786 A.2d 825 (N.H. 2001), 2000-024, Nash Family Inv. Properties v. Town of Hudson

Docket Nº:2000-024.
Citation:786 A.2d 825, 147 N.H. 233
Opinion Judge:Duggan, J.
Party Name:NASH FAMILY INVESTMENT PROPERTIES v. TOWN OF HUDSON. Ballinger Properties and another v. Town of Londonderry.
Attorney:Wenger & Cronin, P.C., of Manchester (John F. Bisson andJohn G. Cronin, on the brief, and Mr. Cronin orally), for the plaintiffs., Grinnell & Bureau, of Londonderry (David R. Connell, on the brief), for defendant Town of Londonderry., Donahue, Tucker & Ciandella, of Exeter (John J. Ratigan orally...
Case Date:November 26, 2001
Court:Supreme Court of New Hampshire
 
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Page 825

786 A.2d 825 (N.H. 2001)

147 N.H. 233

NASH FAMILY INVESTMENT PROPERTIES

v.

TOWN OF HUDSON.

Ballinger Properties and another

v.

Town of Londonderry.

No. 2000-024.

Supreme Court of New Hampshire.

November 26, 2001.

Rehearing Denied Jan. 9, 2002.

Page 826

[147 N.H. 234] Wenger & Cronin, P.C., of Manchester (John F. Bisson andJohn G. Cronin, on the brief, and Mr. Cronin orally), for the plaintiffs.

Grinnell & Bureau, of Londonderry (David R. Connell, on the brief), for defendant Town of Londonderry.

Donahue, Tucker & Ciandella, of Exeter (John J. Ratigan orally), for the defendants.

Gallagher, Callahan & Gartrell, P.A., of Concord (Andrew B. Eills, on the brief), for the Aggregate Manufacturers Assoc. of New Hampshire, as amicus curiae.

DUGGAN, J.

The plaintiffs, owners of property used for commercial excavation and subject to the provisions of the excavation activity tax under RSA chapter 72-B (Supp. 1999), appeal a Superior Court (Hollman, J.) order declaring the excavation activity tax, RSA 72-B:1, III, constitutional. We reverse and remand.

In 1998, pursuant to RSA chapter 72-B, the Towns of Hudson and Londonderry (defendants) assessed taxes against property located within the respective towns and owned by the plaintiffs. Thereafter, the plaintiffs filed declaratory judgment actions in the superior court asserting the excavation activity tax, levied pursuant to RSA 72-B:1, III, violated the State Constitution. By court order and agreement of the parties, the court consolidated the actions, and the cases were argued and submitted upon stipulated facts. After considering the parties' arguments, the trial court concluded the excavation activity tax is constitutional. On appeal, we review the trial court's application of law to the stipulated facts de novo. Tucker v. Merchants Ins. Group, 146 N.H. 168, ----, 769 A.2d 357, 358-59 (2001).

In 1997, the legislature enacted the excavation tax and excavation activity tax, RSA chapter 72-B. See Laws 1997, ch. 219. In 1999, the legislature amended the statute, upon finding "there ha[d] been a great deal of confusion and uncertainty among taxpayers, assessors, and municipalities regarding the applicability of the excavation activity tax [147 N.H. 235] imposed by RSA 72-B, and

Page 827

how it should be implemented." Laws 1999, ch. 301. In amending the statute, the legislature did not seek to impose any new obligations upon taxpayers; rather, it "wishe[d] to clarify" certain provisions relating to the excavation activity tax. See Laws 1999, 301:1. Thus, the amendment did not change the nature of the tax or its application.

The excavation activity tax generally applies to the pit area opened during an active excavation until that area is reclaimed. See RSA 72-B:1, III, IV. The statute authorizes municipalities to exempt the pit area of property with commercial excavation activity...

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