Justia Government & Administrative Law Opinion Summaries

Articles Posted in New Hampshire Supreme Court
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Plaintiffs New England Backflow, Inc. (NEB) and Paul Whittemore, appealed a superior court order dismissing several of their claims against defendants the New Hampshire Office of the Fire Marshall (OFM) and Jeremy Cyr, in his official capacity as chief inspector of OFM, for failure to state a claim upon which relief may be granted. Specifically, plaintiffs challenged the trial court’s dismissal of their declaratory judgment requests and their claims of unconstitutional taking, malicious prosecution, and abuse of process. Whittemore started NEB, which installed, repaired, tested, and replaced backflow prevention devices, also known as backflow preventers, for private and public entities. OFM was tipped off by a licensed plumber NEB might be plumbing without a license, which lead to this suit against NEB and Whittemore. Plaintiffs argued to the New Hampshire Supreme Court the trial court erred by: (1) concluding plaintiffs’ declaratory judgment requests were inconsistent with the applicable statutory language without holding an evidentiary hearing; (2) ruling plaintiffs’ request for declaratory judgment relating to a cease and desist order issued by OFM was moot; (3) concluding that Whittemore did not have a vested right to perform his professional work necessary to support plaintiffs’ takings claims; and (4) ruling that plaintiffs failed to state a claim for malicious prosecution and abuse of process. The Supreme Court affirmed the trial court’s order because the declarations plaintiffs sought were inconsistent with the plain and ordinary meaning of the relevant statutory language, their request for the cease and desist declaration was moot, and plaintiffs’ remaining claims failed to state a claim upon which relief may be granted. View "New England Backflow, Inc. v Gagne" on Justia Law

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Petitioner appealed a circuit court order denying her petition to modify or terminate the guardianship of respondents over her minor biological daughter, K.B. The guardianship was granted by a court of the State of Connecticut in 2010. Because the New Hampshire Supreme Court concluded the circuit court did not have jurisdiction over this petition to modify another state’s child-custody determination, it vacated and remanded with instructions to dismiss the petition. View "In re Guardianship of K.B." on Justia Law

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Plaintiff Working Stiff Partners, LLC, appealed a superior court order upholding a decision of the Zoning Board of Adjustment (ZBA) for defendant City of Portsmouth (City), and denying injunctive relief. Plaintiff renovated the subject property and planned to make it available for short-term rentals via websites such as Airbnb, Homeaway and VRBO. Before renovations were completed, the City wrote to plaintiff’s owners to notify them that using the property for short-term rentals may not be permitted in the property’s zoning district, and recommended that they contact the City’s Planning Department to confirm that such a use would be permitted. Despite the City’s letter, plaintiff continued renovating the property and eventually began marketing it on Airbnb. The Airbnb listing offered daily rates, and stated that the property was suitable for family parties, wedding parties, and corporate stays. It also stated that the property could accommodate up to nine guests. As of November 2017, the property was occupied by guests 17% of the year. The complaints were not related to guest misbehavior, loud noises, or other disturbances. Rather, the complaints expressed categorical opposition to the use of the property for short-term rentals. The superior court ruled that plaintiff’s use of its property for short-term rentals was not permitted as a principal use in the zoning district in which the property was located, and that the definition of “[d]welling unit” contained in the City’s zoning ordinance was not unconstitutionally vague as applied to the plaintiff. Finding no reversible error in that judgment, the New Hampshire Supreme Court affirmed. View "Working Stiff Partners, LLC v. City of Portsmouth" on Justia Law

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Plaintiffs Denis Girard and Florence Leduc appealed a superior court order upholding a decision of the Town of Plymouth Planning Board denying their subdivision application. They argued the trial court erred in upholding the planning board’s denial of their application because: (1) the board “engaged in impermissible ad hoc rule” and “decision making” when it relied upon an “overly broad” subdivision regulation; (2) the board relied on a subdivision regulation that did not specifically authorize the board to regulate wetlands; (3) the board’s regulation of wetlands is preempted by State statute; (4) the trial court unreasonably relied on certain evidence provided by a wetlands scientist; (5) the board’s decision to reject the application based upon the proposed subdivision’s impact on the wetlands was unreasonable; and (6) the board violated New Hampshire law by discussing the application at a hearing without notice to the applicants or the public. Finding no reversible error, the New Hampshire Supreme Court affirmed. View "Girard v. Town of Plymouth" on Justia Law

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Petitioner Wayne Preve appealed a New Hampshire Department of Labor (DOL) ruling that he failed to prove that respondent Town of Epsom (Town) violated the New Hampshire Whistleblowers’ Protection Act. Petitioner worked for the Town’s Police Department since 1997, and served as the Chief of Police since 2004. In 2017, an incident occurred between an attorney and a Town police officer at the Circuit Court in Concord. Specifically, the attorney made a comment to the officer that insinuated the officer was a “sex offender.” The officer later informed petitioner of the attorney’s comment. Petitioner testified at the DOL hearing that, as a result of this incident, as well as additional alleged incidents between the attorney and the Town’s Police Department, petitioner believed that the attorney posed an “officer safety” issue. Petitioner decided to file a complaint against the attorney: he collected all of the data relating to the attorney in the police department’s computer database, and sent these materials to the Judicial Conduct Committee (JCC), rather than the disciplinary body that oversees attorneys, the Professional Conduct Committee (PCC). A copy was also sent to the attorney. The attorney complained to the Town about petitioner’s conduct, threatening to sue the Town as a result of, among other things, petitioner’s disclosure of private information regarding the attorney and his family. The JCC returned the materials to the Town, stating that the JCC was not the correct entity with which to file a complaint regarding an attorney. The Town engaged Municipal Resources Inc. (MRI) to investigate petitioner’s conduct. The Town also instructed petitioner not to re-file the materials with the PCC. MRI issued a report concluding that some of petitioner’s actions were improper and may have violated certain statutes. The Town subsequently disciplined petitioner by suspending him for one week without pay and requiring him to attend training. After appealing this disciplinary action through the Town’s internal procedures, the petitioner filed a complaint with the DOL, arguing that the Town wrongfully retaliated against him for reporting the attorney in violation of the Whistleblowers’ Protection Act. The DOL essentially found that the petitioner had not produced “direct evidence that retaliation played a substantial role” in the Town’s decision to discipline him. The New Hampshire Supreme Court found the record supported the DOL’s conclusion. “As the DOL emphasized, the Town did not immediately discipline the petitioner upon learning that he filed a complaint regarding the attorney with the JCC; rather, the Town engaged a third-party, MRI, to conduct an investigation into the petitioner’s actions before imposing discipline. . . . Thus, we cannot say the DOL erred …in ruling petitioner failed to prove that the Town violated the Whistleblowers’ Protection Act.” View "Appeal of Preve" on Justia Law

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Defendants, the City of Rochester (City) and Michael and Stacey Philbrook, appealed superior court orders : (1) requiring the City to reacquire title to a parcel of land it previously conveyed to the Philbrooks and transfer title to plaintiffs Donald and Bonnie Toy; and (2) awarding attorney’s fees to the Toys. In May 2015, the City took title to a 1.8-acre parcel of land located in Rochester (Lot 54). The Philbrooks owned a lot adjacent to Lot 54. The Toys owned a manufactured housing park known as “Addison Estates” and an additional, smaller lot located nearby. In 2015, the Toys purchased an additional lot, which shared boundaries with Addison Estates and Lot 54. Lot 54 was located in a zoning district in which the development or expansion of manufactured housing parks was prohibited. The Rochester City Council voted to sell Lot 54 through an advertised sealed bid process. The Toys submitted the highest bid and represented that they intended to “annex the property” to their adjacent property. The Philbrooks submitted the lowest bid stating that they intended to “[a]dd this abutting land to [their] land.” The city council reached a “‘consensus’” that the City would sell Lot 54 to the Toys, provided that they agreed to a restrictive covenant in the deed prohibiting the owner of Lot 54 from ever using the property for manufactured housing park development or to expand Addison Estates. The city council also agreed that, if the Toys did not accept the restrictive covenant, it would sell the lot to the Philbrooks. The Toys’ attorney declined purchase with the covenant. The City then sold the property to the Philbrooks with a warranty deed that did not contain any restrictive covenants. The Toys filed a complaint against the City and the Philbrooks, seeking damages, a declaration that the Toys were “lawfully entitled to the right of first refusal” on Lot 54, an order concluding that the City “breached the Conditions of Sale by transferring” Lot 54 to the Philbrooks and requiring the Philbrooks to convey Lot 54 to the Toys, and attorney’s fees. The defendants moved to dismiss. Although, ideally, the City should have included the restrictive covenant in the Notice of Sale or the Conditions of Sale, the New Hampshire Supreme Court disagreed with the trial court that the City could not subsequently revise the terms of sale to include the restrictive covenant. However, the Supreme Court agreed with the trial court that, in contravention of controlling case law, the City failed to treat the Toys “fairly and equally” when it did not require the Philbrooks to accept the same restrictive covenant demanded of the Toys. Therefore, the City's covenant requirement was “outside the bounds of fairness.” Accordingly, the Supreme Court affirmed the trial court’s conclusion that the City did not treat the Toys “fairly and equally” — but only to the limited extent that the City failed to require that other bidders, including the Philbrooks, accept the restrictive covenant. The attorney fee award was vacated and the matter remanded for further proceedings. View "Toy v. City of Rochester" on Justia Law

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Plaintiff Curtis Ridlon was formerly employed as an investment adviser. In April 2017, the New Hampshire Bureau of Securities Regulation (Bureau) brought an administrative enforcement action against Ridlon, alleging that he charged clients approximately $2.8 million in improper fees. The relief sought by the Bureau included civil penalties of up to $3,235,000, restitution in the amount of $1,343,427.20, and disgorgement of up to $1,513,711.09. By agreement of the parties, Ridlon filed a declaratory judgment petition in the trial court asserting that he was constitutionally entitled to a jury trial and seeking to enjoin the administrative proceedings from continuing. In response, the Bureau filed a motion to dismiss. The trial court denied the Bureau’s motion, ruling that Part I, Article 20 of the State Constitution afforded Ridlon the right to a jury trial, and enjoining any further administrative proceedings by the Bureau. The New Hampshire Supreme Court disagreed with the superior court’s judgment: “the cases cited by the trial court, and relied upon by Ridlon on appeal for the proposition that claims involving statutory penalties above the constitutional limit obligate a trial by jury, do not address the applicability of the jury trial right under the State Constitution to what we have described as “purely statutory” causes of action. When assessing the right to a jury trial in such circumstances, we have explained that we must “consider the comprehensive nature of the statutory framework to determine whether the jury trial right extends to the action. . . . the statutory procedures established by the legislature for the regulation of securities ‘militate[ ] against any implication of a trial by jury.’” The trial court’s judgment was reversed and the matter remanded for further proceedings. View "Ridlon v. New Hampshire Bureau of Securities Regulation" on Justia Law

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Petitioners Northern Pass Transmission, LLC and Public Service Company of New Hampshire d/b/a Eversource Energy (PSNH), appealed the New Hampshire Site Evaluation Committee’s decision denying their application for a “Certificate of Site and Facility” (certificate) for the siting, construction, and operation of a high voltage transmission line (HVTL) and associated facilities from Pittsburg to Deerfield (the project). A subcommittee of the Evaluation Committee held 70 days of adjudicative hearings between April and December 2017. It received testimony from 154 witnesses and received 2,176 exhibits. At the conclusion of its proceedings, the Subcommittee voted unanimously that petitioners “failed to demonstrate by a preponderance of evidence that the Project will not unduly interfere with the orderly development of the region” and denied the application on February 1, 2018. The New Hampshire Supreme Court reviewed the record and concluded the Subcommittee’s findings were supported by competent evidence and ere not erroneous as a matter of law. Accordingly, the Court held petitioners did not sustain their burden on appeal to show that the Subcommittee’s order was unreasonable or unlawful. View "Appeal of Northern Pass Transmission, LLC & a." on Justia Law

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Plaintiff Fred Teeboom appealed a superior court order dismissing his claims for declaratory, injunctive, and mandamus relief based upon the court’s determination that the budget spending cap in the Nashua city charter was unenforceable because it violated state law. In April 2017, by a vote of nine to six, the Nashua Board of Aldermen (board) passed an ordinance exempting the entire wastewater treatment fund from the combined annual municipal budget. Later that month, Nashua’s mayor proposed a budget for fiscal year 2018 that, consistent with the ordinance, removed the wastewater treatment fund from the spending cap calculation. In so doing, the mayor did not adjust for the fact that the 2017 combined annual municipal budget included $8.1 million of wastewater treatment funds that were not included in the proposed 2018 combined annual municipal budget. This process had the effect of allowing the mayor to allocate a significant amount of additional funds to other areas without running afoul of the spending cap. On the surface, the proposed 2018 combined annual municipal budget appeared to comply with the spending cap. The maximum allowable budget pursuant to the cap was $267,517,084, and the 2018 combined annual municipal budget was $265,598,979. Faced with a proposed 2018 combined annual municipal budget purporting to be $1,918,105 below the spending cap, the board voted, ten to five, to adopt that budget. Teeboom filed this lawsuit against the City of Nashua (City), asking the trial court to enforce the spending cap provision on the ground that the ordinance exempting the wastewater treatment fund from the combined annual municipal budget violated that provision. The New Hampshire Supreme Court affirmed the trial court's determination that the City’s spending cap was unenforceable because it did not contain an override provision. View "Teeboom v. City of Nashua" on Justia Law

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Plaintiff Ron L. Beaulieu & Company appealed a superior court order affirming the New Hampshire Board of Accountancy. The Board suspended plaintiff’s license to do business in New Hampshire for three years and imposed a $5,000 fine after concluding plaintiff committed professional misconduct by failing to retain work papers and records for five years and by failing to properly conduct auditing services for Tri-County Community Action Program (TCCAP) from 2008-2011. Finding no reversible error in the superior court’s judgment, the New Hampshire Supreme Court affirmed. View "Ron L. Beaulieu & Company v. New Hampshire Board of Accountancy" on Justia Law