Towns Retain Assessing Discretion Over Utilities; the Unit Method is not Mandatory

Appeal of Public Service Company of NH d/b/a Eversource Energy
New Hampshire Supreme Court No. 2015-0499
Friday, June 2, 2017

Eversource filed tax abatement appeals for 86 municipal assessments for tax years 2011 and 2012.  These appeals were consolidated and heard before the Board of Tax and Land Appeals (BTLA).  For the bulk of the those appeals the BTLA ruled in favor of the municipalities because the unit method manner of appraisal employed by Eversource’s expert appraiser, and by the Department of Revenue Administration (DRA), did not result in a credible opinion of market value and thus Eversource had not met its burden of proving that the local assessments were disproportional.  

On appeal, the New Hampshire Supreme Court ruled that Eversource had made only “very general assertions regarding regulation and its alleged impact on the market value of [its]  property.” The Court agreed with the BTLA that Eversource had failed to provide sufficient probative evidence that the utility regulatory environment in which Eversource operates was so restrictive that the value of its property was substantially less than the assessed values assigned by the municipalities.  The New Hampshire Supreme Court also approved the BTLA’s rejection of the unit method of appraisal even though that method had been previously approved by the BTLA.  As the Court noted “[t]he fact that the BTLA accepted a unit approach in a different case, for a different taxpayer, in a different tax year, based upon different appraisals, and supported by different testimony has no bearing upon whether the BTLA could properly reject the Tegarden and DRA appraisals in this case.”

The Court also affirmed the BTLA’s rejection of the appraisal testimony provided by Eversource since the BTLA made numerous, specific findings, which were supported by the record, regarding why it rejected those expert appraisal opinions.

The Court has also rejected the assertion that appraisal method used by DRA to assess utility property under RSA Chapter 83-F for purposes of the statewide utility property tax was a better indicator of value than local appraisal methods.

This decision reaffirms the discretion vested in local assessing officials to choose among the five available appraisal methods in determining the value of utility property under RSA 75:1. However, as noted by the Court in its opinion “the substantial variance between the DRA’s assessments and the local assessments is troubling. To the extent that this is caused by methodological conflicts in how the DRA and municipalities are appraising utility property, we note that the legislature has provided no guidance on the methodology that should be used to determine utility property’s full and true value.”