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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Sullivan

Case No. 2022-0592

Citation: New London Hosp. Ass’n v. Town of Newport, 2024 N.H. 33

THE NEW LONDON HOSPITAL ASSOCIATION, INC.

v.

TOWN OF NEWPORT

Argued: October 3, 2023

Opinion Issued: June 26, 2024

Devine, Millimet & Branch, Professional Association, of Manchester

(Matthew R. Johnson on the brief and orally), for the plaintiff.

Drummond Woodsum, of Manchester (Keriann Roman and Matthew 

Serge on the brief and orally), for the defendant.

Preti Flaherty Beliveau & Pachios, PLLP, of Concord (Nathan R. Fennessy

on the brief and orally), for New Hampshire Hospital Association, as amicus

curiae.
2

New Hampshire Municipal Association, of Concord (Stephen C. Buckley

on the joint brief), and Upton & Hatfield, LLP, of Portsmouth (Russell F. Hilliard

on the joint brief), for New Hampshire Municipal Association and Town of 

Bedford, as amici curiae.

HANTZ MARCONI, J. 

[¶1] The plaintiff, The New London Hospital Association, Inc. (NLH), 

appeals a decision of the Superior Court (Tucker, J.) dismissing its appeals 

from denials by the defendant, Town of Newport (Town), of NLH’s applications 

for charitable property tax exemptions for tax years 2015, 2017, and 2018. 

The Town cross-appeals, challenging the trial court’s rulings that NLH satisfied 

the second and third factors for charitable exemption that we articulated in 

ElderTrust of Florida, Inc. v. Town of Epsom, 154 N.H. 693 (2007). We affirm 

the trial court’s rulings that NLH satisfied the second and third ElderTrust

factors. We reverse its ruling that NLH failed to prove that it satisfied the 

fourth ElderTrust factor, and remand.

I. Factual Background

[¶2] The following facts are taken from the trial court’s narrative order 

issued after a six-day bench trial or from the contents of documents in the 

record. NLH is a nonprofit corporation exempt from federal income taxation 

pursuant to section 501(c)(3) of the federal tax code. See 26 U.S.C. § 501(c)(3) 

(2018). It is also a regulated charitable trust registered with the New 

Hampshire Department of Justice Charitable Trusts Unit. NLH’s purpose, as 

stated in its articles of agreement, is as follows:

The Corporation is established exclusively for the charitable, 

scientific and educational purposes herein set forth, subject to the 

provisions of New Hampshire RSA § 292 and the provisions of 

Section 501(c)(3) of the Internal Revenue Code of 1986, as 

amended (the “Code”). The principal purposes of the Corporation 

shall be to operate an acute care hospital and related nursing 

home facility, to provide other facilities, services and products for 

the care of persons afflicted with illness or disabilities, without 

regard to age, race, sex, color, creed or national origin; either 

directly, through subsidiary or affiliated corporations or entities, or 

by contract or joint venture with other individuals or entities; and 

in furtherance thereof to acquire, hold, manage, invest, mortgage 

and dispose of property and funds of whatever character and 

generally to possess and exercise all powers permitted by the 

voluntary corporations under the laws of the State of New 

Hampshire.
3

All activities and functions of the Corporation shall be 

conducted in a manner which is consistent with the requirements 

of Section 501(c)(3) of the Code. Solely in furtherance of those 

purposes that qualify the Corporation as exempt from federal 

income tax pursuant to Section 501(c)(3) of the Code or any 

successor provision, the Corporation is authorized to act in 

furtherance of the best interests of Mary Hitchcock Memorial 

Hospital, a New Hampshire non-profit corporation which is a taxexempt organization under Section 501(c)(3) of the Code, and 

Dartmouth-Hitchcock Clinic, a New Hampshire non-profit 

corporation which is a tax-exempt organization under Section 

501(c)(3) of the Code, and to do everything necessary, suitable, or 

proper for the accomplishment, attainment, or furtherance of, to 

do every other act or thing incidental to, appurtenant to, growing 

out of, or connected with, the purposes, objects, or powers set 

forth in these Articles, whether alone or in association with others; 

provided that nothing herein set forth shall be construed as 

authorizing the Corporation to possess any purpose, object, or 

power, or to do any act or thing forbidden of any organization 

exempt from federal income tax pursuant to Section 501(c)(3) of 

the Code, or any successor provision, which would threaten the 

Corporation’s tax-exempt status. 

[¶3] NLH owns the property in Newport at issue here, on which it 

operates the Newport Health Center (NHC). NHC is classified under federal law 

as a Rural Health Clinic as part of a federal initiative addressing the shortage 

of physicians in rural areas. NHC is the only outpatient treatment center in 

Newport.

[¶4] For a number of years, NLH leased “sub-optimal” space for NHC at 

the property. NLH purchased the property in 2012 and constructed a new 

facility with more space to accommodate additional physicians and serve 

additional patients. 

[¶5] In tax year 2015, NLH applied for a charitable tax exemption for the 

NHC property. The Town denied the exemption and NLH appealed to the 

superior court. See RSA 72:34-a (2012 & Supp. 2023). Subsequent 

applications for tax years 2017 and 2018 were also denied, and those denials 

were appealed to the superior court. The three appeals were thereafter 

consolidated.

[¶6] NLH moved for summary judgment, which the trial court denied. 

The court ruled that “[v]iewing the evidence in the light most favorable to the 

Town, [NLH] established three of the four factors necessary for the exemption 

(the so-called [ElderTrust] factors), but not the fourth.” The Town moved for 

reconsideration, which the court granted in part and denied in part. 
4

Specifically, the court denied the motion as to the first ElderTrust factor, but 

granted it as to the second and third, ruling that, with respect to those factors,

there were issues of material fact to be resolved at trial.

[¶7] Following a bench trial, the court dismissed the appeals. It ruled 

that NLH proved the second ElderTrust factor and that “NLH proved the third 

criterion with respect to the property it occupied directly at [NHC] . . . [but not] 

with respect to the space it leased for storage.” With respect to the fourth 

factor, the court ruled that NLH failed to prove it met that criterion. This 

appeal and cross-appeal followed.

II. Standard of Review 

[¶8] When reviewing a trial court’s decision after a trial on the merits, “we 

uphold the trial court’s factual findings and rulings unless they lack 

evidentiary support or are legally erroneous.” Jesurum v. WBTSCC Ltd. P’ship, 

169 N.H. 469, 476 (2016). “We do not decide whether we would have ruled 

differently than the trial court, but rather, whether a reasonable person could 

have reached the same decision as the trial court based upon the same 

evidence.” Id. “Thus, we defer to the trial court’s judgment on such issues as 

resolving conflicts in the testimony, measuring the credibility of witnesses, and 

determining the weight to be given evidence.” Id. “Nevertheless, we review the 

trial court’s application of the law to the facts de novo.” Id.

III. Analysis 

[¶9] Determination of NLH’s right to an exemption from taxation is 

statutory. Town of Peterborough v. MacDowell Colony, 157 N.H. 1, 5 (2008). 

“The existence and extent of exemptions depends on legislative edict.” Id. 

(quotation omitted). Therefore, “we will overturn the trial court’s decision if we 

find that the court misapprehended or misapplied the law.” Id. (quotation and 

brackets omitted). “We note that the legislative purpose to encourage 

charitable institutions is not to be thwarted by a strained, over-technical and 

unnecessary construction” of the applicable statutes. Id. (quotation and 

brackets omitted).

[¶10] NLH claims exemption under RSA 72:23, V, which applies to:

The buildings, lands and personal property of charitable 

organizations and societies organized, incorporated, or legally 

doing business in this state, owned, used and occupied by them 

directly for the purposes for which they are established, provided 

that none of the income or profits thereof is used for any other 

purpose than the purpose for which they are established.
5

RSA 72:23, V (2012). The term “‘charitable,’ as used to describe a corporation, 

society or other organization” covered by RSA 72:23, V, is defined to mean: 

a corporation, society or organization established and administered 

for the purpose of performing, and obligated, by its charter or 

otherwise, to perform some service of public good or welfare 

advancing the spiritual, physical, intellectual, social or economic 

well-being of the general public or a substantial and indefinite 

segment of the general public that includes residents of the state of 

New Hampshire, with no pecuniary profit or benefit to its officers 

or members, or any restrictions which confine its benefits or 

services to such officers or members, or those of any related 

organization.

RSA 72:23-l (2012). RSA 72:23-l further provides, “The fact that an 

organization’s activities are not conducted for profit shall not in itself be 

sufficient to render the organization ‘charitable’ for purposes of this chapter, 

nor shall the organization’s treatment under the United States Internal 

Revenue Code of 1986, as amended.” Id. Moreover, RSA 72:23-l is expressly 

“not intended to abrogate the meaning of ‘charitable’ under the common law of 

New Hampshire.” Id. NLH bears the burden of establishing entitlement to an 

exemption under RSA 72:23, V. See RSA 72:23-m (2012).

[¶11] In ElderTrust, we distilled the requirements of RSA 72:23, V and 

RSA 72:23-l into a single four-factor test, holding:

[T]he plain language of RSA 72:23, V and RSA 72:23-l requires the 

institution to satisfy each of the following four factors; namely, 

whether: (1) the institution or organization was established and is 

administered for a charitable purpose; (2) an obligation exists to 

perform the organization’s stated purpose to the public rather than 

simply to members of the organization; (3) the land, in addition to 

being owned by the organization, is occupied by it and used 

directly for the stated charitable purposes; and (4) any of the 

organization’s income or profits are used for any purpose other 

than the purpose for which the organization was established. 

Under the fourth factor, the organization’s officers or members 

may not derive any pecuniary profit or benefit.

ElderTrust, 154 N.H. at 697-98. Only the trial court’s rulings on the second, 

third, and fourth factors are challenged in this appeal.

A. Second ElderTrust Factor 

[¶12] In its cross-appeal, the Town argues that the trial court erred in 

finding the second ElderTrust factor satisfied, because: (1) “NLH is not 
6

obligated to operate exclusively for its stated charitable purposes”; (2) NLH 

ceased meeting one of its three stated purposes — operating a nursing home —

notwithstanding a community need; and (3) NLH’s sole member “exercised 

discretionary control over NLH’s operations and its claimed charitable 

purposes.” We address each argument in turn.

[¶13] The second ElderTrust factor requires that an organization is 

“obligated to perform its stated purpose to the public rather than simply to its 

members.” Marist Bros. of N.H. v. Town of Effingham, 171 N.H. 305, 314 

(2018) (quotation, brackets, and ellipsis omitted). “This factor has two 

components: whether there is an actual obligation to perform the stated 

purpose and whether such performance is to the general public or an indefinite 

segment of it.” Id. The Town challenges the trial court’s finding that NLH 

satisfied the first component. In determining whether the first component is 

satisfied, “we look to both [NLH’s] charter or organizational statements and its 

actions taken pursuant to those statements.” Id. at 315. “The public service 

which plaintiff is to render must be obligatory so as to enable the Attorney 

General or other public officer to enforce this right against it if the service is 

not performed.” The Housing Partnership v. Town of Rollinsford, 141 N.H. 239, 

241 (1996) (quotation and brackets omitted). “It follows that if the public 

benefit is limited to that which the plaintiff sees fit to provide at its option or in 

its uncontrolled discretion the requirements of RSA 72:23 V are not satisfied.” 

Id. (quotation omitted).

[¶14] The Town contends that this component is not satisfied, because 

NLH’s articles of agreement do not require it to operate exclusively for its stated 

charitable purpose. The Town contrasts NLH’s articles of agreement with those 

of the taxpayer (ElderTrust) in ElderTrust. In that case, we noted, “By the 

express language of its articles of incorporation, ElderTrust was required to be 

‘operated exclusively for public charitable uses and purposes.’ (Emphasis 

added.) In context, the use of the word ‘exclusively’ places a significant and 

enforceable limitation on ElderTrust’s operation.” ElderTrust, 154 N.H. at 700

(brackets omitted). We ultimately concluded that “ElderTrust’s articles of 

incorporation sufficiently define a charitable purpose such that the purpose 

could be enforced. ElderTrust is not left with an impermissible level of 

discretion.” Id.

[¶15] In the instant case, NLH’s articles of agreement state that “[t]he 

Corporation is established exclusively for the charitable, scientific and 

educational purposes herein set forth.” Citing that statement, the Town argues 

that “NLH’s Articles of Agreement do not state that it is required to operate

exclusively for its stated charitable purpose; instead, NLH’s Articles use the 

word ‘exclusively’ to describe its formation purposes.” The Town further notes 

that “as to its operations, [NLH’s articles of agreement] broadly stat[e] that it 

may ‘exercise all powers permitted by the voluntary corporations under the 

laws of the State of New Hampshire.’” Accordingly, the Town concludes, NLH’s 
7

articles of agreement do not contain an enforceable obligation to perform its 

charitable purpose. We disagree. 

[¶16] Read as a whole, the statement of purpose in NLH’s articles of 

agreement sufficiently obligates it to perform its charitable purpose. That 

statement provides, in part, that “[t]he principal purposes of the Corporation 

shall be to operate an acute care hospital and related nursing home facility, to 

provide other facilities, services and products for the care of persons afflicted 

with illness or disabilities, without regard to age, race, sex, color, creed or 

national origin.” (Emphasis added.) Moreover, that statement of purpose 

explicitly provides that “nothing herein set forth shall be construed as 

authorizing [NLH] to possess any purpose, object, or power, or to do any act or 

thing forbidden of any organization exempt from federal income tax pursuant 

to Section 501(c)(3) of the Code, or any successor provision.” We conclude that 

NLH’s articles of incorporation “sufficiently define a charitable purpose such 

that the purpose could be enforced.” Id. 

[¶17] The Town further argues, however, that despite naming three 

principal purposes in its articles of agreement (operation of an acute care 

hospital, operation of a related nursing home, and provision of facilities, 

services, and products for the care of persons with illness or disabilities), NLH 

ceased to perform one of them. Specifically, in 2016, NLH closed a nursing 

home. The Town cites no authority for the proposition that an entity that lists 

multiple charitable purposes in its organizational documents must at all times 

perform each and every one of them to qualify for a charitable property tax 

exemption, and we have found none. Accordingly, we are not persuaded by the 

Town’s argument.

[¶18] The Town next argues that NLH failed to meet its burden on the 

second ElderTrust factor as a result of its agreement with its sole member, 

Dartmouth-Hitchcock Health (DHH). The Town points to the agreement of 

NLH, DHH, and the Mary Hitchcock Memorial Hospital, and the DartmouthHitchcock Clinic (doing business together as Dartmouth-Hitchcock (D-H)), to 

affiliate in which DHH “retain[ed] . . . [a number of] reserved powers over 

[NLH].” The agreement lists a number of actions that “must be approved by” 

DHH’s board of trustees, including “[t]o reallocate the assets and resources of 

[NLH] and D-H/DHH as appropriate to serve the overall best interests of the DH System.” The Town contends that by these provisions, “DHH has the 

authority to deplete NLH’s assets and resources for the benefit of the rest of the 

Dartmouth Hitchcock system” and that “[t]his alone commands a conclusion 

that NLH failed to meet its burden on the second ElderTrust factor.”

[¶19] Reading the agreement as a whole, we are not persuaded. The 

agreement’s statement of purpose notes that “the Parties desire to further their 

respective charitable missions” and describes how they expect integration to 

accomplish that objective. The agreement further provides that “[t]he parties 
8

have acknowledged the compatibility of their charitable missions, and those of 

their subsidiaries, and no Party will be required to take any action that would

be materially inconsistent with or in contravention of its respective charitable 

mission.” It also provides:

The D-H system at all times will be operated in a manner 

consistent with the charitable missions of the Parties and their 

subsidiaries and none of them will be required to take any action 

pursuant to this Agreement which would jeopardize its tax exempt 

or public charity status under federal income tax law or state law. 

After the Effective Date, the assets of [NLH] shall continue to be 

devoted to the charitable objectives of [NLH] and the needs of the 

communities [NLH] serves, subject to D-HH’s reserved powers, 

which will be exercised in a manner consistent with New 

Hampshire law.

We conclude that the mere existence of DHH’s reserved powers over NLH does 

not prevent NLH from satisfying the second ElderTrust factor. For the 

foregoing reasons, we affirm the trial court’s ruling on that factor.

B. Third ElderTrust Factor 

[¶20] The Town next argues that the trial court erred in finding that NLH 

satisfied the third ElderTrust factor, which required NLH to show that “the 

land, in addition to being owned by the organization, is occupied by it and used 

directly for the stated charitable purposes.” Id. at 698. The Town notes that 

two of NLH’s stated purposes — operation of an acute care hospital and 

operation of a related nursing home — were not performed at NHC. It then 

contends that NLH’s third stated purpose — “to provide other facilities, 

services and products for the care of persons afflicted with illness or 

disabilities, without regard to age, race, sex, color, creed or national origin” —

was not performed at the Newport property, or if performed, any such 

performance was “slight, negligible, or insignificant,” because NHC “provided 

no inpatient services, no surgical services, no specialist services,” but rather 

provided primary care service, women’s health services, and ancillary services. 

See id. at 701 (“When the use is slight, negligible or insignificant, or not in the 

performance of the public purpose, the applicant is not entitled to a tax 

exemption.”). The Town argues that “NHC was set up intentionally to provide 

primary care services with a mechanism in place for referrals for medical 

treatment to NLH in New London or DHH in Hanover.” (Footnote omitted.) It 

then asserts that “NHC was not used for NLH’s stated charitable purposes but 

was used as a money maker for the DH system.”

[¶21] We are not persuaded. We think it obvious that “the care of 

persons afflicted with illness or disabilities” generally begins with diagnosis of 

that illness or disability, and that referral to a specialist for a more definitive 
9

diagnosis and/or treatment is common. We cannot conclude that providing

primary care and women’s health services at NHC does not carry out NLH’s 

third stated purpose.

[¶22] The Town next argues that NLH did not operate NHC with an

underlying motive of generosity, benevolence, or altruism, which, the Town 

contends, is required. NLH counters that the Town misreads the case law and 

that “ElderTrust does not inquire into the subjective motives of the 

organization seeking a charitable tax exemption.” We agree with NLH. 

[¶23] The Town relies on Young Women’s Christian Ass’n v. Portsmouth, 

89 N.H. 40 (1937), and Society of Cincinnati v. Exeter, 92 N.H. 348 (1943). It 

misreads both. In neither case did we require proof of a generous, benevolent, 

or altruistic motive, but rather we presumed such a motive was “inherent in a 

legal charity.” Id. As we stated in Young Women’s Christian Association, “if an 

institution is organized and conducted to perform some service of public good 

or welfare, with no pecuniary profit to its officers or members, and with no 

restrictions which confine benefits to them, its descriptive character as 

charitable under the statute follows.” Young Women’s Christian Ass’n, 89 N.H. 

at 43. The required elements of a charitable institution’s organization and 

conduct noted in Young Women’s Christian Association are now contained 

within the four ElderTrust factors. Having rejected the Town’s challenges to 

the trial court’s ruling on the third ElderTrust factor, we affirm that ruling. 

C. Fourth ElderTrust Factor

[¶24] NLH challenges the trial court’s ruling on the fourth ElderTrust

factor, which inquires whether “any of [NLH’s] income or profits are used for 

any purpose other than the purpose for which [NLH] was established.” 

ElderTrust, 154 N.H. at 698. The trial court found that NLH did not establish 

that it satisfied this factor. The court found: “Circumstantial evidence that 

Dartmouth-Hitchcock received a business benefit from NHC is found in the 

policy on patient referrals, and [its] payment to independent contractors . . . 

was not satisfactorily explained.” 

[¶25] According to the Town, the trial court’s ruling on the fourth factor 

is further supported by “ample evidence presented at trial that called into 

serious question the reasonableness of the salaries paid to NLH officers and 

physicians.” The trial court found, however, that “NLH’s additional evidence on 

the reasonableness of the compensation it paid its CEO and providers is not 

enough to prove it did not use funds from NHC to advance economic interests 

of Dartmouth-Hitchcock.” The parties dispute the meaning of this statement. 

We read it to mean that the court credited NLH’s evidence that it paid 

reasonable compensation to its CEO and providers, but nevertheless found 

that NLH failed to meet the fourth factor on other grounds; namely, the patient 

referral policy and payments to independent contractors. See Shearer v. 
10

Raymond, 174 N.H. 24, 37 (2021) (“The interpretation of a trial court order 

presents a question of law for this court, which we review de novo.”). Thus, we 

agree with NLH that the court “believed NLH’s compensation levels for its 

officers and employees was reasonable” and we decline to address the Town’s 

argument premised on a contrary interpretation of the evidence. 

[¶26] NLH first argues that the trial court erred in determining that DHH

received a business benefit from NHC through its patient referral policy. The 

Town counters that DHH received such a benefit by “realiz[ing] downstream 

revenues due to referrals from patients seen at [NHC].” 

[¶27] The referral policy states as its purpose: “All New London Hospital 

Association, Inc. (NLHA) affiliated providers will refer patients for appropriate 

medical care in an ethical and moral manner while adhering to state and 

federal guidelines.” We interpret this policy to mean that NLH providers will 

refer patients out of NLH when “appropriate medical care” cannot be provided 

at NLH. See Petition of Warden (State v. Roberts), 168 N.H. 9, 18 (2015) (“We 

interpret written documents de novo.”). Given that the policy concerns patients

in need of services, we conclude, as a matter of law, that the practice of 

referring patients to DHH for “appropriate medical care” that NLH cannot

provide, does not confer on DHH a “pecuniary . . . benefit” prohibited under the 

fourth ElderTrust factor. ElderTrust, 154 N.H. at 698.

[¶28] NLH next contends that the trial court erred in finding that it failed 

to satisfy the fourth ElderTrust factor based upon its payments to independent

contractors. It argues that “[t]here is no provision of the statutory scheme or 

any other authority that prohibits a nonprofit charitable organization from 

hiring a for-profit entity to provide services that advance the charitable 

organization’s charitable mission.” The Town counters:

The predominant amount of independent contractor compensation 

that NLH paid each year was paid to entities it is affiliated with, 

such as DHH and New England Alliance for Health. NLH failed to 

show how all these payments were being used in furtherance of 

any charitable purposes downstream, as opposed to benefiting the 

officers and employees of the other entities, for example.

This argument appears to implicate both prongs of the fourth ElderTrust

factor: (1) “[none] of the organization’s income or profits are used for any 

purpose other than the purpose for which the organization was established”; 

and (2) “the organization’s officers or members may not derive any pecuniary 

profit or benefit.” Id. at 698.

[¶29] As regards the first prong, the Town’s argument misses the mark. 

The relevant inquiry is not whether the “downstream” use of those funds by the 

independent contractors was in furtherance of any charitable purposes, but 
11

whether the services NLH purchased from the independent contractors 

furthered NLH’s charitable purposes. Cf. id. (noting, with respect to the 

companies in which certain ElderTrust director(s) held stock, that “ElderTrust

is one client of these two companies, and as such, it pays each company for 

services rendered”).

[¶30] The payments to independent contractors were disclosed on NLH’s 

Form 990 federal tax returns, which required NLH to list the five highestcompensated independent contractors to which NLH paid more than $100,000 

in the reporting period. For the years in question, NLH listed various entities, 

including DHH, the amounts paid to each, and a description of the services for 

which such payments were made, including physician staffing and lab services, 

imaging, and management services. NLH asserts that these services “advanced 

its charitable mission” and that “[t]here was no evidence to the contrary that 

these payments were made for an impermissible expense or for a reason other 

than the reasons identified on NLH’s IRS form 990s.” 

[¶31] Similarly unpersuasive is the Town’s argument that, “unlike the 

evidence in Marist Brothers[,] there was nothing presented to show how all of 

the entities receiving compensation from NLH share the same charitable 

mission.” Because NLH received services in exchange for the monies it paid the 

independent contractors, it need not show that those contractors share NLH’s 

charitable mission.

 

[¶32] With respect to the second prong of the fourth ElderTrust factor, to 

the extent the Town argues that any payments by a charitable taxpayer to its 

member in exchange for goods or services violate the rule that “the 

organization’s officers or members may not derive any pecuniary profit or 

benefit,” id. at 698, Marist Brothers and ElderTrust support a contrary 

conclusion. See Marist Bros., 171 N.H. at 321-24; ElderTrust, 154 N.H. at

706. In examining the taxpayer’s payments to an affiliated entity in Marist 

Brothers, we cited cases from other jurisdictions holding that “similar 

payments for assistance by a parent organization did not preclude a charitable 

tax exemption.” Marist Bros., 171 N.H. at 323. 

[¶33] The Town nevertheless argues that “the burden is on NLH to show 

that those expenses are being used exclusively to further its charitable 

mission” and that it failed to meet that burden because “the trial court could 

not rule out the possibility that some funds were not used for NLH’s claimed 

charitable purposes.” We agree with NLH, however, that it was not required to 

“rule out the possibility” that factor four was not satisfied. Rather, it was 

required to prove its entitlement to a charitable tax exemption by a 

preponderance of the evidence. Nashua Hous. Auth. v. Wilson, 162 N.H. 358, 

361 (2011) (“In a civil action the burden of proof is generally on the plaintiff to 

establish its case by a preponderance of the evidence.” (quotation omitted)). 
12

[¶34] For the foregoing reasons, we affirm the trial court’s decision with 

respect to the second and third ElderTrust factors. We reverse its decision with 

respect to the fourth factor, and remand for proceedings not inconsistent with 

this decision.

Affirmed in part; reversed

in part; and remanded.

MACDONALD, C.J., and DONOVAN, J., concurred.