Bar Journal - Summer 2006
NHBJ EDITOR'S AWARD: Paying for What You Can See
By: Denise Jobe
Developing Standards to Govern View Tax Assessments
in New Hampshire
Bubbling at the surface of New Hampshire’s tax issues, is a controversy regarding one of its greatest assets – its land. Real property is New Hampshire’s greatest source of revenue and New Hampshire is one of the only states that relies almost exclusively on property taxes to sustain its municipal obligations.1 Due to the enormous impact property taxes have on New Hampshire towns and taxpayers, one of the state’s greatest challenges is fairly and equitably administering this revenue system.
Inherent in the difficulty of establishing standards for assessing real property is the fact that each parcel of land is unique. In comparing the process of assessing a tax on real property with the registration of a vehicle, one can see the problem more clearly. When one has the ability to input into a computer the age, make and model of a vehicle, and have the computer generate a market value on which to base the tax, the probability of variability is greatly diminished.
Unlike assessing a tax on a vehicle, however, property tax assessment is not amenable to a simple computer model. In valuing real property, subjective judgments are unavoidable. This subjective feature of tax assessment is especially prominent when a property has a landscape that overlooks pastures, hills or mountains – a view. In this situation, an assessor employs his subjective professional judgment to implement an adjustment multiplier in order to capture what he perceives to be the increase in market value attributed to the unique features of the land. The arbitrary and undocumented nature of these multipliers has been the subject of recent litigation in both the Superior Court and before the Board of Tax and Land Appeals (BTLA).
This article will focus on recent challenges to town-wide assessment procedures and, in particular, to the ability of assessors to implement these adjustments in a uniform manner. I will discuss how the Department of Revenue Administration (DRA) is attempting to meet this challenge through the development of a ‘manual of manuals,’ to ensure the uniformity of assessments by mandating that assessing companies clearly and concisely document and justify their work. I will discuss whether this documentation will adequately address perceived inequalities in view tax assessments. I will also discuss the current debate between assessors, some of whom believe that the current DRA rules are sufficient to ensure equality and fairness, and property owners, some of whom who believe that more stringent standards are needed to justify the values placed on property as well as provide taxpayers the tools with which to evaluate their assessments.
Ultimately, I will conclude that, although the additional documentation will benefit taxpayers, if the assessing companies refuse to comply with the new standards, taxpayers will still be compelled to demand hearings before the BTLA and superior court to clarify, and correct, their tax assessments
The Framers of the New Hampshire Constitution understood the importance of maintaining a system of property taxation that is credible, efficient and fair. The New Hampshire Constitution states, “[t]here shall be an evaluation of the estates within the state taken anew once in every five years, at least, and as much oftener as the general court shall order.” 2 This provision further states: “[a]ll taxes are to be equal and proportional.”3 The Act of 1833 increased the understanding of the meaning of these constitutional words and developed a true rule which has been followed ever since. 4 The Act clarified the Framers’ words ‘an evaluation of the estates’ to mean ‘appraisals of property to be taxed at its fair value, so that proportional taxes might be laid.’ 5 Even a century later, the New Hampshire Supreme Court recognized that “[e]quality in the burden of taxation cannot exist without uniformity in the mode of assessment as well as in the rate of taxation.” 6 Yet, without any comprehensive statutory framework or clearly delineated standards, the Framers’ 200 year old mandate has not been fulfilled, especially concerning view tax assessments.
The Decision that Rocked the DRA’s World
The issue of equal and proportional taxation came to a head in 1999 in Sirrell v. State when a group of taxpayers prevailed at the superior court level in the infamous ‘Galway decision’.7 Judge Galway ruled that the property tax system was constitutionally flawed.8 He stated that the constitutional mandate to reappraise at least every five years is clear, and the evidence presented at trial showed that 71 out of 259 towns had not had revaluations in over six years. 9 The court found that “without a full revaluation of statewide property there cannot be an equal and proportional base of property values on which to assess a tax, and no guarantees of equal valuations of property across taxpayers.”10 It ordered the state to return $880 million to New Hampshire taxpayers.11
On appeal, the Supreme Court agreed that the taxation system is flawed.12 However, the Court concluded that there was not a systematic pattern of disproportionate taxation.13 Therefore, the state ultimately prevailed. However, the decision raised serious issues regarding the sustainability of the current tax assessment system.14 It encouraged the state to implement appropriate enforcement measures to ensure that each municipality assesses property within its borders every five years, as required by the constitution.15
The Court also identified significant shortcomings in New Hampshire’s assessment procedures, notably the lack of standards for local assessments and the lack of verification of data collected at the local level.16 The Court heard evidence that different methods may be used to update property values within each community.17 Finding few written guidelines and quality control mechanisms, the Court noted that the DRA does not have comprehensive auditing procedures in place to verify that assessments are being performed correctly and accurately at the local level.18 Expert testimony indicated that all local data should be validated through audit procedures, and testimony from experts on both sides of the issues agreed that the DRA needs to perform these audits.19 The Court encouraged the state to continue to address these issues through good faith efforts of the executive and legislative branches of government.20
The lack of guidelines becomes especially problematic when assessing property with unique features, such as a view. Without guidelines or standards, methods for evaluating these types of properties have varied among assessing companies. This has led to inconsistency between and within assessing companies, taxpayer confusion and dissatisfaction, and a series of agency and court orders urging the development of uniform assessment procedures.
Current New Hampshire Law
In an effort to address the concerns expressed by the Court in Sirrell, the legislature created the Equalization Standards Board (ESB) and the Assessing Standards Board (ASB).21 Both remain under the authority of the DRA. The legislature also responded by amending the statute which requires the appraisal of property, RSA 75. Specifically, the legislature added section 8 (a), which creates a requirement that the selectmen or assessors of each municipality reappraise all real estate so that assessments are at the full and true value at least as often as every fifth year.22
The legislature delegated to the selectmen or assessing official of each municipality the responsibility to appraise open space land, as well as all other taxable property at its market value.23 “Market value” means the property’s full and true value as the same would be appraised in “payment of a just debt due from a solvent debtor.”24 In Society Hill at Merrimack Condominium Association v. Town of Merrimack, the Court recognized “market value” encompasses numerous factors. 25 Among them are: whether the sale was an arms-length transaction,26 whether additional incentives were offered, whether unusual duress, such as an immediate need to sell the property, existed and whether some relationship existed between the buyer and seller that would have influenced the sales price, such as a family member selling to another family member. 27
In addition, through authority granted by RSA 541-A, the DRA promulgated the REV 600 rules which give guidance to assessors and selectmen regarding how to administer the property assessment statute.28 As a result of the changes triggered by Sirrell, most municipalities obtained approval from voters to implement a town-wide revaluation.29 Towns use the DRA REV 600 rules as guidelines in contracting with an assessment company to perform the revaluation. Those rules require that the assessment company have an appraisal manual with each town upon the conclusion of the revaluation.30 The manual requires the preparation of separate 8 ½ x 11 inch property cards for each parcel of property in the municipality.31 Along with the name and address of the property owner, the card must contain all the information utilized in determining the value of the property.32
However, the REV 600 rules do not specifically describe the form of the manual or the specific method used to determine property values. Consequently, manuals differ from company to company, and sometimes even between towns whose properties were appraised by the same company.33 Property cards have fared no better as many contain incomplete information and are difficult to understand.34
How Can I Prove What I Cannot See?
When a taxpayer disagrees with the assessed value of their property, the taxpayer must first contact the assessing official in writing.35 If dissatisfied with the decision of the local assessing authority, the property owner may either appeal to the BTLA for an abatement,36 or petition the superior court in the county in which the property is located.37 The BTLA has the authority to “hear all matters involving questions of taxation properly brought before it.”38 To succeed in the tax abatement claim, taxpayers have the burden of proving by a preponderance of the evidence that they are paying more than their proportional share of taxes.39 To carry the burden of proving disproportionality, the taxpayer must establish that his or her property is assessed at a higher percentage of fair market value than the percentage at which property is generally assessed in that town. 40
And here is the rub. How can a taxpayer bear this burden of proof when assessment companies are less then forthcoming with the information the taxpayer needs to prove a claim? This is especially true when a taxpayer sees his or her property value increase exponentially because a land factor multiplier is assigned due to a view and yet, the assessor provides no justification for the assignment of that view multiple. Both the BTLA and superior court justices have recognized this dilemma, and in recent years have implored the DRA and assessing companies to solve this problem.
Wilder v. Plainfield: Dream Home, Nightmare Tax
You are building your dream home. You have purchased 44 acres of land for $105,000. As is common in New Hampshire, the entire parcel is designated as ‘current use.’41
After three years of maintaining the property in current use you decide to build your home. You notify the town and the assessor arrives to place a market value on the land in order to determine the land use change tax. The town values 1.2 acres of your land at $127,000. A town-wide revaluation occurs 12 months later and the assessing company hired by the town values that same land at $257,000, a 102 percent increase. The assessing company employed by the town has decided that your property requires a multiplier of 400 for the view! It has taken a number of photographs of other properties in town and, according to that particular assessor, you have the ‘best’ view in town. You put your entire parcel of land on the market for $257,000. No one bites.
The Sullivan County Superior Court recently addressed a similar situation in Brad W. Wilder v. Town of Plainfield.42 There, 1.67 acres of Wilder’s property was assessed by the town for current use purposes and given a market value of $36,000.43 The town completed a revaluation eleven months later and placed a value on the land of $249,100, including a view factor of 600.44 Justice Brennan granted the plaintiff’s petition for abatement of taxes, finding that the view factor applied by the appraising company was “not supported by evidence of anything other than the subjective judgment of the appraising company.” 45 Testimony from a BTLA appraiser noted that view factors are unproven and unsupported beyond a factor of 400.46 Justice Brennan concluded that, because of the uncertainty of the validity of the multiplier, to rule that the property was not assessed at a higher percentage of fair market value than the percentage at which property is generally taxed in town would be “an absurdity.” 47 The Town has appealed to the Supreme Court.
BTLA Criticism of Assessing Manuals
Over the past few years the BTLA has been consistent in its criticism of assessors and in calling for uniformity and understandability in appraisal documentation. The Board emphasized the public confidence issue in its 2004 decision, In Re: Unity Reassessment, when it stated that “[w]hen those documents, such as the sales survey, appraisal manual and assessment records-cards are either lacking or cannot be deciphered so as to understand how the individual assessment is market related and calculated, both the ability to maintain assessment equity and the taxpayer’s confidence in that system suffer.” 48 This action was initiated as a result of allegations by a taxpayer regarding the thoroughness and understandability of the 2002 reassessment performed by the town’s contract assessing firm.49 Based on her review of the assessment, this taxpayer had a number of specific concerns including: “errors on the assessment records cards, the assessment record cards were not understandable and did not contain all the information necessary to understand the calculations.”50 The taxpayer also argued that the selectmen were unable to adequately explain the assessment process.51 The Board found the assessing company’s work product deficient under the DRA rules and the town’s contract with the assessing company because the assessments lacked understandability.52 The BTLA ordered a number of remedial measures to improve the reassessment’s shortcomings, including ordering the town to obtain from the assessing company better organized and more detailed information for inclusion in the town manual.53 The Board stated that it will then review the actions taken by the town and the assessing company to determine if they substantively comply with the DRA rules.54
Noting that the issue is not a new one, the Board referred to its previous discussion of this problem in the 2002 Town of Milford decision, where it stated, “the Board cannot emphasize enough the critical nature of documenting, reviewing and analyzing the sales, cost and income data to create the appraisal model (schedules) that are then applied in a consistent fashion to assess all properties.55 The documentation and analysis becomes the ‘touchstone’ to the market …and ensures ongoing assessment consistency.”56 Referring to the shortcomings in assessment procedures enunciated in Sirrell, the Board stated that it believed that proper assessment procedures could be attained with adherence to the REV 600 rules.57 However, it went on to note that it has observed a recent pattern of lack of substantive compliance with those rules.58 The BTLA emphasized that the rules “are not simply bureaucratic verbiage to be recited and not complied with; rather, they are general reassessment provisions that are based on industry standards.”59
The BTLA also referred to its comments regarding a similar lack of documentation of analysis in its 2004 Town of Wilmont decision.60 There, the Board emphasized that the pattern of lack of compliance with DRA rules rendered towns unable to maintain assessment equity and created a lack of transparency for taxpayers. 61 The Board called upon the DRA to exercise its authority to “monitor reassessments to ensure that municipalities are made aware of whether appropriate documentation and analysis of market data to support the reassessment is being provided and that it is an understandable format on the assessment-record cards.”62
Similarly, in its 2005 Town of Winchester decision, the Board noted that “in addition to DRA rules, it is common appraisal practice and just common sense, be it mass appraisal or fee appraisal, that any significant adjustments made to arrive at the value of a property at least be noted so the basis for the appraiser making such an adjustment is known.63 The BTLA noted that the town manual contained a discussion of three ranges of view factors, but no specific analysis or calculations of the derivation of the view factors.64
Town of Orford: BTLS Calls Revaluation Manual “Far from Adequate”
Last year, in a highly publicized case, selectmen from the town of Orford refused to implement the 2005 reassessment.65 Two of the three selectmen were concerned about the lack of consistency among view factors applied to 129 properties.66 They argued that the reassessment should be deferred until the legislature and the ASB had an opportunity to further review the issue of view factors as a component in assessing properties for tax purposes.67
Though enforcing the implementation of the 2005 revaluation, the BTLA noted that the sales analysis in the town manual lacked “adequate and clear documentation of how the sales support the assignment of view factors and a discussion as to how, if inadequate sales exist within a community, those factors were arrived at from other market data of communities of similar demographic and market conditions.”68 The BTLA found the Orford Revaluation Manual “far from adequate to meet DRA rules, the Revaluation [contract] with Orford, industry standards, and the documentation necessary to provide an understandable and transparent extraction and discussion of the base rates utilized during the reassessment.”69 The Board once again emphasized that public confidence in the assessment process is increased when the assessing companies provide a well-presented and carefully drawn analysis.70 According to the BTLA, such clear documentation is “necessary” so that those who “shoulder the burden, the taxpayer” can understand it.71
More significantly, the Board stated that it “was hopeful that through its various orders over the past several years, reassessment firms acting under contract with municipalities, on their own, or through enforcement of assessment contracts by municipalities, would improve documentation consistent with those earlier reassessment orders.”72 However, the BTLA has seen only marginal documentation improvement. 73
The Board noted in its Orford decision that it had previously written on the need for proper documentation of reassessments in its Town of Columbia and Town of Winchester decisions.74 The BTLA ordered both towns to perform revaluations of property in order to comply with RSA 75:1. Referring to its decision in Town of Columbia, the Board noted its concerns relating to a town manual which “is lacking an analysis that is compliant with the DRA Rev 600 rules, the contract between the town and [the assessing company], and generally accepted appraisal standards.”75 Although the BTLA stated that the lack of concise and understandable sales analysis was not so fatal for the Board to void the reassessment, it noted that neither the REV 600 rules, nor the contract, explicitly stated the form or style of analysis that should occur in the sales survey.76 The Board specifically found problematic the lack of analysis or documentation to support adjustments made to reflect major land factors, such as view.77
Ultimately, the assessing company in Orford ended up revising its manual to reflect the BTLA’s recommendations on reporting the view sales.78 This begs the question of how much time and money would have been saved had the company simply complied with the DRA guidelines.
The Assessing Community’s Concerns
Assessing professionals are aware of the controversy. However, a member of the NH Chapter of the IAAO pointed out that there is concern among the assessing community that the adoption of standards, with their more strict documentation requirements, would place an additional financial burden on towns and, ultimately, the taxpayers.79 Assessors foresee that towns will need to hire additional personnel to keep up with the documentation required by these standards.80 They are concerned that requiring written standards would place an additional burden on assessors’ time and would take away from their primary duty of assessing properties.81 Members of the assessing community consider the current system adequate and note the ability of taxpayers to contact their town assessors directly to meet with them and discuss their assessment.82 Assessors believe they can communicate their methodology directly to the taxpayer and thereby address the taxpayer’s concerns.83
A Manual of Manuals
Consistent with its authority, the ASB is in the process of creating a manual on how to produce town manuals.84 The Board acknowledges the recent problems with the lack of documentation and, in particular, the varying methods each appraising company is utilizing to reach property values. 85 It is working toward creating a manual that will standardize each town manual and property card, with the goal of making assessments consistent from town to town and taxpayer to taxpayer.86 The manual will set forth such issues as: how to develop methodology and procedure, how to create consistent property record cards, and how to adequately document and analyze sales surveys and data.87 The ASB is using generally accepted publications and standards relating to mass appraisal practices, including the Uniform Standards of Professional Appraisal Practices (USPAP) and the IAAO as a guide, but is expanding on those standards by incorporating specific procedures with which to reach results.88
The mandate of uniform results will require the assessing companies to customize their current software in order to justify property values in a manner that is consistent with other assessing companies.89 The ASB hopes to address the individual assessors’ concerns by emphasizing that the new software will create uniformity without requiring additional work on the part of assessors.90
The ASB anticipates that this manual will create for taxpayers a clear and concise “property report card” which will allow them to understand how assessors determined their property’s value.91 This additional information will hopefully decrease the number of actions brought before the BTLA, thus saving the state, municipalities and, ultimately the taxpayer, money.92
Has Progress Been Made?
The BTLA has noted that the costs necessary to modernize and clarify the appraisal process have, in the past, proven to be insignificant.93 Noting the software development costs associated with the computer-assisted mass appraisal systems, the BTLA, in the Town of Orford decision, stated that “any additional costs will likely be offset by savings achieved through the increased understanding and transparency that such analysis will provide the assessing firms and towns in explaining and defending the assessments and reducing appeals.”94 The same could be said today for the cost of the development of software that unifies and clarifies the town manuals.
The ASB manual is long overdue. However, it is not enough that the manual will exist. In order to enforce the requirements of the manual, the ASB will need to adopt guidelines for DRA oversight. Where adherence to rules requiring assessors to provide an understandable town manual have fallen short of compliance, the DRA must consider sanctions for assessing companies which fail to implement the new manual. It cannot take another five years to encourage assessing companies to provide vital information to taxpayers regarding their assessments. This would cost the state financially in additional abatement appeals, and, more importantly, would diminish the public’s confidence in the assessment and abatement system.
However, should the manual be properly implemented by assessing companies, taxpayers will have additional information with which to evaluate the fairness of the tax. The additional information will allow taxpayers to gauge their property’s value and understand how the assessing company reached its conclusion. These people will no longer need to pursue an abatement simply to gain information they had a right to in the first place.
For those who have views, the additional documentation will at least force the assessors to justify, either through sales or analysis, the additional value the view adds to the property. This will allow taxpayers to feel confident that the value given to their property is based on market value proven through sales, and not arbitrary multipliers created by individual assessors.
Taxpayers, on the other hand, must realize that there will always be a subjective element to property appraisal, especially when it comes to a view. There is no entirely objective way to measure the additional value property has due to a view of pastures, hills or mountains. However, by creating standards for the process, we are moving towards a more uniform and fair system that will benefit the state through increased taxpayer confidence in the system, the ability to maintain assessment equity, and transparency for taxpayers. If these standards are not only implemented, but enforced, taxpayers will no longer have to pursue expensive and time-consuming challenges to ensure fulfillment of the constitutional mandate of equal and proportional taxation.
2. N.H. Const. pt. 2, art. VI.
3. N.H. Const. pt. 2, art. VI.
4. Opinion of the Justices, 76 N.H. 588, 595, 79 A. 31 (1911).
6. Bemis Bros. Co. v. Claremont, 98 N.H. 446, 450 (1953).
7. Sirrell v. State, Dkt. No. 99-E-0692 (Rockingham County Super. Ct. January 17, 2001).
12. Sirrell v. State, 146 N.H. 364, 373 (2001).
13. Id. at 380. Although proven that the State failed to enforce Part II, Art. VI of the Constitution by not enforcing revaluation of municipalities every five years, the majority claims that the plaintiffs did not prove that their own property taxes, or property taxes of other property owners, were disproportionate, resulting in individual harm. Absent proof of harm, the Court refused to declare the taxing scheme invalid as applied. Id. at 383. The dissent disagreed that the Plaintiffs were required to show individual harm in a petition for declarative and injunctive relief, claiming that although relevant, proving harm is premature at the declaratory judgment stage. Id. at 386.
14. Id. at 373.
15. Id. at 383.
16. Id. at 374.
20. Id. at 383.
21. N.H. Rev. Stat. Ann. § 21-J:14-b (2004); J:14-c (2001). Among the powers and duties of the ASB, under ASB rule 102.02, is to establish guidelines for the administration of the property tax and assessment of real property and to annually update and publish an assessing procedures manual. According to N.H. Rev. Stat. Ann. § 21-J: 14-d (2002), the ESB was created to develop standards for equalization, and facilitate the approval of the equalization manual. It is responsible for assuring assessment uniformity from town to town by identifying deviations in market value and determining a percent of equalization to ensure that each town assesses at fair market value.
22. N.H. Rev. Stat. Ann. § 75:8-a (2005).
23. N.H. Rev. State. Ann. § 75:1(2001).
25. 139 N.H. 253, 254 (1994).
26. Appeal of Lakeshore Estates, 130 N.H. 504, 508 (1988). The Court defined an arms-length transaction as “[a] transaction freely arrived at in the open market, unaffected by abnormal pressure or by the absence of normal competitive negotiation as might be true in the case of a transaction between related parties.”
29. Interview with John McSorley, Asst. Dir. N.H. Dept. of Revenue Administration, Prop. Appraisal Div., (April 7, 2006). According to DRA REV Rule 601.23 (Dec. 31, 2005), revaluation is the “process of valuing a group of properties within a municipality using standard appraisal methods and allowing for statistical testing.
30. DRA REV Rule 602.02(d) (Dec. 31, 2005)
33. Interview with John McSorley.
35. N.H. Rev. Stat. Ann. § 76:16 (2004).
36. N.H. Rev. Stat. Ann. § 76:16(a) (2004).
37. N.H. Rev. Stat. Ann. § 76:17 (2002).
38. N.H. Rev. Stat. Ann. § 71:B-5 (2004).
39. Society Hill at Merrimack Condo. Assoc. v. Town of Gilford, 139 N.H. 253, 254 (1994).
40. Appeal of Town of Sunapee, 126 N.H. 214, 217 (1985).
41. N.H. Rev. Stat. Ann. § 79-A (1996). This statute defines the restrictions on land placed in current use. An owner of a large tract of farm land, forest land, or unproductive land (N.H. Rev. Stat. Ann. § 79-A:2 defines these terms) will typically place the land in current use in order to lower their tax burden. The advantage to a taxpayer is that the property is taxed at a lower rate according to N.H. Rev. Stat. Ann. § 79-A:5. However, in order to build on the property, the land must be removed from current use. The town will assess the property in order to determine the fair market value and then impose a 10% land use change tax according to N.H. Rev. Stat. Ann. § 79-A:7.
42. Dkt. No. 04-E-0078 (Sullivan County Super. Ct. August 20, 2005).
43. Wilder v. Town of Plainfield, Petr. Req. for Findings of Fact and Rul. of Law, ¶ 10-15 (May 31, 2005).
45. Wilder, Dkt. No. 04-E-0078 (Sullivan County Super. Ct. August 20, 2005).
46. Wilde, Petr. Req. for Findings of Fact and Rul. of Law, ¶ 42-48 (May 31, 2005).
47. Wilder, Dkt. No. 04-E-0078 (Sullivan County Super. Ct. August 20, 2005).
48. In Re: Unity Reassessment, 2004 WL 1097669, (N.H.Bd.Tax.Land.App. April 28, 2004) at *6.
49. Id. at *1.
52. Id. at *2.
53. Id. at *5.
56. Id. at *7.
63. Town of Winchester, 13, http://www.nh.gov/btla/docs2005/Winchester.pdf (January 7, 2005).
65. Town of Orford, 2005 WL 3663075, (N.H.Bd.Tax.Land.App. November 3, 2005) at *1.
68. Id. at *5.
69. Id. at *6.
70. Id. at *7.
71. Id. at *8.
74. Id. at *6.
75. Town of Columbia, 4-5, http://www.nh.gov/btla/docs2005/Columbia.pdf (August 24, 2004).
78. Interview with John McSorley.
79. Telephone Interview with Member of the IAAO, (February, 2006).
84. Interview with John McSorley.
93. Orford, 2005 WL 3663075 at * 8.
Denise Jobe is a third-year student at Franklin Pierce Law Center, and a graduate o f the University of New Hampshire Whittemore School of Business. She lives in Deering, NH, with her husband and three daughter. She works part-time in the office of her father, attorney Robert T. McWalters, a solo practitioner in Hillsborough, NH, and will join his practice upon admission.