Appeal of Town of Sunapee, 83-530

• Decision Date: 07 March 1985
• Docket Number: No. 83-530,83-530
• Citation: 489 A.2d 153,126 N.H. 214
• Parties: Appeal of TOWN OF SUNAPEE (New Hampshire Board of Tax and Land Appeals).
• Court: New Hampshire Supreme Court

Page 153

489 A.2d 153

126 N.H. 214

Appeal of TOWN OF SUNAPEE (New Hampshire Board of Tax and Land Appeals).

No. 83-530.

Supreme Court of New Hampshire.

March 7, 1985.

Hall, Morse, Gallagher & Anderson, Concord (Charles T. Gallagher, on brief, and G. Wells Anderson, Concord, orally), for plaintiffs.

Sulloway, Hollis & Soden, Concord (Eleanor H. Holmes, Concord, on brief and orally), for defendants.

SOUTER, Justice.

This is an appeal under RSA 541:6 and RSA 76:16-a, V (Supp.1983) from a decision of the New Hampshire Board of Tax and Land Appeals ordering abatement of taxes on two lots, one with a house and one vacant. The town excepts to the order as to the house lot, because the taxpayers never applied to the town's selectmen for abatement of the tax on that lot. The town also excepts to the order generally, on the ground that the taxpayers did not offer sufficient evidence of disproportionate assessment. We reverse the order of abatement on the house lot, but affirm the order on the vacant lot.

In the 1982 tax year the taxpayers owned two adjoining lots in Sunapee. There was a house on one lot; the other was vacant. Each lot carried the assessment set in 1976: $169,590 on the house lot and $17,400 on the vacant one. After the taxpayers learned from the New Hampshire Water Supply and Pollution Control Commission that they could not lawfully subdivide or develop the vacant lot, they applied to the selectmen for an abatement of taxes on that lot, to reflect lower assessments generally placed on parcels that could not be developed. See RSA 76:16. They sought no abatement of taxes on the house lot. The selectmen refused to grant the abatement on the vacant lot.

The taxpayers appealed to the State Board of Tax and Land Appeals under RSA 76:16-a (Supp.1983). Although the notice of appeal referred specifically to the assessment on the vacant lot, it also requested a reduction of the assessment placed on "all" of the taxpayers' property. It did not, however, state that the taxpayers had sought an abatement from the selectmen on the vacant lot alone. The notice contained an indication that a copy was sent to the town.

The board acknowledged receipt of the appeal papers with a form apparently sent in duplicate to the taxpayers and the town. The form did not specifically identify the property subject to the appeal, but did request information from the town, including the assessed value of "each piece of property" that the taxpayers owned. After an evidentiary hearing, the board reduced the assessments on the lots to $142,100 and $14,500, respectively, and ordered abatements accordingly.

In appealing to this court, the town first claims that the board erred in ordering a reduction in assessment and an abatement as to the house lot. We agree. The powers of the board and the rights of taxpayers appearing before the board are entirely statutory and are limited by the terms of the statute. Thayer v. State Tax Comm'n, 113 N.H. 113, 114, 302 A.2d 824, 825 (1973). Under RSA 76:16-a, I (Supp.1983) a taxpayer is authorized to seek relief from the board only "[i]f the selectmen neglect or refuse to ... abate." The subject matter jurisdiction of the board is thus limited to the subject of the selectmen's refusal or neglect. Selectmen can be said to neglect or refuse only what a taxpayer has first requested. Hence, the jurisdiction of the board is limited to the subject of a taxpayer's original request to the selectmen. It is a truly appellate jurisdiction. See McCann v. Silva, 455 F.Supp. 540 (D.N.H.1978). Since the taxpayers did not ask the selectmen to abate taxes on the house lot, the board can order no abatement as to that lot.

The taxpayers seek to avoid this result by arguing that by requesting assessments on each lot of the taxpayers' land, the board put the town on notice that abatements of taxes on all lots would be in issue. On this theory, the town is supposed to have had notice of the scope of the proceeding, as required by RSA 76:16-a, II (Supp.1983), so that it may fairly be subjected to the broader order of abatement.

This argument fails for two reasons. First, it assumes that an administrative tribunal's statutory jurisdiction may somehow be enlarged beyond the terms of the statute. It may not be. Thayer v. State Tax Comm'n supra.

Second, the taxpayers' argument assumes that the board's request to the selectmen for assessments on all lots would, as a matter of fact, put the town on notice that abatements on all lots would be considered. This might be true if the board would have no other reason to consider assessments on lots not originally subject to dispute with the selectmen. This, however, is not so. When a taxpayer challenges an assessment on a given parcel of land, the board must consider assessments on any other of the taxpayer's properties, for a taxpayer is not entitled to an abatement on any given parcel unless the aggregate valuation placed on all of his property is unfavorably disproportionate to the assessment of property generally in the town. Bemis etc. Bag Co. v. Claremont, 98 N.H. 446, 449, 102 A.2d 512, 516 (1954). "Justice does not require the correction of errors of valuation whose joint effect is not injurious to the appellant." Amoskeag Mfg. Co. v. Manchester, 70 N.H. 200, 205, 46 A. 470, 473 (1899) (citations omitted).

When a taxpayer owns two parcels, then, a request for abatement on the first will always require consideration of the assessment on the second. The mere inquiry into the assessment on the second was not, therefore, any indication that an abatement might be granted as to that lot.

The town's further assignment of error is that the record is insufficient to support any finding of disproportionate assessment, even as to the vacant lot. We find, on the contrary, that the record does support the board's conclusion that the two lots were assessed disproportionately to other property in the...