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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Hillsborough

- southern judicial district

No. 2014

- 428

NASHUA COLISEUM, LLC

v.

CITY OF NASHUA

Argued: March 31, 2015 Opinion Issued: June 5, 2015

Wadleigh, Starr & Peters, PLLC , of Manchester ( Michael J. Tierney on the

memorandum of law and orally), for the petitioner

.

Sassoon & Cymrot, LLP , of Boston, Massachusetts ( Anthony M.

Ambriano on the brief and orally), for the respondent

.

LYNN , J. The respondent , the City of Nashua (City ) , appeals an order of the Superior Court ( Colburn , J.) ruling that it could properly consider a tax
abatement for the 2012 tax year for the petitioner taxpayer

, Nashua Coliseum, LLC (Coliseum ). We reverse

.

The following facts were found by the trial court or are otherwise

un dispute d

. Coliseum is the owner of a shoppi ng plaza

. The City assessed the plaza ’s value at $7,659,2 00 for the 2011 tax year. Coliseum timely applied for

an abatement of the 2011 tax, which the City denied. Coliseum appealed the2

City’s denial to the superior court

. See RSA 76:17 (2012). While the 2011 tax

abatement appeal was pending, the City issued an assessment and corresponding tax invoice for the plaza for the 2012 tax year

. Coliseum did not file an application with the City for an abatement of the 2012 taxes by the

March 1, 2013 deadline

. See RSA 76:16 , I(b) (Supp. 2014). O n June 6, 2013, the parties executed a settlement agreement regarding the 2011 taxes. The agreement states, in pertinent part :

The parties agree that this abatement is offered and accepted as a

settlement of a disputed claim. Neither the fact nor the amount of the abatement shall be admissible in evidence in any other abatement proceedings concerning this property. Without limiting the generality of the foregoing, the abated value agreed to by the parties shal l not be deemed to be the “correct assessment value” for purposes of RSA 76:17

- c, and shall have no effect on assessments for subsequent tax years. Subject only to the foregoing limitation, nothing herein shall preclude the Taxpayer from pursuing abatemen t proceedings for tax year 2012.

Subsequently, Coliseum filed a motion in limine with the superior court,
in which it sought a declaration that even though the parties had settl ed the

tax abatement appeal for 2011

, the 2012 tax abatement was properly befo re the court

. The court granted Coliseum’s motion and denied the City’s subsequent motion for reconsideration.

T he parties later entered into an agreement for judgment regarding the

2012 tax year. This agreement preserved the City’s right to appeal the court’s

ru ling that it could address the 2012 tax year notwithstanding that Coliseum did not file an abatement request w ith the City for that year, but resolved the

amount of the abatement to which Coliseum was entitled if the court’s decision was upheld. Th e court approved the agreement, and th is appeal followed.

On appeal, the parties propose contrary interpretations of RSA 76:17

- c, II (2012)

, the statutory provision that addresses the effect of a successful abatement appeal on subsequent ly ass essed taxes. The City argues that

, under the plain language of the statute , Coliseum had not satisfied all of the prerequisites for the statute to apply. The City further argues that the statute is inapplicable because of the parties ’ settlement agreement , wh ich states that

the abated value would not be deemed to be the correct assessment value for purposes of the statute. As a threshold matter, Coliseum argues that the City’s appeal should be dismissed because it did not provide a transcript of the hearing o n the motion in limine

. On the merits

, Coliseum argues that the court correctly determi ned that it could properly address the 2012 tax year

under RSA 76:17

- c , II because the only statutory prerequisite

– that the 2012

taxes were assessed while the 2011 tax abateme nt was pending before the3

court

– was met. Further, Coliseum c laims that the settlement a greement

con templated that the court c ould address the 2012 tax year

.

We first address Coliseum’s argument that the City’ s appeal should be dismissed because it failed to provide a transcript of th e hearing on the motion

in limine

. See Sup. Ct. R. 13(2). This argument fails because the superior

court’s decision was not based up on the resolution of any factual issues . On the contrary, the relevant facts were undisputed, and the court’s decision was entirely based up on its construction of the statute. Thus , a transcript is not necessary for us to decide the abatement issue in this case. We

, accordingly

, reject Coliseum’s argument

.

To resolve the remaining issue, we must engage in statutory interpretation. “In matters of statutory interpretation, we are the final arbiter of the intent of the legislature as expressed in the words of the statute

considered as a whole.” Appeal of Local Gov’t Ctr. , 165 N.H. 790, 804 (2014). “We first look to the language of the statute itself, and, if possible, construe that language according to its plain and ordinary meaning.” Id . “We interpret legislative intent from the statute as written and will not consider what the legislature might have said or add language that the legislature did not see fit

to include.” Id . “ W e construe all parts of a statute together to effectuate its overall purpose and avoid an absurd or unjust result.” Id . “Moreover, we do not consider words and phrases in isolation, but rather within the context of

the statute as a whole.” Id . “This enables us to better discern the legislature’s intent and to interpret statutory language in light of the policy or purpose sought to be advanced by the statutory scheme.” Id

.

RSA 76:17

- c , II provides :

If, while an appeal pursuant to RSA 76:16

- a or 76:17 is pending, subsequent taxes are assessed using an assessment value later found to be incorrect by the board of tax and land appeal s or the superior court, the selectmen or assessors shall abate such subsequent taxes, using the correct assessm ent value as found by the board or the court, even if no abatement request or appeal has ever been filed with respect to such subsequent taxes.

The C ity contends that , under a plain reading of the statute, a finding by the superior court that the 2011 tax assessment was incorrect is a prerequisite to the application of the statute. B ecause the settlemen t agreement resolved the parties’ dispute as to the 2011 tax without the need for the court to make a finding as to the correctness of the City’s assessment for that year

, the City argues that the statutory prerequ isite was not met . It therefore contends that

the court could not address the 2012 tax year in the absence of a timely abatement request under RSA 76:16

, I(b), which Coliseum concedes it never

filed. Coliseum argues that it complied with the statute, which it interprets as4

providing “that one need not file a new abatement application e ach year while an abatement appeal is pending” before the court. It does not specifically acknowledge or address the statutory language regarding a court finding of an

incorrect assessment. In addition, Col iseum contends that the language of the

settleme nt agreement allowed it to pursue abatement proceedings for the 2012
tax year.

Based upon a plain reading of the statutory language, w e agree with the City that the statute requires the superior court to find that the assessment

value was incorrect in order for the taxpayer to be excused from complying with the filing deadlin es otherwise applicable to tax abatement requests. See RSA

76:16 , I(b)

. The protection offered to taxpayers under RSA 76:17

- c , II is

na rrow: taxpayers are protected from the need to exhaust administrative

remedies for subsequent tax years only i f the court later deter mines that the assessment value for the year before the court was incorrect. Here, the court never made a finding that the 2011 assessment value was incorrect

. Moreover

, t he settlement agreement, by its explicit terms, provides that the “abated value agreed to by the parties shall not be deemed to be the ‘correct assessment value’ for purposes of RS A 76:17

- c.” In this case, then, because the court did

not find that the 2011 valuation was incorrect and the settlement agreement precluded such a necessary finding by the court , the statute does not apply. 1 Thus, inasmuch as Colis eum had not properly filed an abatement requ est for the 2012 tax year within the requisite tim e period, the 2012 taxes were not properly before the superior court.

Coliseum urges us to interpret RSA 76:17

- c, II as providi ng more sweeping protection than the language affords by ignoring the phrase “ later

found to be incorrect .” U nder its reading, th e simple fact that a subsequent

assessment is issued while an appeal for an earlier tax year is pending before

the court alone preserves the court’s author ity to review the subsequent

assessment

, notwiths tanding the taxpayer’s failure to exhaust its

administrative remedies under RSA 76:16 . However, such a selective reading does not comport with our standard of statutory construction : we read all parts of a statute together to effectuate its overall purpos e, rather than reading only

isolated words or phrases. 2 See Appeal of Local Gov’t Ctr

. , 165 N.H. at 804.

1 In light of the facts of this case, we need not decide whether an assessment value contained in a settlement agreement approve d by the court could constitute the “correct assessment value as found by

. . . the court ” for purposes of RSA 76:17

- c, II.

2 To the extent that Coliseum argue s that the statute is not clear regarding th e effect of settlement

on the exhaustion requirements of RSA 76:16 for subsequent tax years, we are not persuaded. Even if we were to assume, however, that such ambiguity existed in the language of RSA 76:17

- c , II, the legislative history clearly supports our interpr etation of the statute . The Statement of Intent

for House Bill 1405 ( codified at RSA 76:17

- c ) states that “[t]he purpose of the bill is to eliminate a necessity for a property owner to file a se cond or subsequent appeal if [the court] has not acted on an original appeal before a subsequent tax bill is issued.” H. Comm. on Mun. and Cnty. Gov’t

, Relative to Appeal of T ax Assessments to the Board of T ax and Land Appeals and the Superior

Court , HB 1405, 1992 Sess. ( 1992). Critically, it goes on to state that “[t]he amendment allows5

In its written filings with this court, Coliseum also appears to argue that

, regardless of the terms of RSA 76:17

- c, II, the settlement agreement was intended to preserve its right to pursue its challenge to the 2012 assessment before the superior court . Specifically, although conceding that the agreement precludes it from relying up on the agreed

- upon 2011 valuation as the “correct”

v alue for 2012, Coliseum asserts that the last sentence of the agreement

– which states that “nothing herein shall preclude the Taxpayer from pursuing abatement proceedings for tax year 2012”

– per mits it to pursue its challenge to

the 2012 asse ssment despite the fact that it did not file an abatement for that year. W e need not determine, however, whether the last sentence of the settlement agreemen t could be viewed in this manner, i.e. , as, in effect, a waiver by the City of the provisions of R SA 76:17

- c , II

. A t oral argument, the City’s counsel disputed that this was the intent of the concluding sentence

, and, in response to the court’s questions, Coliseum’s counsel acknowledged

that the last sentence of the agreement was merely intended to preserve Coliseum’ s ability to argue that the 2011 settlement did not preclude the

a pplicability of RSA 76:17

- c, II

, and that it can not be construed as a purported 3 waiver by the City of its right to seek dismissa l based up on the City’s contrary interpreta tion of that statute. Under these circumstances, we conclude that the agreement cannot be interpreted as a waiver by the City of

the relevant statutory requirements

.

For the reasons stated above, we reverse the order of the trial court

.

Reversed

.

DALIANIS, C.J., and HICKS, CONBOY, and BASSETT, JJ., concurred.

the Board or the court to retain jurisdiction to be sure abatements, if granted , take place.” Id

. (emphasis added).

3 Were the agreement to be construed in this fashion, we would then be required to decide whether the provisions of RSA 76:16 and RSA 76:17

- c , II can be waived by agreement or whether they are jurisdictional, and

, therefore, cannot be waived. Because of the clarification of Coliseum’s position at oral argument, we need not address this issue.