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Laurie A. Ortolano Trust v. City of Nashua
Docket Nos.: 29472-18PT/29699-19PT
Page 5 of 18

/ 0.888), for tax years 2018 and 2019, respectively. The board finds the Taxpayer carried this
burden.

The following facts are generally undisputed. Constructed circa 1924, the Property is a
large, single-family residence on a 0.34-acre lot and, while some portions of the residence are
outdated, the Property is well maintained. The immediate neighborhood (“North Nashua”)
consists of larger, colonial and/or Victorian style single-family residences that are generally
considered very desirable.

There is no dispute the Taxpayer acquired the Property by warranty deed recorded in
January, 2014 for $725,000, after it was listed with a professional broker with an asking price of
$799,999 and was on the market for approximately six months prior to going under contract.
(Cf “Exhibit A” to the City’s Requests for Findings of Fact and Rulings of Law.)

The City contends the $725,000 sale price is persuasive evidence of the Property’s
market value in 2018 and 2019. The City’s appraiser used the January, 2014 sale as a
comparable in both his 2018 and 2019 appraisals and, in his final reconciliation, placed a
significant amount of weight on it.

The Taxpayer disagrees for a number of reasons. Ms. Ortolano testified it was a “cash”
purchase (with no supporting appraisal for financing or other purposes) and that she ‘overpaid’
for it.

The board finds, in certain circumstances, the sale price can be a good indication of
market value. (Cf. 2018 and 2019 Request Nos. 10 and 8, respectively, in Addendum A.) As
noted above, the January, 2014 purchase was a cash transaction not supported by an appraisal or

other independent indicator of value. These facts and the ample, much more recent market value

Laurie A. Ortolano Trust v. City of Nashua
Docket Nos.: 29472-18PT/29699-19PT
Page 6 of 18

evidence, support a finding the 2014 sale price is not a reliable indicator of the Property’s market
value in tax years 2018 and 2019.

In making market value findings, the board examines the quality and probative value of
the evidence presented and not necessarily the sheer quantity or volume of documents and
testimony submitted, especially when not germane to the focus of each appeal. The Taxpayer
submitted 48 admitted exhibits in the 2018 appeal and 24 admitted exhibits in the 2019 appeal.
The City presented ten admitted exhibits in each of the two appeals. The Taxpayer presented the
testimony of Laurie Ortolano and did not call its appraiser as a witness. The City presented the
testimony of its appraiser, Vern J. Gardner, Jr.

As is typical in appeals involving residential properties, both appraisers utilized the sales
comparison approach to value. In reviewing the evidence as a whole, the board finds
deficiencies in both appraisals and therefore makes its own market value findings, independent
of each appraiser’s specific market value estimates.

With respect to the Taxpayer’s evidence, the board finds its appraisals ostensibly
prepared and signed by Peter E. Stanhope of The Stanhope Group, LLC did not adequately
adjust for improving market conditions between the date of sales and the effective dates of the
appraisals (April 1, 2018 and April 1, 2019). Since neither Mr. Stanhope nor his associate who
worked on the appraisal testified, they were not available for cross-examination or questions
from the board regarding their work and value estimates. An appraiser’s absence lessens, to
some extent, the weight the board can give to his or her value estimates.

The City’s appraiser, Mr. Gardner, did testify at length and was subject to extensive

cross-examination. As discussed above, there are reasons to question use of the 2014 sale price.

Laurie A. Ortolano Trust v. City of Nashua
Docket Nos.: 29472-18PT/29699-19PT
Page 7 of 18

Further, the board finds he used at least one comparable sale that was inappropriate and its
inclusion skewed the resulting market value opinion substantially.

In making its own market value findings, the board notes the parties’ respective
appraisers (Stanhope and Gardner) used seven comparables in their 2018 valuations and six in
their 2019 valuations. The board reviewed this sales evidence in considerable detail. Prior to
making any adjustments, the comparable sales utilized in the 2018 Taxpayer Appraisal ranged
from a low of $559,900 to $650,000; after adjustments, these comparables provide a value
indication range of $587,600 to $597,900. (See 2018 Taxpayer Exhibit No. 3, p. 59.) In the
2018 City Appraisal, the comparable sales ranged from a low of $650,000 to a high of
$1,150,000; after adjustments, the comparables provide a value indication range of $648,100 to
$979,550. (See 2018 Municipality Exhibit A, p. 8.) In comparison, the highest sale price
utilized by the Taxpayer’s appraiser for tax year 2018 was $650,000, which is close to the lowest
sale price utilized by the City’s appraiser.

One comparable, 4 Elliot Street, which sold in February, 2018 for $650,000, was utilized
by each appraiser in both their 2018 and 2019 appraisals. Another comparable, 51 Concord
Street, which sold in September, 2019 for $667,000, was utilized by both appraisers in their 2019
appraisals. (See 2018 Taxpayer Exhibit No. 3, 2019 Taxpayer Exhibit No.1 and Municipality
Exhibit A in the 2018 and 2019 appeals.)

The board finds these two sales, when adjusted to account for differences in market
conditions, lot size, gross living area, quality of construction and other physical characteristics
provide the best basis for arriving at a reasonable indication of the market value of the Property.
Weighing all of the evidence, including the testimony of Ms. Ortolano and Mr. Gardner, the

board finds the Property had a market value of $625,000 as of the April 1, 2018 assessment date.

Each party has caused this Agreement to be executed by its authorized representative on the respective dates written below.

Constellation NewEnergy, Inc.

Bro T Sorat
David T. Donat
Vice President

2016-09-15
14:58-05:00

Name:
Title:

Address: 1221 Lamar St Suife 750
Houston, TX 77010
Atn: Contracts Administration
Fax: 888-829-8738
Phone: 888-635-0827

Customer:

Names S/O apes L/ be boneticcé

Title:
Dats: Calica

Address: 229 MAIN ST
NASHUA, NH 030602938

_ say - SYHSO

Fax: 6o3
Phin Go2-SYI-32Go
Email:

DonchesstT a nacsluanls

FOR INTERNAL USE ONLY

©2016 Constellation Energy Resources, LLC Allrights reserved.
Errors and omissions excepted. Std. Short Form_v.2010 Rev Mar-01-2016
Sales Rep: Craig Brazel 117636.46911.0

i)

Printed: 9/15/2016

Page -3- of 12

j qv

Project Approach

Determining the recommended route and configuration of the improved system is the most
important element in this evaluation. For this reason, our study will focus on consideration of
physical constraints and the determination of a recommended pipe layout. We consider sizing of
the pipes as secondary in importance to the determination of a preferred layout. We anticipate
consideration of the following alternatives:

e A new stormwater pipeline may be routed in Factory Street with access to a river outfall
through a 20-loot alley between Factory Strect and Water Street.

e Alternatively, the existing 48-inch combined sewer pipe could be used for drainage with
a connection made to the existing 48-inch outfall. A new sewer main would be needed.
This pipeline might be routed in Factory Street through the 20-foot alley and connect into
the riverside interceptor.

e Alternatives which do not involve new pipe in Factory Street would require a new
pipeline in the area of the Water Street bridge abutment. There are significant horizontal
and vertical constraints which we will evaluate in this area.

Following review of routing alternatives, HIS1 will make recommendations to the City. With City
review and input, HSI will proceed with preliminary sizing of pipelines to complete this initial
evaluation.

Our work on this assignment, as well as possible future assignments, will be performed in
accordance with the terms and conditions attached. The work will be billed at the hourly rates
listed in the attached Fee Schedule. Total billings will not exceed $75.000 without advance
written authorization.

Thank you for the opportunity to provide professional services to the City of Nashua. Please
contact me if you have any questions.

*, Vancor, PLE
Vire President/Principal Engincer

Sinc

APPROVED BY:

Mayor Donchess, City of Nashua

Laurie A. Ortolano Trust v. City of Nashua
Docket Nos.: 29472-18PT/29699-19PT
Page 8 of 18

For 2019, the board looked at the evidence to determine if there were any changes in the
market from the prior year. Mr. Gardner testified he used an adjustment of 2.4% to account for
increasing market values in the relevant timeframe. The Taxpayer’s appraiser did not use any
adjustments. Considering the City’s equalization ratios indicate market values generally
increased 6% from 2018 to 2019, the board finds an adjustment of 4% is well supported.
Applying this adjustment, the board finds the market value of the Property, as of April 1, 2019,
was $650,000.

In making these market value findings, the board also placed some weight on Taxpayer
Exhibit No. 28, a sales analysis prepared by KRT Appraisal, the City’s contracted assessing firm.
According to the Taxpayer, and not disputed by the City, this document was prepared in
response to the filing of the Taxpayer’s 2018 abatement application. KRT utilized three
comparable sales (45 Berkeley Street, 4 Elliot Street and 38 Berkeley Street) in its analysis.
After making what KRT considered appropriate adjustments, KRT arrived at three market value
indications of $624,470, $688,567 and $617,425, respectively, and a median indication of
$624,470. -

Below are additional considerations that led the board to make its own independent
market value findings. In this respect, the board did not find Mr. Gardner’s much higher market
value estimates to be credible for several reasons. To begin with, Mr. Gardner utilized the
January, 2014 sale of the Property in both his appraisals and placed significant weight on it in his
final reconciliation of value, even when this sale price was not supported by other, more recent
market sales and despite Ms. Ortolano’s sworn testimony that the 2014 sale price was above
market value. Mr. Gardner presented no evidence to refute this testimony or to explain precisely

why the 2014 price was relevant in 2018 and 2019.

Laurie A. Ortolano Trust v. City of Nashua
Docket Nos.: 29472-18PT/29699-19PT
Page 9 of 18

When questioned regarding his use of the’2014 sale as a comparable, Mr. Gardner cited
“USPAP” (the Uniform Standards of Professional Appraisal Practice), and explained that he was
required to do so. [he board finds merit in the Taxpayer’s criticisms of his reasoning.» USPAP
Standards Rule 1-5 requires appraisers to “analyze all sales of the subject property that occurred
within the three (3) years prior to the effective date of the appraisal.” Additionally, The
Appraisal Foundation publishes advisory opinions (“AO”s) regarding specific USPAP
requirements, and AOQ-1 relates to the sales history of a property. It states:

The requirement for the appraiser to analyze and report sales history and related

information 1s fundamental to the appraisal process. Just as the appraiser must analyze

the details of pending and recent sales of comparable properties, the appraiser must also
take into account the various factors associated with all pending and recent sales of the
subject property itself. This is not to say that the agreed price in a pending or recent sale
of the subject property is necessarily representative of value as defined in the report, but
the appraiser’s failure to analyze and report these facts may exclude important
information from the sales comparison approach.
USPAP does not require, however, that an appraiser must, or even should, utilize a prior’sale as a
comparable sale, especially in this instance when the sale occurred four years prior to the:date.ofi
thé 2018 appeal and where there is ample, much more recent sales available to develop a credible
opinion.of market value.

In addition, Mr. Gardner used the sale of 51 Berkeley Street in both of the 2018.and.2019
appraisals. According to his own reports, this property contains more than double the grogs
living area of the Property (6,067 square feet compared to 3,016 square feet) on a-much larger lot
(2.14 acres compared to.15,000 square feet ) and it sold in June; 2017 for $1,150,000) This sale
price is 59% higher than the sale price of any other comparable sale utilized by either appraiser

or by KRT. In light of these substantial differences, Mr. Gardner’s testimony regarding the

reasons why he selected this property as a sale comparable was not credible.

Laurie A. Ortolano Trust v. City of Nashua
Docket Nos.: 29472-18PT/29699-19PT
Page 10 of 18

In brief, the board finds Mr. Gardner’s use of the prior sale of the Property and the sale of
51 Berkeley Street to be questionable at best. Mr. Gardner would have arrived at much lower
market value conclusions had he not chosen to use those sales as comparables.

Mr. Gardner also testified he did not utilize the sale of 45 Berkeley Street that sold in
July, 2017 for $559,900. Ms. Ortolano testified this is the “sister” to her Property: i.e., designed
by the same architect and similar in age, size, quality, condition, location. Mr. Gardner testified
he did not use it because it was a “private sale” and therefore was “not arm’s-length.” Mr.
Gardner, however, is mistaken in his belief that private sales are always not arm’s length and
therefore their sale prices do not represent market value. So-called “private sales” are those that
are not listed on a multiple-listing service; non-arm’s length sales are those that are sold between
parties that have some sort of relationship and the resulting sale price does not represent market
value. The board finds the use of 45 Berkeley Street as a comparable is reasonable and, when
appropriate adjustments are made, generally supportive of the board’s market value findings.

The City placed some emphasis on the fact the Taxpayer did not appeal the assessments
on the Property for the years it owned the Property prior to tax years 2018 and 2019. The board
can place no weight on this fact because assessments are annual events and a taxpayer’s decision
not to challenge an assessment through the abatement and appeal process is not probative of the
proportionality of the assessment or a taxpayer’s agreement with it.

Finally, Ms. Ortolano testified at some length regarding her belief that the City’s
abatement process was flawed and that City employees were biased against her. The board finds
that although there is an ongoing, contentious relationship between the Taxpayer and the City
that is well-documented, both in the pleadings and the news media, the issues before the board

center on whether the Property was disproportionately assessed in 2018 and 2019 based simply

Laurie A. Ortolano Trust v. City of Nashua
Docket Nos.: 29472-18PT/29699-19PT
Page 11 of 18

on the probative market value evidence presented by the parties. Whether or not the City acted
in an arbitrary manner or in bad faith, as the Taxpayer contends, such contentions are not
sufficient to satisfy the Taxpayer’s burden of proving the Property was disproportionally
assessed. [See Porter v. Sanbornton, 150 N.H. 363, 371 (2003); cf. 2018 Request No. 1 and
2019 Request No. 1.] For these reasons, the board has limited its findings directly to the issue of
proportionality.?

For all of these reasons, the board finds the Taxpayer met its burden of proving the
assessments were disproportional in tax years 2018 and 2019. The appeals are therefore granted.

If the taxes have been paid, the amount paid on the value in excess of $592,500 for tax
year 2018 and $577,200 for tax year 2019 shall be refunded with interest at six percent per
annum from date paid to refund date. RSA 76:17-a. Until the City undergoes a general
reassessment or in good faith reappraises the property pursuant to RSA 75:8, the City shall use
the ordered assessment for subsequent years. RSA 76:17-c, | and II.

Any party seeking a rehearing, reconsideration or clarification of this Decision must file a
motion (collectively “rehearing motion”) within thirty (30) days of the clerk’s date below, not
the date this decision is received. RSA 541:3; Tax 201.37(a). The rehearing motion must state
with specificity all of the reasons supporting the request. RSA 541:4; Tax 201.37(b). A
rehearing motion is granted only if the moving party establishes: 1) the Decision needs
clarification; or 2) based on the evidence and arguments submitted to the board, the board’s

decision was erroneous in fact or in law. Thus, new evidence and new arguments are only

3 The voluminous record includes an accusation of “potential perjury” made on the Taxpayer’s behalf by its attorney
in the 2018 appeal after the close of the hearing on April 6, 2021. On April 22, 2021, he filed a “Petition to Reopen
Case or in the Alternative for a Rehearing” with the board. As discussed in the board’s May 14, 2021 Order in the
2018 appeal, the City filed an “Objection” resulting in the board’s denial of the petition for the reasons detailed in
that Order.

Laurie A. Ortolano Trust v. City of Nashua
Docket Nos.: 29472-18PT/29699-19PT
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allowed in very limited circumstances as stated in board rule Tax 201.37. Filing a rehearing
motion is a prerequisite for appealing to the supreme court, and the grounds on appeal are limited
to those stated in the rehearing motion. RSA 541:3 and RSA 541:6. Generally, if the board
denies the rehearing motion, an appeal to the supreme court must be filed within thirty (30) days
of the date on the board’s denial with a copy provided to the board in accordance with Supreme
Court Rule 10(7).

SO ORDERED.

BOARD OF TAX AND LAND APPEALS

Anne M. Stelmach, Clerk
Per Order of the Board