THE STATE OF NEW HAMPSHIRE SUPREME COURT Term October Session. No Everett Ashton, Inc. City of Concord

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1 THE STATE OF NEW HAMPSHIRE SUPREME COURT 2015 Term October Session No Everett Ashton, Inc. v. City of Concord MANDATORY APPEAL FROM ROCKINGHAM SUPERIOR COURT BRIEF OF THE NEW HAMPSHIRE MUNICIPAL ASSOCIATION AS AMICUS CURIAE New Hampshire Municipal Association Stephen C. Buckley, Legal Services Counsel NH Bar ID #335 Margaret M.L. Byrnes, Staff Attorney NH Bar ID # Triangle Park Drive P.O. Box 617 Concord, NH

2 TABLE OF CONTENTS TABLE OF AUTHORITIES... 2 STATEMENT OF FACTS AND OF THE CASE... 3 ARGUMENT... 4 I. The trial court s determination that the language of RSA 80:2-a and RSA 205-A:4-a, VII compelled the City to abate taxes on manufactured homes deemed to have no value is based upon an erroneous statutory construction II. The legislative history of RSA 205-A:4-a, VII and RSA 80:2-a does not support the trial court s interpretation of these statutes CONCLUSION

3 CASES TABLE OF AUTHORITIES Atwater v. Town of Plainfield, 160 N.H. 503 (2010)... 4, 5 Clare v. Town of Hudson, 160 N.H. 378 (2010)... 4 Green Meadows Mobile Homes, Inc. v. City of Concord, 156 N.H. 394 (2007)... 7 Property Portfolio Group LLC v. Town of Derry, 163 N.H. 754 (2012)... 4 Solid Waste Agency of N. Cook Cnty. V. U.S. Army Corps of Engineers, 531 U.S. 159 (2001).. 10 STATUTES RSA 80:2-a... 8 RSA Chapter 205-A... 5 RSA 205-A: RSA 205-A: RSA 205-A: RSA 205-A:4-a... 6 RSA 205-A:4-a, VII... 4, 6, 7, 8 RSA 205-A: RSA 205-A:13-b... 5 RSA 205-A: RSA 205-A: OTHER AUTHORITIES House Bill , 10 House Bill 232-FN House Bill 1212-FN TREATISES 3 Sutherland Statutory Construction 57:3 (7th ed.)

4 STATEMENT OF FACTS AND OF THE CASE The New Hampshire Municipal Association defers to the Statement of Facts and of the Case in the Brief of The City of Concord, and relies thereon. 3

5 ARGUMENT In accordance with The New Hampshire Municipal Association s assented-to motion for leave to appear and file a brief as amicus curiae, this brief addresses Question 1 only: Whether the trial court erred in interpreting RSA 80:2-a and RSA 205-A:4-a, VII to require municipalities to waive outstanding property taxes and issue a demolition permit when a manufactured housing park seeks to demolish a manufactured home that has been abandoned and does not have value. I. The trial court s determination that the language of RSA 80:2-a and RSA 205- A:4-a, VII compelled the City to abate taxes on manufactured homes deemed to have no value is based upon an erroneous statutory construction. The trial s court conclusion that RSA 205-A:4-a, VII mandates municipalities waive taxes on abandoned, valueless manufactured housing is based upon improper statutory construction. First, the trial court erroneously concluded that RSA 205-A:4-a, VII is ambiguous. The interpretation and application of a statute is, ultimately, a question of law which this Court reviews de novo. Atwater v. Town of Plainfield, 160 N.H. 503, 507 (2010). This Court will ascribe the plain and ordinary meanings to the words used in a statute, Id. at 508, neither considering what the legislature might have said nor adding language, and consulting legislative history only where the statutory language is ambiguous, see Clare v. Town of Hudson, 160 N.H. 378, (2010); see also Property Portfolio Group LLC v. Town of Derry, 163 N.H. 754, 758 (2012). The trial court concluded that because there are no factors in RSA 205-A:4-a, VII for the City Assessors Board to consider when deciding to waive the taxes, the statute is ambiguous, thus justifying the use of extrinsic factors to determine the meaning of the word may. Trial 4

6 Court Decision On Merits, Notice of Appeal, Add. 8. However, because the plain and ordinary meaning of the word may, rather than shall or must, clearly grants the City Assessors the discretion to grant a tax abatement, this manner of statutory construction deviates significantly from the rules of statutory construction. The form of the verb used in a statute, i.e., something may, shall or must be done, is the single most important textual consideration determining whether a statute is mandatory or directory. 3 Sutherland Statutory Construction 57:3 (7th ed.). As a consequence, the trial court s conclusion that, due to the fact the manufactured homes in question were deemed to have no value, the City Board of Assessors was compelled to grant the tax abatement to permit the issuance of the requested demolition permits directly contradicts the plain meaning of the statute and, therefore, cannot stand. Consequently, the judge s interpretation that a municipality is prohibited from withholding permission to move the manufactured home when it has no value is simply not supported by the plain language of the statute. Trial Court Decision On Merits, Notice of Appeal, Add. 9. Furthermore, the trial court erred by reading this one provision of the statute in isolation. It is an equally well-established rule of statutory construction that this Court will interpret statutes in the context of the overall statutory scheme and not in isolation, with the goal of applying the statutes in question in light of the legislature s intent in enacting them and in light of the policy sought to be advanced by the entire statutory scheme. Atwater, 160 N.H. at 508. RSA Chapter 205-A is entitled Regulation of Manufactured Housing Parks, and the sections therein are directed at managing the relationship between the owners of manufactured houses and the operators of manufactured housing parks. RSA 205-A:2 provides a list of prohibited conduct limiting the actions of manufactured park owners. RSA 205-A:3, RSA 205- A:4, and RSA 205-A:5 through :13-b regulate the manner of evictions and termination of 5

7 tenancies, address permissible charges and fees, and provide consumer protection regulations that shield manufactured home owners from predatory conduct by manufactured park owners. RSA 205-A:16 through 205-A:20 are all health and safety mandates that must be honored by park owners. RSA 205-A:21 through :24 mandate specific notice requirements to park tenants in the event of the sale of the park by the owner, and RSA 205-A:25 through :31 establishes the board of manufactured housing to manage disputes over parks rules. RSA 205-A:4-a, unlike the rest of RSA Chapter 205-A, regulates the financial relationship between park owners and lenders who assert liens on the sale of manufactured housing. Through this statutory scheme, lienholders can attain the status of eligible lienholder, which affords the right to receive notice about park rules, rent, and fees charged to owners, and imposes the duty to give notice of lien assignments. Eligible lienholders are also entitled to receive notice that their borrower is in arrears on park rent and other charges, and affords the opportunity to protect the collateral from eviction from the park by permitting the eligible lienholder to satisfy such arrearages. The statute also can effect a subordination of the eligible lienholders lien for the benefit of the park owner upon failure to give notice of a lien, failure to give notice of assignment, or refusal to assume the unit owner s obligation to make rent payments. Finally, a park owner may sell a manufactured home to recover rent and other charges due, including reasonable moving and storage charges, as if the park owner were a secured party selling collateral under the Uniform Commercial Code. Wedged into paragraph (VII) of RSA 205-A:4-a is the provision that a municipality may issue a statement that the manufactured housing may be relocated without the payment of the taxes assessed thereon as provided in RSA 80:2-a in the event the proceeds from the sale are insufficient to pay the full amount of the property tax outstanding. The immediately preceding 6

8 three sentences refer to the park owner s ability to sell manufactured housing, as a secured party under the Uniform Commercial Code, and effect a forced waiver of homestead rights by a unit owner who is in rental arrears by more than 60 days and who has apparently abandoned the premises. By asserting that this provision also creates a mandate on municipalities, the trial court read the section in isolation and without regard to context, obscuring the evident purpose of the statute. Accordingly, the trial court s statutory construction rests on unsound principles and should be overturned. II. The legislative history of RSA 205-A:4-a, VII and RSA 80:2-a does not support the trial court s interpretation of these statutes. The trial court concluded that the RSA 205-A:4-a, VII is ambiguous because it states that a tax assessor may waive the tax lien but does not provide any factors that the assessor must consider when determining whether to issue the waiver. As a result, the judge looked to the legislative history for clarification. Where the statutory language is ambiguous or where more than one reasonable interpretation exists, we review legislative history to aid in our analysis. Green Meadows Mobile Homes, Inc. v. City of Concord, 156 N.H. 394, , 934 A.2d 586, 588 (2007) (internal citations omitted). However, even assuming that the statutory construction is ambiguous, the legislative history supports the conclusion that there was never intended to be any mandate on municipalities to grant a waiver or allow manufactured housing to be moved without payment of property taxes. Furthermore, even if the statute is ambiguous for failure to state factors that must be considered when deciding to waive the taxes, the legislative history does not support the trial court s interpretation that RSA 205-A:4-a, VII requires municipalities to waive taxes on valueless, abandoned manufactured housing. 7

9 RSA 205-A:4, VII is directly linked to RSA 80:2-a. In 1995, House Bill 137 amended the language of both RSA 80:2-a and RSA 205-A:4, VII. The stated purpose of the bill was to clarify the procedure relative to taxation on abandoned manufactured housing units, allowing abandoned units to be relocated under certain circumstances when taxes have not been paid. App. 170 (emphasis added). This was important because, prior to HB 137, RSA 80:2-a allowed a taxable structure, including manufactured housing, to be moved only if the individual moving the structure possessed a receipted tax bill or a certificate that the taxes had been paid in full. Thus, municipalities did not have the option to allow manufactured housing with unpaid property taxes to be relocated. Therefore, RSA 80:2-a was amended, in part, to allow a person to move such a structure, upon proof of a statement signed by a majority of the board of selectmen or assessors that the same may be relocated without the payment of the assessed taxes. At the same time, RSA 205-A:4-a, VII was amended, in part, as follows: The board of selectmen or assessors of the city or town may issue a statement that the manufactured housing may be relocated without the payment of the taxes assessed thereon as provided in RSA 80:2-a in the event the proceeds from the sale are insufficient to pay the full amount of the property tax outstanding. (emphasis added). The legislative history reveals that the amendments came as a response to the onslaught of abandoned manufactured housing as a result of the recession in the early 1990s, as explained by Maura Carroll of the New Hampshire Municipal Association at a Committee on Public Affairs hearing on the bill: One of the issues that we ve looked at is you don t see activity in this area until you hit a recession and clearly in the last couple of years, we ve seen the results of the process of when manufactured housing and other homes have been lienable and are coming into tax deeds, and some of these homes have been in such shape that they were not able to be restored or sold and because they ve been abandoned, communities could not follow the 8

10 individuals to get the taxes repaid. There was some language that was taken out of 8:2-a (sic) that also tied the hands of local officials about allowing movement of these units off the lots they were on. App The New Hampshire Municipal Association supported the bill as a means of trying to work out a compromise in solving issues related to abandoned mobile homes and manufactured housing. App Carroll also categorized the amendments as correcting language in the previous form of the statute that tied the hands of local officials about allowing movement of these units off the lots they were on. App. 175 (emphasis added). In a separate hearing, Carroll also testified that the change to RSA 80:2-a sought to provide flexibility if home is abandoned. App. 195 (emphasis added). Furthermore, the testimony of Representative Metzger explicitly stated: The bill makes sure there is no mandate on the town. It allows park owners to sell abandoned homes, so as to recover taxes, and cost of selling. The home can then be moved. Key word is may. App. 194 (emphasis added). Finally, the committee report categorized the bill as follows: The committee believes that this bill would allow local authorities to keep property on the tax rolls and allow manufactured housing park owners to provide a suitable atmosphere for their clients and the local community. App. 221 (emphasis added). Despite the consistency in the testimony that the bill would not create any sort of mandate, the trial court s order apparently focused on one statement from the testimony from Representative Beverly Gage: Purpose of bill is to get the abandoned home off the lot and properly disposed of. App There is no doubt that the statute targeted the problems presented by immovability of abandoned homes under the previous version of the statutes. However, reading the legislative 9

11 history as a whole, it is clear that the purpose of the amended language was to bestow upon municipalities an option not a mandate to get the abandoned home off the lot and properly disposed of. Indeed, if a mandate had been intended, the legislature had the ability to use explicit mandatory language ordering the municipality to act. The amendments, therefore, created a new option for municipalities, with the main purpose being the goal of compromise as a means of balancing the needs and concerns of municipalities and manufactured housing park owners. This interpretation is further bolstered by failed House Bill 1212-FN and failed House Bill 232-FN which both, in effect, would have created a mandate on municipalities. The judge found this a dubious aid to interpretation, citing Solid Waste Agency of N. Cook Cnty. V. U.S. Army Corps of Engineers, 531 U.S (2001) for the proposition that failed legislative proposals are a particularly dangerous ground on which to rest an interpretation of a prior statute. Trial Court Decision On Merits, Notice of Appeal, Add. 8. However, it cannot be ignored that the legislative history of failed HB 1212-FN and HB 232-FN supports the City of Concord s position and consequently further erodes the judge s interpretation. Both bills would have, essentially, mandated a municipality to allow manufactured housing to be relocated without the payment of the taxes. When HB 1212-FN was voted Inexpedient to Legislate, the Committee pointed out that this [bill] is not fair to all other property taxpayers that are required to pay taxes. App Nor would it be fair to construe a statutory amendment, using discretionary language and supported universally as an option and not a mandate, as requiring a municipal to act in a certain way. Therefore, the failure of these subsequent amendments supports the clear legislative intent of HB 137 to give municipalities an option, rather than a mandate, regarding the relocation of abandoned manufactured housing. 10

12 CONCLUSION For the foregoing reasons, The New Hampshire Municipal Association, amicus curiae, joins in the City of Concord s request for relief. Dated: October 2, 2015 Respectfully Submitted, NEW HAMPSHIRE MUNICIPAL ASSOCIATION By: Stephen C. Buckley, Legal Services Counsel NH BAR ID #225 Margaret M.L. Byrnes, Staff Attorney NH BAR ID # Triangle Park Drive P.O. Box 617 Concord, NH CERTIFICATE OF SERVICE I hereby certify that this 2 nd day of October, 2015 I have mailed two copies of this brief to James J. Bianco, Jr., Esquire, Robert M. Shepard, Esquire, Danielle L. Pacik, Esquire. Date: Stephen C. Buckley 11