Clearview Realty Ventures, LLC v. City of Laconia

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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Hillsborough-northern judicial district
No. 2022-0196

CLEARVIEW REALTY VENTURES, LLC

v.

CITY OF LACONIA

JHM HIX KEENE, LLC

v.

CITY OF KEENE

VIDHI HOSPITALITY, LLC

v.

CITY OF KEENE

NAKSH HOSPITALITY, LLC

v.

CITY OF MANCHESTER
 298 QUEEN CITY HOTEL, LLC

v.

CITY OF MANCHESTER

ANSHI HOSPITALITY, LLC

v.

CITY OF MANCHESTER

700 ELM, LLC

v.

CITY OF MANCHESTER

BEDFORD-CARNEVALE, LLC

v.

TOWN OF BEDFORD

CARNEVALE HOLDINGS, LLC

v.

TOWN OF BEDFORD

Argued: December 13, 2022
Opinion Issued: April 18, 2023

Bernstein, Shur, Sawyer & Nelson, P.A., of Manchester (Hilary H.
Rheaume and Roy W. Tilsley, Jr. on the brief, and Roy W. Tilsley, Jr. orally), for
the plaintiffs.

Mitchell Municipal Group, P.A., of Laconia (Laura Spector-Morgan on the
joint brief for defendant City of Laconia and orally for all defendants).

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 Devine Millimet & Branch, PA, of Manchester (Matthew R. Johnson on
the joint brief), for defendant City of Keene.

Peter R. Chiesa, of Manchester, on the joint brief, for defendant City of
Manchester.

Upton & Hatfield, LLP, of Portsmouth (Russell F. Hilliard on the joint
brief), for defendant Town of Bedford.

MACDONALD, C.J. RSA 76:21, I, provides that local officials “shall
prorate” a building’s assessment “[w]henever a taxable building is damaged due
to unintended fire or natural disaster to the extent that it renders the building
not able to be used for its intended use.” RSA 76:21, I (Supp. 2022). The
plaintiffs — Clearview Realty Ventures, LLC, JHM HIX Keene, LLC, VIDHI
Hospitality, LLC, NAKSH Hospitality, LLC, 298 Queen City Hotel, LLC, ANSHI
Hospitality, LLC, 700 Elm, LLC, Bedford-Carnevale, LLC, and Carnevale
Holdings, LLC — own commercial real estate on which they operate hotels,
some of which offer restaurant services along with banquet or function
facilities. They contend that the COVID-19 pandemic was a “natural disaster”
and that their buildings were “damaged” within the meaning of the statute.

The plaintiffs sought relief from the municipalities involved: the Cities of
Laconia, Keene, and Manchester, and the Town of Bedford. After denial of their
applications, they appealed to the superior court in the applicable county. See
RSA 76:21, VII; RSA 76:17 (Supp. 2022). Observing that there were thirteen
separate lawsuits pending in six counties, they then filed an assented-to
motion for interlocutory transfer without ruling and motion to consolidate to
allow the coordinated transfer of the common questions of law to this court.

In this interlocutory transfer without ruling (Messer, J.), we are asked to
determine: (1) whether, for purposes of RSA 76:21, the COVID-19 pandemic
constitutes a “natural disaster”; and (2) if so, whether the buildings owned by
the plaintiffs were “damaged” by COVID-19 such that they were “not able to be
used for [their] intended use” within the meaning of RSA 76:21, I. We answer
the second question in the negative.

I. Background

We accept the facts as presented in the interlocutory transfer statement.
The facts presented principally focus on the actions taken by federal and state
authorities in response to the outbreak of COVID-19, summarized here. On
March 13, 2020, the President of the United States declared a “National

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Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak.”
On that same day, the Governor issued Executive Order 2020-04, in which he
declared a State of Emergency caused by COVID-19. Executive Order 2020-04,
available at
https://www.governor.nh.gov/sites/g/files/ehbemt336/files/documents/2020
-04.pdf (last visited April 13, 2023). Over the next several months, the
Governor issued emergency orders restricting the capacities and operations of
lodging providers such as hotels, motels, bed and breakfasts, inns, and short
term rentals. See, e.g., Emergency Order #17 Pursuant to Executive Order
2020-04, available at
https://www.governor.nh.gov/sites/g/files/ehbemt336/files/documents/emer
gency-order-17.pdf (last visited April 13, 2023) (declaring the “Closure of non-
essential businesses and requiring Granite Staters to stay at home”). The
Governor also issued emergency orders that restricted the capacities and
operations of restaurants and other food services. See, e.g., Emergency Order
#2 Pursuant to Executive Order 2020-04, available at
https://www.governor.nh.gov/sites/g/files/ehbemt336/files/documents/emer
gency-order-2.pdf (last visited April 13, 2023) (declaring a “Temporary
prohibition on scheduled gatherings of 50 or more attendees and onsite food
and beverage consumption”).

The Governor extended the State of Emergency declared in Executive
Order No. 2020-04 several times with the last extension being issued on May
28, 2021. Executive Order 2021-10, available at
https://www.governor.nh.gov/sites/g/files/ehbemt336/files/documents/2021
-10.pdf (last visited April 13, 2023). Executive Order No. 2020-04 expired on
June 11, 2021. See id. As a result, all emergency orders that were issued
pursuant to Executive Order No. 2020-04 also expired on June 11, 2021. See
id.

Aside from facts relating to regulatory steps taken by government
officials, there are no facts before us supporting the plaintiffs’ contention that
COVID-19 is a “natural disaster” within the meaning of the statute or facts
relating to how the plaintiffs’ buildings were damaged “due to” COVID-19. See
RSA 76:21, I.

The plaintiffs all filed timely abatement applications with their respective
municipalities on or before March 1, 2021. In their applications, the plaintiffs
sought an abatement of real estate taxes, pursuant to RSA 76:17, and
proration of real estate taxes, pursuant to RSA 76:21. The municipalities
either denied the plaintiffs’ abatement requests or granted partial abatements.

On or about August 31, 2021, the plaintiffs each filed a petition in
superior court seeking abatement and proration of their real estate taxes
pursuant to RSA 76:17 and RSA 76:21. See RSA 76:21, VII. With respect to
their claims for proration under RSA 76:21, the plaintiffs contended “that the

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COVID-19 pandemic qualifies as a natural disaster that caused damage to
their respective buildings and, as a result of the natural disaster, their
buildings were not able to be used, or fully used, for their intended use.”

In March 2022, the plaintiffs filed an assented-to motion for interlocutory
transfer with the trial court, which was granted (Messer, J.). We accepted both
transferred questions. See Sup. Ct. R. 9.

II. Analysis

Answering the transferred questions requires that we engage in statutory
interpretation. We first look to the language of the statute itself, and, if
possible, construe that language according to its plain and ordinary meaning.
St. Onge v. Oberten, LLC, 174 N.H. 393, 395 (2021). We give effect to every
word of a statute whenever possible and will not consider what the legislature
might have said or add language that the legislature did not see fit to include.
Id. We also construe all parts of a statute together to effectuate its overall
purpose and to avoid an absurd or unjust result. Id. However, we do not
construe statutes in isolation; instead, we attempt to construe them in
harmony with the overall statutory scheme. Id.

RSA 76:21, I, provides: “Whenever a taxable building is damaged due to
unintended fire or natural disaster to the extent that it renders the building not
able to be used for its intended use, the assessing officials shall prorate the
assessment for the building for the current tax year.” The proration “shall be
based on the number of days that the building was available for its intended
use divided by the number of days in the tax year, multiplied by the building
assessment.” RSA 76:21, II. The statute caps the “total tax reduction from
proration under this section for any city or town” to “an amount equal to 1/2 of
one percent of the total property taxes committed in the tax year.” RSA 76:21,
V. Finally, the statute states that “[n]othing in this section shall limit the
ability of the assessing officials to abate taxes for good cause shown pursuant
to RSA 76:16.” RSA 76:21, VI.

Thus, RSA 76:21 “offers a streamlined recovery process and a mandatory
prorated calculation.” Carr v. Town of New London, 170 N.H. 10, 16 (2017).
This tax reduction based on damage to a building is therefore distinct from an
abatement, which concerns “whether the government has taxed the plaintiff
out of proportion to other property owners in the taxing district.” Porter v.
Town of Sandwich, 153 N.H. 175, 177 (2006).

Under this statute, to qualify for the proration, the plaintiffs must first
establish that their buildings were “damaged” and, second, that the “damage”
was “due to unintended fire or natural disaster.” RSA 76:21, I. Because we
conclude that the buildings were not damaged, we do not reach the second
element of the statute.

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 The plaintiffs argue that “the buildings subject to this [interlocutory
transfer] were damaged by COVID-19, such that they were not able to be used
for their intended use under the meaning of RSA 76:21, I.” They assert that
“RSA 76:21 does not require a showing of direct and/or physical loss to the
property.” The defendants contend that the plaintiffs’ “purely economic loss
cannot be read to be within the terms of RSA 76:21 as the type of damage for
which the statute was intended to provide relief.” We agree with the
defendants.

The plaintiffs specifically argue that the buildings were “damaged”
because “[s]ince the [plaintiffs] were not allowed to carry on business, the
hotels suffered a significant decline in income” and “the reduced income
negatively impacts the fair market value of the taxable buildings.” We decline
to read economic loss without physical damage into RSA 76:21 where it does
not exist in the plain language of the statute. “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.” LLK
Trust v. Town of Wolfeboro, 159 N.H. 734, 736 (2010). The statute first
requires physical damage to the building before considering any economic loss.
Thus, the plaintiffs’ interpretation of the statute contradicts the plain and
ordinary meaning of RSA 76:21, I.

The overall statutory scheme supports a requirement of physical damage
to a building itself. RSA 76:21, II states that “[t]he proration of the building
assessment shall be based on the number of days that the building was
available for its intended use divided by the number of days in the tax year,
multiplied by the building assessment.” (Emphasis added.) Notably, RSA
76:21, II does not list as a factor the number of days that a business
experienced economic loss.

Accordingly, we hold that the taxable buildings subject to this
interlocutory transfer were not “damaged” so as to be entitled to a proration of
real estate taxes under RSA 76:21, I. We answer the second question in the
negative. In light of this response, we need not answer the first question.

Remanded.

HICKS, BASSETT, HANTZ MARCONI, and DONOVAN, JJ., concurred.

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