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Polonsky v. Town of Bedford

Supreme Court of New Hampshire

June 28, 2018

RICHARD POLONSKY
v.
TOWN OF BEDFORD

          Argued: September 14, 2017

          Alfano Law Office, PLLC, of Concord (John F. Hayes on the brief and orally), for the plaintiff.

          Upton & Hatfield, LLP, of Concord (Barton L. Mayer and Michael P. Courtney on the brief, and Mr. Mayer orally), for the defendant.

          Margaret M.L. Byrnes and Stephen C. Buckley, of Concord, for New Hampshire Municipal Association, by brief, as amicus curiae.

          Beaumont & Campbell, Prof. Ass'n., of Salem (Bernard H. Campbell on the brief), for New Hampshire Tax Collectors Association, as amicus curiae.

          New Hampshire Legal Assistance, of Claremont (Ruth Heintz and Bennett B. Mortell on the brief), for Kathryn and Zachary Triano, as amici curiae.

          HICKS, J.

         The plaintiff, Richard Polonsky, appeals, and the defendant, the Town of Bedford (Town), cross-appeals, an order of the Superior Court (Ruoff, J.) on the parties' cross-motions for summary judgment as to the plaintiff's petition for injunctive and declaratory relief and to quiet title to residential property that the Town acquired by tax deed in 2011. On appeal, the plaintiff argues that the trial court erred in ruling that the Town's failure to provide timely statutory notice to him of its July 2013 "offering for sale," as required by RSA 80:89, I (2012), did not invalidate the tax deed. The plaintiff also asserts that the trial court erred by failing to find that the penalty the Town may recover pursuant to RSA 80:90, I(f) (2012) (amended 2016) constitutes "double taxation" in violation of the State Constitution. See N.H. CONST. pt. I, art. 12, pt. II, art. 5.

         In its cross-appeal, the Town asserts that the trial court misinterpreted the three-year period set forth in RSA 80:89, VII (2012) when it determined that, although the tax deed was recorded more than three years ago, the plaintiff may bring a claim for any amount the Town recovers from the property's eventual sale that is in excess of the outstanding taxes, interest, costs, and statutory penalty owed ("excess proceeds"). With respect to an issue we remanded to the trial court after the appeal and cross-appeal were filed, the Town contends that applying the 2016 amendment to RSA 80:90, I(f), which reduced the penalty that the Town may recover when it sells the property from 15% to 10% of the property's assessed value, constitutes an unconstitutional retrospective application of the law. See RSA 80:90, I(f); Laws 2016, 37:2; N.H. CONST. pt. I, art. 23. We affirm in part, reverse in part, and remand.

         I. Relevant Facts

         The relevant facts follow. In 2008, the plaintiff inherited residential property in Bedford that, at that time, was assessed at approximately $300, 000. Because the plaintiff failed to pay his real estate taxes in 2008, 2009, and 2010, tax liens were imposed on his property for each of those years. The Town notified the plaintiff before each lien was imposed.

         In April 2011, the Town notified the plaintiff that a tax deed was to be issued. The notice stated that, if the plaintiff failed to pay the amount due, he would "be divested of ownership to [the] property" upon issuance of the tax deed. In May 2011, a tax deed for the property was issued to the Town. The tax deed was recorded on June 8, 2011. The plaintiff continued to reside in the property without paying taxes.

         On June 12, 2013, the plaintiff offered to pay back taxes, but requested that the Town forgive additional charges. In July 2013, the Town rejected the plaintiff's request and decided to sell the property. In December 2013, the Town notified the plaintiff of its July 2013 decision to sell the property and of his right to repurchase it for $90, 442.42. The notice informed the plaintiff that, if he intended to repurchase the property, he was required to provide written notice to the Town within 30 days, with repayment due 15 days thereafter. The plaintiff received that notice in January 2014, but did not act on it.

         In April 2015, the Town again notified the plaintiff of its intent to sell the property and of his right to repurchase it. The Town informed the plaintiff that to repurchase the property, he would be required to pay $49, 791.93 in back taxes, $44, 187.26 as a penalty, and assorted fees. Thereafter, the plaintiff proposed that he purchase the property for only the amount he owed in taxes and that the Town waive the remaining amounts. The Town rejected the plaintiff's proposal.

         The plaintiff, through counsel, twice asked the Town to reconsider its rejection of his proposal. The Town declined to do so. The Town further determined that its April 2015 notice to the plaintiff had been sent in error and was no longer operative. The Town asserted that the plaintiff's right to repurchase the property had terminated because more than three years had passed since the tax deed had been ...


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