxation be
uniform and proportional by rejecting NHEC's estoppel
argument and allowing local municipal assessments to be