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Segtel, Inc. v. City of Nashua

Supreme Court of New Hampshire

June 9, 2017

SEGTEL, INC.
v.
CITY OF NASHUA

          Argued: February 23, 2017

         Hillsborough-southern judicial district

          Cole Associates Civil Law, PLLC, of Lebanon (Carolyn K. Cole on the brief and orally), for the plaintiff.

          Office of Corporation Counsel, of Nashua (Celia K. Leonard on the brief and orally), for the defendant.

          HICKS, J.

         The defendant, the City of Nashua (City), appeals an order of the Superior Court (Temple, J.) granting summary judgment to the plaintiff, segTEL, Inc., on the basis that the City lacked the authority to tax the plaintiff's use of the City's rights of way. See RSA 72:6, :23 (2012). We affirm.

         I. Factual Background

         The evidence submitted on summary judgment, viewed in a light most favorable to the City, see N. New England Tel. Operations v. City of Concord, 166 N.H. 653, 655 (2014), supports the following facts. The City has issued licenses to certain utility providers - FairPoint Communications, Inc. and Public Service of New Hampshire (collectively, the utility providers) - that have placed poles and conduits over certain rights of way owned by the City. The utility providers pay property tax to the City pursuant to a 2005 ordinance, which amended the terms of existing pole licenses to add the following language: "In accordance with the requirements of RSA 72:23[, ] I (b), the licensees(s) and any other entity nor [sic] or hereafter using or occupying municipal property pursuant to this license shall be responsible for the payment of, and shall pay, all properly assessed personal and real property taxes . . . ." (Quotations omitted.)

         The plaintiff is a telecommunications company that owns and/or operates a fiber optic cable network throughout New Hampshire - including within the City. It does not own any poles or conduits within the City, and does not have its own license from the City authorizing its occupation of the City's rights of way. Instead, pursuant to pole attachment agreements with the utility providers, the plaintiff remits a fee to the utility providers in exchange for the right to place its fiber optic cables on their poles and conduits. It is undisputed that these pole attachment agreements do not require the plaintiff to pay property taxes assessed by the City.

         Having become aware of the plaintiff's use of the utility providers' poles and conduits, the City in 2014 assessed the plaintiff property taxes of $1, 507.94 for its use of the City's rights of way. The plaintiff applied for an abatement, which the City denied. Thereafter, the plaintiff brought this action in superior court, seeking: (1) a declaratory judgment that the City is not entitled to impose the tax; and (2) to strike the City's 2014 tax assessment. The trial court granted summary judgment to the plaintiff, ruling that "[b]ecause [the plaintiff] has not entered into an agreement in which it consented to be taxed, " the City could not lawfully tax the plaintiff for its use and occupation of the City's rights of way. This appeal followed.

         II. Analysis

         "When reviewing a trial court's grant of summary judgment, we consider the affidavits and other evidence, and all inferences properly drawn from them, in the light most favorable to the non-moving party." N. New England Tel. Operations, 166 N.H. at 655 (quotation omitted). "If our review of the evidence does not reveal any genuine issue of material fact, and if the moving party is entitled to judgment as a matter of law, we will affirm the trial court's decision." Id. (quotation omitted). "We review the trial court's application of the law to the facts de novo." Id. (quotation omitted).

         On appeal, the City argues that it has statutory authority pursuant to RSA 72:6 and RSA 72:23 to tax the use and occupancy of its rights of way. In opposition, the plaintiff argues that a statutory precondition for the assessment of taxes has not been met in the instant case.

         Resolution of this issue requires that we engage in statutory interpretation. The interpretation of a statute is a question of law, which we review de novo. Bank of N.Y. Mellon v. Dowgiert, 169 N.H. 200, 204 (2016). In matters of statutory interpretation, we are the final arbiters of the legislature's intent as expressed in the words of the statute considered as a whole. Id. In construing its meaning, we first examine the language found in the statute, and when possible, we ascribe the plain and ordinary meanings to the words used. Id. We interpret legislative intent from the statute as written and will not consider what the legislature might have said or add language that the legislature did not see fit to include. Id. ...


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