Argued: September 14, 2017
Law Office, PLLC, of Concord (John F. Hayes on the brief and
orally), for the plaintiff.
& Hatfield, LLP, of Concord (Barton L. Mayer and Michael
P. Courtney on the brief, and Mr. Mayer orally), for the
Margaret M.L. Byrnes and Stephen C. Buckley, of Concord, for
New Hampshire Municipal Association, by brief, as amicus
Beaumont & Campbell, Prof. Ass'n., of Salem (Bernard
H. Campbell on the brief), for New Hampshire Tax Collectors
Association, as amicus curiae.
Hampshire Legal Assistance, of Claremont (Ruth Heintz and
Bennett B. Mortell on the brief), for Kathryn and Zachary
Triano, as amici curiae.
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.
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
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
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
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.
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, 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