CITY OF NASHUA
Argued: February 23, 2017
Associates Civil Law, PLLC, of Lebanon (Carolyn K. Cole on
the brief and orally), for the plaintiff.
of Corporation Counsel, of Nashua (Celia K. Leonard on the
brief and orally), for the defendant.
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.
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.)
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
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.
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.
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.
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. ...