John Morris & a. v. Town of Dublin

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2016-0416, John Morris & a. v. Town of Dublin,
the court on April 12, 2017, issued the following order:

Having considered the briefs and record submitted on appeal, we
conclude that oral argument is unnecessary in this case. See Sup. Ct. R. 18(1).
We affirm.

The respondent, the Town of Dublin (town), appeals the order of the
Superior Court (Kissinger, J.), following a two-day bench trial and a view,
granting, in part, the petition for tax abatement filed by John Morris and Joan
Griffin (petitioners). The town argues that the trial court erred in: (1) ruling
that the petitioners met their burden of proof to show that they were entitled to
a tax abatement; (2) determining the fair market value of the property without
expert testimony from the petitioners; and (3) abating the petitioners’ taxes,
when their case consisted of a challenge to the assessment methodology, rather
than a claim of disproportionality.

The town first argues that the trial court erred in abating the petitioners’
taxes because they failed to meet their burden of proving the fair market value
of their property. To succeed on their tax abatement claim, the petitioners had
the burden of proving by a preponderance of the evidence that they were
paying more than their proportional share of taxes. Porter v. Town of
Sanbornton, 150 N.H. 363, 367 (2003). In abatement proceedings, where the
issue is whether the taxpayers are paying more than their share of the common
tax burden, an abatement is granted on the premise that the sum assessed
was disproportionately higher in relation to the property’s true value than was
the case as to other property in the town. LSP Assoc. v. Town of Gilford, 142
N.H. 369, 374 (1997).

The trial court found that the petitioners proved that their property was
assessed at a higher percentage of fair market value than other property in the
town. Although the court disagreed with the petitioners’ claim that the fair
market value of their property in 2014 was $390,500, this does not mean that
the petitioners failed to meet their burden of proof. In abatement proceedings,
the superior court is authorized to decide whether a taxpayer is entitled to an
abatement “and, if so, in what amount.” LSP Assoc., 142 N.H. at 374; see
RSA 76:17 (Supp. 2016) (court “shall make such order . . . as justice requires”).
The town taxed the petitioners’ property in 2014 based upon its finding that
the fair market value of the property was $653,000. The court concluded that
the fair market value of the property was $459,980.24.
 The town argues that the trial court’s determination of fair market value
is unsupported by the evidence because the petitioners failed to provide expert
testimony. We have held that a property owner may testify as to the value of
his own property. See, e.g., Simpson v. Calivas, 139 N.H. 1, 14 (1994).
Moreover, although the town provided expert testimony, it was within the trial
court’s discretion to accept or reject the expert’s testimony, in whole or in part.
LLK Trust v. Town of Wolfeboro, 159 N.H. 734, 740 (2010). Determination of
fair market value is an issue of fact, and we will not disturb a finding by a trial
court unless it is clearly erroneous or unsupported by the evidence. Society
Hill at Merrimack Condo. Assoc. v. Town of Merrimack, 139 N.H. 253, 255
(1994). “The findings of the trial court are within its sound discretion,
particularly when a view has been taken.” Sleeper v. Hoban Family P'ship, 157
N.H. 530, 537 (2008) (quotation omitted).

The petitioners’ property is located on Dublin Lake. The record shows
that the town assessed the value of lakefront properties by assigning to each
property a “waterfront condition factor” that measured the desirability of the
property’s waterfront. The petitioners’ property formerly consisted of three
contiguous lots, including a small, waterfront lot. For the 2013 tax year, the
town assigned a waterfront condition factor of 50 to the waterfront lot. In
2013, the petitioners merged their three lots into a single lot, and for the 2014
tax year, the town assigned a waterfront condition factor of 225 to the merged
lot.

After conducting a view, the court found that the waterfront condition
factor assigned to the petitioners’ merged lot was too high. The court
concluded that the petitioners’ property “does not have anywhere close to as
desirable a waterfront as the Stanley property or the Serhant property,” two
other properties located on the lake. The court noted that the Stanley property,
which the town found to have a waterfront condition factor of 300, is entirely
on the waterfront side of Lake Road, whereas the petitioners’ property is
bisected by Lake Road, with the petitioners’ residence on the opposite side of
the road from the lake. The court also noted that the Serhant property, which
has a waterfront condition factor of 225, has a private, sandy beach on the
waterfront, whereas the petitioners’ property has no beach.

The court also compared the petitioners’ property to the Flynn property,
which includes a smaller, undeveloped waterfront lot across Lake Road from
the residence, which is located on a separate lot. The town found the Flynn’s
waterfront lot to have a waterfront condition factor of 25. The court concluded,
after “comparing the physical attributes of [the] different properties,” that the
waterfront condition factor of the petitioners’ property should be 100.

The town argues that the petitioners, who asserted that the waterfront
condition factor of their property should be 50, “simply recalculated the
assessed value by reducing the waterfront condition factor from 225 to 50,”

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and that the trial court repeated the petitioners’ error by using the same
method to arrive at its valuation, using a waterfront condition factor of 100.
The record shows, however, that the town’s increased assessment was entirely
attributable to the increased value of the petitioners’ waterfront following the
merger of their three lots. In fact, the residence alone dropped in value from
2013 to 2014. The court agreed with the petitioners that the waterfront
condition factor that the town assigned to the petitioners’ property
“understates the impact of having the undeveloped waterfront strip separated
from the developed non-waterfront lot by Lake Road.” Based upon this record,
we conclude that the trial court’s determination of fair market value is
supported by the evidence. See Society Hill, 139 N.H. at 255.

The town also argues that the court erred in abating the petitioners’
taxes because their case “was nothing more than a challenge to assessment
methodology.” We have held that “[d]isproportionality, and not methodology, is
the linchpin in establishing entitlement to a petition for abatement.” LLK
Trust, 159 N.H. at 739. However, the record shows that the petitioners did not
challenge the town’s method of assessing lakefront property values by
assigning a waterfront conditions factor to the lakefront properties; rather, they
challenged the town’s application of its method to their property, which the
court agreed resulted in a valuation that was too high. We conclude that the
petitioners met their burden of proving disproportionality. See LSP Assoc., 142
N.H. at 374.

The town also argues that the court failed to consider the price the
petitioners paid for the three lots. The fact that the trial court did not discuss
the purchase price of each lot in its order does not imply that the court did not
consider this evidence. See In re Jonathan T., 148 N.H. 296, 304 (2002).

Affirmed.

Dalianis, C.J., and Hicks, Lynn, and Bassett, JJ., concurred.

Eileen Fox,
Clerk

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