
    Rockingham
    No. 7752
    State of New Hampshire v. City of Portsmouth
    November 16, 1977
    
      
      David H. Souter, attorney general, and Roger G. Burlingame, assistant attorney general and Andreiv R. Grainger, attorney (Mr. Grainger orally), for the state.
    
      Peter J. Loughlin, city solicitor (Mr. Loughlin orally), for the city of Portsmouth.
   Douglas, J.

This is an action for injunctive relief brought by the state to prohibit the city of Portsmouth from attempting to sell certain property for nonpayment of assessed taxes. Upon an agreed statement of facts the following questions of law were reserved and transferred by the Superior Court (Mullavey, J.) without ruling:

1. Where the City of Portsmouth has assessed taxes against certain property belonging to New Hampshire State Port Authority, which property is being used or occupied by other than the State, and where the New Hampshire State Port Authority and the State of New Hampshire are without funds appropriated or otherwise to pay said assessments, may the City of Portsmouth sell said property at tax sale to satisfy its claim for said taxes ?
2. If the answer to Question #1 is in the negative, may the City of Portsmouth seek to collect its taxes pursuant to RSA 80:50?

The dispute between the parties centered on whether RSA 72:23 I, as amended, (Supp. 1975) constituted a waiver of tax immunity by the state that would permit the city of Portsmouth to sell state property for delinquent tax payments. The state argued that the proper remedy was to seek relief from the General Court, which had narrowed the tax exemption but had failed to appropriate the funds. On October 27, 1977, legislature enacted the following provisions:

84. Payment in Lieu of Taxes, City of Portsmouth. Amend RSA 271-A by inserting after Section 16 the following new section:
271-A: 17 Payments in Lieu of Taxes. The property of the authority is declared to be public property and shall be exempt from all taxes and special assessments of the state or any political subdivision thereof; provided that in lieu of such taxes the authority shall make payments to the city of Portsmouth in the amount of $30,000 annually for the tax year commencing April 1, 1975, and each subsequent tax year for highway maintenance, fire protection or other services.
85. Appropriation. The sum of $120,000 is hereby appropriated for payments in lieu of'taxes to the city of Portsmouth for the tax years April 1, 1975 — March 31, 1976; April 1, 1976 — March 31, 1977; April 1, 1977-March 31, 1978; April 1, 1978 — March 31, 1979.

Accordingly, in light of this recent legislation neither question transferred needs to be answered.

Remanded.

Lampron, J., did not participate in the decision of this case; the others concurred.  