New Eng. Tel. & Tel. Co. v. City of Rochester, 97–647.
| Court | Supreme Court of New Hampshire |
| Citation | 144 N.H. 118,740 A.2d 135 |
| Decision Date | 06 August 1999 |
| Docket Number | No. 97–647.,97–647. |
| Parties | NEW ENGLAND TELEPHONE AND TELEGRAPH COMPANY v. CITY OF ROCHESTER. |
144 N.H. 118
740 A.2d 135
NEW ENGLAND TELEPHONE AND TELEGRAPH COMPANY
v.
CITY OF ROCHESTER.
No. 97–647.
Supreme Court of New Hampshire.
Aug. 6, 1999.
Rehearing Denied Dec. 1, 1999.
McLane, Graf, Raulerson & Middleton, P.A., of Manchester (Jack B. Middleton and Scott H. Harris on the brief, and Mr. Middleton orally), for the plaintiff.
Jones, Wensley, Wirth & Azarian, of Rochester (Danford J. Wensley on the brief and orally), for the defendant.
HORTON, J.
The defendant, City of Rochester, appeals a decision of the Superior Court (Fitzgerald , J.) granting plaintiff New England Telephone and Telegraph Company's motion for summary judgment. We reverse and remand.
The plaintiff provides telecommunications services to the residents of the city of Rochester. The defendant issued the plaintiff licenses for the location of "poles, wires, cables and other similar equipment" on city-maintained highways. See RSA 231:161, I(b), IV (1993). Pursuant to RSA 231:163 (1993), which permits license alterations "whenever the public good requires," the Rochester City Manager and Commissioner of Public Works filed a petition with the city council in March 1996 to amend the plaintiff's pole licenses to require the plaintiff to pay property taxes.
The proposed license amendment provided that "[i]n accordance with ... RSA 72:23, I(b) this license is granted to the
licensee(s) subject to the condition that the licensee(s) ... shall pay[ ] all properly assessed real and personal property taxes," and "[f]ailure of the licensee(s) to pay duly assessed personal and real taxes when due shall be cause to terminate this license." The amendment further provided that "in accordance with the requirements of RSA 72:23, I(b), the licensee(s) ... shall be obligated to pay real and personal property taxes on structures or improvements added ... pursuant to this license." RSA 72:23, I(b) (Supp.1998) states:
All leases and other agreements, the terms of which provide for the use or occupation by others of real or personal property owned by the state or a city, town, school district, or village district, entered into after July 1, 1979, shall provide for the payment of properly assessed real and personal property taxes by the party using or occupying said property no later than the due date. All such leases and agreements shall include a provision that "failure of the lessee to pay the duly assessed personal and real estate taxes when due shall be cause to terminate said lease or agreement by the lessor." All such leases and agreements entered into on or after January 1, 1994, shall clearly state the lessee's obligations regarding the payment of both current and potential real and personal property taxes, and shall also state whether the lessee has an obligation to pay real and personal property taxes on structures or improvements added by the lessee.
In August 1996, the mayor and city council granted the defendant's petition after concluding that the public good required the
licenses to be amended. The plaintiff appealed the decision to superior court, see RSA 231:166 (1993), and moved for summary judgment. The court held that (1) the plaintiff's licenses were not "leases [or] other agreements" within the meaning of RSA 72:23, I(b), and (2) the public good did not require the defendant to amend the plaintiff's licenses. The court granted the plaintiff's motion for summary judgment. This appeal followed.
"In reviewing a grant of summary judgment, we look at the affidavits and other evidence, and all inferences properly drawn therefrom, in the light most favorable to the non-moving party." Del Norte, Inc. v. Provencher, 142 N.H. 535, 537, 703 A.2d 890, 892 (1997). We will affirm the grant of summary judgment if the evidence reveals no genuine issue of material fact,...
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