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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Merrimack

No. 2013-221

NORTHERN NEW ENGLAND TELEPHONE OPERATIONS, LLC D/B/A 

FAIRPOINT COMMUNICATIONS - NNE

v.

CITY OF CONCORD

Argued: February 20, 2014

Opinion Issued: August 29, 2014

Devine, Millimet & Branch, PA, of Manchester (Daniel E. Will and Joshua 

M. Wyatt on the brief, and Mr. Will orally), for the petitioner.

City Solicitor's Office, of Concord (James W. Kennedy, city solicitor, and 

Danielle L. Pacik, deputy city solicitor, on the brief, and Mr. Kennedy orally), 

for the respondent.

HICKS, J. The respondent, the City of Concord (City), appeals rulings by 

the Superior Court (McNamara, J.) granting summary judgment in favor of the 

petitioner, Northern New England Telephone Operations, LLC d/b/a FairPoint 

Communications - NNE (FairPoint), in its equal protection challenge to the 

City’s taxation of FairPoint’s use and occupation of public property, and

striking the tax levied against FairPoint. We vacate and remand.
2

The trial court found, or the record supports, the following facts. In 

order to provide telecommunications services throughout the City, FairPoint 

maintains poles, wires, cables, and other equipment within the City’s public 

rights-of-way. For the 2000 through 2010 tax years, the City imposed a real 

estate tax upon FairPoint for its use and occupation of this public property (the 

right-of-way tax).1 See RSA 72:6 (1991); RSA 72:23, I (Supp. 2000) (amended 

2002, 2003, 2006, 2011).

Prior to 2010, the City did not impose a right-of-way tax upon Comcast,

which utilizes the City’s rights-of-way to provide cable services pursuant to a 

franchise agreement. The City began imposing the tax upon Comcast in 2010 

in response to a ruling by the New Hampshire Board of Tax and Land Appeals 

(BTLA) that, notwithstanding the franchise agreement, Comcast was subject to 

the tax. Prior to 2008, the City did not impose the same tax upon Public 

Service of New Hampshire (PSNH) because it was unaware that PSNH had used 

and occupied the rights-of-way. Similarly, the City did not tax certain other 

users of its rights-of-way for their use and occupation of public property during

the relevant tax years because it was not aware of their usage.

FairPoint brought an action challenging, in relevant part, the 

constitutionality of the City’s right-of-way tax assessments against it for the 

2000 through 2010 tax years. The parties filed cross-motions for summary 

judgment. In granting FairPoint’s motion, and denying the City’s motion, the 

trial court ruled, as an initial matter, that “intentionality” was not a required 

element of FairPoint’s equal protection claim. Next, having implicitly found 

that the City had selectively taxed FairPoint, the court reasoned: 

Concord’s decision not to tax others similarly situated was not an 

exercise of judgment; rather, it was due to a misunderstanding of 

the law with respect to Comcast, and a misunderstanding of the 

facts that other entities, such as PSNH and others[,] . . . were 

using Concord’s right-of-way. There can be no serious argument 

that the City of Concord had a rational governmental interest in 

deciding not to tax entities based on its misunderstanding of the 

law or its lack of diligence in investigating the facts. Concord 

could therefore not have had a “rational reason for selectively 

imposing [a] tax upon” FairPoint. 

(Quoting Verizon New England v. City of Rochester, 156 N.H. 624, 631 (2007).) 

The court concluded that “the City violated FairPoint’s right to the equal 

protection of the laws under the State and Federal Constitutions,” and that 

 

1 At oral argument, FairPoint conceded that the City did not tax it for the 1999 tax year. We 

therefore consider only the 2000 through 2010 tax years, and deem FairPoint’s arguments 

regarding the 1999 tax year waived.
3

“the appropriate remedy is to strike [the] illegal tax.” The court denied the 

City’s subsequent motion to reconsider, and this appeal followed.

When reviewing a trial court’s grant of summary judgment, we 

consider the affidavits and other evidence, and all inferences 

properly drawn from them, in the light most favorable to the nonmoving party. If our review of the evidence does not reveal any 

genuine issue of material fact, and if the moving party is entitled to 

judgment as a matter of law, we will affirm the trial court’s 

decision. We review the trial court’s application of the law to the 

facts de novo.

Anderson v. Motorsports Holdings, 155 N.H. 491, 494 (2007) (quotation 

omitted). 

On appeal, the City argues that the trial court erred in granting summary 

judgment in favor of FairPoint, and in striking the right-of-way tax levied 

against FairPoint.

2 Specifically, it argues that it neither “selectively impose[d]” 

the right-of-way tax upon FairPoint, nor “single[d] FairPoint out for taxation,” 

for the relevant tax years. It contends that, “[t]o the extent that [it] failed to tax 

some entities that occupied the right-of-way” while taxing FairPoint, any such 

difference in treatment resulted from errors of judgment, which “do not show 

that [it] engaged in [an] arbitrary or otherwise intentional and deliberate 

scheme to tax FairPoint and not others similarly situated.” Because 

“FairPoint’s equal protection claim is without merit,” the City argues, “FairPoint 

must be ordered to pay its assessed taxes owed to the City.”

FairPoint argues that we “should affirm each of the trial court’s rulings.” 

Specifically, it argues that, for the relevant tax years, “[the City] committed the 

very equal protection violation adjudicated in prior cases by selectively taxing 

FairPoint, but not other entities that used and occupied [the City’s] rights-ofway . . . in the same manner as FairPoint.” It contends that, following our 

decision in Verizon New England v. City of Rochester, 156 N.H. 624 (Rochester 

III), “[i]t is now beyond dispute that a municipality’s failure to assess a right-ofway tax against all entities that use and occupy the public rights-of-way 

violates the State Constitution’s guarantee of equal protection.” It further 

argues that discriminatory intent is not a required element for an equal 

protection claim based upon selective taxation, and that “[the City] cannot 

point to any New Hampshire authority on analogous facts that requires intent 

to discriminate . . . to establish an equal protection violation.” 

 

2 To the extent the City also argues that the court erred in denying its motion for summary 

judgment, we deem that argument waived because the City failed to raise it in its notice of appeal. 

See Granite State Mgmt. & Res. v. City of Concord, 165 N.H. 277, 294 (2013).
4

In the alternative, it argues that the City “intentionally discriminated 

against FairPoint” by: (1) taxing only FairPoint for the 2000 tax year; (2) 

“deliberately cho[osing] not to assess a right of way tax against Comcast, 

meaning [the City] intended not to tax Comcast”; and (3) “fail[ing] to tax other 

right of way users, such as PSNH and [other] [a]ttachees, deliberately or 

through deliberate ignorance.” 

We first address FairPoint’s equal protection claim under the State 

Constitution and rely upon federal law only to aid our analysis. State v. Ball, 

124 N.H. 226, 231-33 (1983). Because constitutional challenges to the 

application of a tax raise questions of law, we review the trial court’s decision 

de novo. Rochester III, 156 N.H. at 630.

We conclude that FairPoint’s equal protection claim, like the one 

analyzed in Rochester III, is one of “selective enforcement,” and not an equal 

protection challenge to the tax scheme itself for “impermissibly establish[ing] 

classifications and, therefore, treat[ing] similarly situated individuals in a 

different manner.” State v. Hofland, 151 N.H. 322, 325, 326 (2004) (quotations 

omitted). Although it employs the term “classification,” FairPoint challenges 

what it calls the City’s “selective tax treatment,” not the tax scheme itself. In 

any event, FairPoint has not shown that the tax “impermissibly established 

classifications and, therefore, treated similarly situated individuals in a 

different manner.” Id. at 326 (quotation omitted). Accordingly, we analyze 

FairPoint’s claim of “selective tax treatment” under the rational basis test set 

forth in Rochester III. See Rochester III, 156 N.H. at 630-31; see also Hofland, 

151 N.H. at 325-26 (noting selective enforcement and classification as 

alternative means of establishing equal protection violation).

“The equal protection clause protects an entity from state action which 

selects it out for discriminatory treatment by subjecting it to taxes not imposed 

on others of the same class.” Rochester III, 156 N.H. at 630 (quotation and 

brackets omitted). “[T]o determine whether [FairPoint’s] right to equal 

protection is being violated, we must apply the rational basis test.” Id. 

(quotation omitted). Under this test, we ask whether the City’s taxation of 

FairPoint constituted selective taxation and, if so, whether the selection is 

rationally related to a legitimate state interest. See id. 

To show “selective taxation,” id., FairPoint “must show that the selective 

enforcement [of the tax] was a conscious, intentional discrimination,”

Anderson, 155 N.H. at 499 (emphasis added). Accordingly, in order to succeed 

on its claim of selective tax treatment, FairPoint must demonstrate “something 

more” than “mere errors of judgment by officials,” Sunday Lake Iron Co. v. 

Wakefield, 247 U.S. 350, 353 (1918), or “that the enforcement was merely 

historically lax,” Anderson, 155 N.H. at 499. In addition, FairPoint “has the 

burden to prove that the selection is arbitrary or without some reasonable 

justification and . . . to negative every conceivable basis which might support 
5

the selection, whether or not the basis has a foundation in the record.” 

Rochester III, 156 N.H. at 631 (quotations, citation, and brackets omitted).

As an initial matter, we note that FairPoint misconstrues our rational 

basis test, as articulated in Rochester III — a case that it insists “control[s]” 

this appeal. In Rochester III, we analyzed whether the City of Rochester’s 

“taxation of only Verizon for its use and occupancy of public property,” id. at 

627, constituted “selective taxation . . . [not] rationally related to a legitimate 

state interest,” id. at 630. Our initial determination in Rochester III — that 

Rochester “[was] selectively applying RSA 72:23, I, against Verizon,” id. at 631

— necessarily followed from Rochester’s failure to contest that it had “singled 

Verizon out” for taxation, id. at 629 (quotation omitted) — an allegation that, by 

its terms, implied a conscious decision to treat Verizon differently (i.e., “a 

conscious, intentional discrimination,” Anderson, 155 N.H. at 499). Next, 

because “[Rochester] offer[ed], the record reveal[ed], and we [could] conceive of, 

no rational reason for selectively imposing this tax upon Verizon,” we 

concluded that Rochester’s “selective application” of the tax “[was] 

discriminatory and violat[ed] our Equal Protection Clause.” Rochester III, 156 

N.H. at 631.

FairPoint argues that, following Rochester III, “a municipality’s failure to 

assess a right-of-way tax against all entities that use and occupy the public 

rights-of-way violates the State Constitution’s guarantee of equal protection.” 

(Emphasis added.) This argument overlooks the fact that, in order for us to 

rule that an entity has been “select[ed] . . . out for discriminatory treatment,” 

id. at 630 (quotation omitted), the selection itself must be intentional. See

Anderson, 155 N.H. at 499. Here, unlike in Rochester III, the City does not 

concede that it singled out FairPoint for taxation. Because FairPoint alleges 

that the City’s enforcement of the right-of-way tax constitutes selective tax 

treatment, FairPoint “must show more than that the enforcement was merely 

historically lax.” Id. “It is also clear that mere errors of judgment by officials 

will not support a claim of discrimination.” Sunday Lake Iron Co., 247 U.S. at 

353. “Instead, [FairPoint] must show that the selective enforcement was a 

conscious, intentional discrimination.” Anderson, 155 N.H. at 499 (emphasis 

added); see also Sunday Lake Iron Co., 247 U.S. at 353.

FairPoint argues, to the contrary, that discriminatory intent is not a 

required element of its equal protection claim. It contends that an erroneous 

failure to tax one or more entities necessarily results in selective enforcement, 

and that such selection, because it was based merely upon an error, is 

arbitrary (i.e., without rational basis). To follow FairPoint’s reasoning, an 

erroneous failure to tax even one entity constitutes selective taxation without a 

rational basis — and thus forms the basis for an equal protection claim — for 

every other similarly situated, taxed entity. FairPoint’s counsel defended this 

hypothetical at oral argument, by insisting that, if ninety-nine out of 100 

similarly situated homeowners were assessed a real estate tax, but one 
6

homeowner was not taxed due to an error, each of the ninety-nine taxed 

homeowners would have a valid equal protection claim. We do not agree that 

such errors in taxation, without intentional selection, violate the equal 

protection rights of taxpayers. Cf. Appeal of Hardy, 154 N.H. 805, 814 (2007) 

(“To accept the [respondent’s] argument would lead to absurd results.”).

In the alternative, FairPoint argues that, even if it were required to 

demonstrate discriminatory intent to succeed on its equal protection claim, 

“the undisputed facts before the trial court demonstrated that [the City] 

intentionally discriminated against FairPoint.” Because it ruled, erroneously, 

that FairPoint need not demonstrate discriminatory intent, the trial court did 

not explicitly address whether the City intentionally discriminated against 

FairPoint, and we decline to consider the issue in the first instance. 

Accordingly, we leave the issue to the trial court to address on remand. See

State v. Pepin, 159 N.H. 310, 313 (2009).

Thus, because the trial court applied an erroneous legal standard in 

ruling that the City selectively imposed the tax upon FairPoint,3 cf. Rochester 

III, 156 N.H. at 631, we vacate the trial court’s rulings (1) granting summary 

judgment in favor of FairPoint and (2) striking the right-of-way tax imposed 

upon FairPoint, and remand for further proceedings consistent with this 

opinion.

The Federal Constitution offers FairPoint no greater protection than does 

the State Constitution under these circumstances. See Allegheny Pittsburgh 

Coal v. Webster County, 488 U.S. 336, 345-46 (1989) (“The equal protection 

clause protects the individual from state action which selects him out for 

discriminatory treatment by subjecting him to taxes not imposed on others of 

the same class. We have no doubt that petitioners have suffered from such 

intentional systematic undervaluation by state officials of comparable property 

. . . .” (emphasis added) (quotations, citation, and ellipsis omitted)); Rochester 

III, 156 N.H. at 630-31. Accordingly, we reach the same result under the 

Federal Constitution as we do under the State Constitution.

 

Vacated and remanded.

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

 

3 After implicitly finding that the City had selectively taxed FairPoint, the trial court proceeded to 

the second step of the rational basis test. The court concluded that “[t]here can be no serious 

argument that the City of Concord had a rational governmental interest in deciding not to tax 

entities based on its misunderstanding of the law or its lack of diligence in investigating the facts.” 

Because we hold that its implicit finding of selective taxation was in error, we need not address 

the court’s explicit finding that there was no rational basis for the selection. In addition, we need 

not address the parties’ arguments regarding the appropriate remedy for an equal protection 

violation.