Supreme Court At-a-Glance Contributor Ryan M. Borden, Practicing at Ford, McDonald, McPartlin & Borden in Portsmouth, NH with a focus on bankruptcy representation of trustees, creditors and debtors, corporate law and commercial litigation.

No. 2020-0474

January 12, 2022

Reversed and remanded

  • Whether the Board of Tax and Land Appeals (BTLA) erred in determining that the City over-assessed respondent for the 2017 tax year.


In February 2018, PSNH applied for an abatement from the City for property taxes assessed as of April 1, 2017 on 15 properties it owned in Berlin, including Smith Hydro.  The City appraised the properties in the aggregate sum of $99,763,300 and assessed the tax of $3,659,317.  PSNH argued the assessment substantially exceeded the properties’ fair market value and was disproportionate.  The Board of Assessors denied the abatement request and PSNH appealed to the BTLA.

At the BTLA, PSNH argued that the assessment failed to reflect changes in the energy market and its impact on the market value of Smith Station.  PSNH also argued that applying the DRA 2017 median equalization ratio to the City’s assessment indicated a fair market value of approximately $103,704,054, which was substantially greater than the true value of the property, which resulted in an excessive assessment and disproportionate burden.  By the time the appeal was heard, the Smith Hydro property was the only property in Berlin still at issue.  The parties agreed that Smith Hydro’s use as a merchant generating plant operating in a deregulated marketplace was its highest and best use but disagreed as to its market value and the equalization ratio to be applied.

PSNH’s expert testified Smith Hydro was worth $34,000,000; the City’s expert testified it was $49,000,000.  The BTLA credited the City’s expert as to value, and PSNH did not appeal that ruling.

PSNH submitted an exhibit showing the DRA 2017 median equalization ratio for Berlin and argued that the BTLA should take administrative notice of it and use that to resolve its appeal.  PSNH submitted no other evidence.  PSNH argued that it had made a prima facie case that the DRA 2017 ratio should be the median equalization ratio set by the DRA, and the burden therefore shifted to the City to present evidence warranting use of another ratio.  The City objected, saying that when the tax was assessed, the 2017 ratio was not yet issued and therefore it used the 2016 ratio, the same ratio every other Berlin taxpayer was subject to for the 2017 tax year.  The trial court granted PSNH’s pre-trial motion to adopt DRA’s 2017 median ratio.

The City explained during the hearing that it revalues utility property annually and, to ensure assessments are proportional to other properties, the City equalizes the fair market value using the most recent DRA equalization ratio and assesses the property at that equalized value.  The BTLA held that proportionality required application of the current tax year’s median equalization ratio and applied the DRA 2017 median equalization ratio to the City’s $49,000,000 market value, resulting in abated assessment of $47,138,000.  The City moved for rehearing, which was denied.  The City appealed.

On appeal, the City argued that the BTLA’s decision to apply the DRA 2017 equalization ratio to determine proportionality was unlawful or unreasonable, and that PSNH submitted no evidence regarding whether or how it was proper to use the DRA 2017 equalization ratio arrived at in May 2018 to prove the general level of assessment for tax year 2017.  The Court disagreed with PSNH that simply introducing the DRA’s equalization ratio was sufficient to carry its burden in proving the general level of assessment in Berlin for the 2017 tax year.

The Court reiterated that in certain circumstances, the DRA equalization ratio may be used to carry the taxpayer’s burden, such as where it is uncontroverted that the city used that ratio.  Here, however, the City did not stipulate to the validity of the 2017 equalization ratio and introduced evidence it used the 2016 ratio.  The Court distinguished Appeal of City of Nashua, finding it did not support PSNH’s position that it can meet its burden of proving disproportionality simply by offering evidence of an alternative DRA ratio the City did not use, because in this case, the City disclosed it used DRA’s 2016 ratio.  The Court held that PSNH failed to submit any evidence regarding the general level of assessment in Berlin or supporting its preferred equalization ratio.

The Court also dispatched PSNH’s argument that the City’s methodology of using the 2016 ration for assessing the 2017 values was untethered from good assessing practices.  The Court restated the rule that “disproportionality, and not methodology, is the linchpin in establishing entitlement to a petition for abatement.”


Donahue, Tucker & Ciandella, Meredith (Christopher L. Boldt, Eric A. Maher, and Brendan A. O’Donnell, on the brief, and Christopher L. Boldt, orally), for the petitioner.  Sulloway & Hollis, Concord (Margaret H. Nelson, Derek D. Lick, and Trevor J. Brown on the brief, and Derek D. Lick, orally), for the respondent.