Justia Government & Administrative Law Opinion Summaries

Articles Posted in New Hampshire Supreme Court

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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

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The Town of Lincoln, New Hampshire, appealed a Water Court order upholding a decision by the Department of Environmental Services (DES) ordering the town to repair the Pemigewasset River Levee. The Water Counsel determined the Town owned the levee pursuant to RSA 482:11-a(2013), and therefore was obligated to maintain and repair the levee. In support of its position, DES contends that, in the Assurance, the Town “agreed to take responsibility for the [l]evee’s ongoing maintenance and repair.”1 However, the fact that the Town undertook certain maintenance obligations in the Assurance does not mean that the additional obligations of “ownership” under RSA 482:11-a can or should be imposed upon the Town. The New Hampshire Supreme Court determined that the Water Council’s conclusion the Town “owned” the levee under RSA 482:11-a was dependent on flawed reasoning that Appeal of Michele, 168 N.H. 98 (2015) controlled the outcome of this case. The Supreme Court concluded the Town met its burden to show the Water Council was unreasonable. The Court did not decide the precise degree of ownership that made a person or entity an “owner” for the purposes of RSA 482:11-a, it held that the limited access easement held by the Town in this case fell short of that threshold. Because the Court’s holding on this issue was dispositive of this case, it declined to address the parties’ other arguments. View "Appeal of Town of Lincoln" on Justia Law

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Petitioner Steven Silva appealed a New Hampshire Personnel Appeals Board (PAB) decision that upheld decisions of respondent, the New Hampshire Department of Health and Human Services (DHHS), to suspend and subsequently terminate the petitioner’s employment. Petitioner began working at the New Hampshire Hospital in 1999. He was terminated from employment in 2015 for violating the hospital’s sexual harassment policy. In 2016, the PAB found that the petitioner’s 2015 termination did not comply with New Hampshire Administrative Rules, Per 1002.08(d) because DHHS did not provide the petitioner, prior to termination, with all of the evidence it relied upon to justify his termination, and, consequently, he was not given an opportunity to refute the evidence that led to his dismissal. For that reason, the PAB ordered DHHS to reinstate the petitioner retroactively to the date of his termination and award him back pay and benefits. Following the PAB’s order, DHHS resumed paying the petitioner but simultaneously placed him on suspension so that it could conduct a new investigation into the same sexual harassment allegations that formed the basis for the 2015 termination. In 2017, after completing its investigation, DHHS terminated the petitioner again. The petitioner appealed his suspension as well as his 2017 termination to the PAB, arguing that the PAB’s decision overturning his prior termination prevents DHHS from terminating or suspending him for the same conduct. After a hearing on the merits, the PAB upheld the suspension and subsequent termination. On appeal, petitioner argued the statutory reinstatement requirement in the Administrative Rules precluded DHHS from terminating him a second time for the same conduct which gave rise to his 2015 termination. The New Hampshire Supreme Court found that because the PAB’s decision overturning the 2015 termination was based upon DHHS’s failure to satisfy the requirements of Per 1002.08(d) prior to termination, it was not a final judgment on the merits for res judicata purposes. Therefore Silva's argument failed and the Supreme Court affirmed the PAB's decision. View "Appeal of Steven Silva" on Justia Law

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In December 2007, Kia Motors America, Inc. (Kia) and TS & A Motors, LLC d/b/a Kia of Somersworth (Somersworth) entered into a Dealer Sales and Service Agreement (Dealer Agreement), which governed the franchise relationship between the parties. Under this agreement, Somersworth was required to employ certain parts and service personnel. In 2011 and Kia sent a series of letters notifying Somersworth of perceived staffing and training deficiencies. These letters referenced Somersworth’s failure to meet technician training requirements in 2009 and 2010, to adequately staff and train personnel in its parts and service department, and to meet the minimum number of technicians required to participate in Kia’s “Optima Hybrid Program.” During Somersworth’s tenure as a dealer, Kia employees overseeing Somersworth made note of its high employee turnover rates. The Board determined that over the course of its operations as a dealer, Somersworth violated the provision of the Dealer Agreement that required certain parts and service personnel “on an almost constant basis.” Kia management worked with Somersworth to remedy its staffing deficiencies. It sent numerous written notifications to Somersworth referencing the inadequacy of its parts and service staffing, met with Somersworth to discuss its concerns over staffing, and gave Somersworth the “benefit of the doubt” when the dealer promised to hire the appropriate number of staff members. Somerset appealed a superior court decision to affirm a New Hampshire Motor Vehicle Industry Board ruling that Kia properly terminated its franchise agreement with Somersworth. Finding no reversible error, the New Hampshire Supreme Court affirmed the Board's decision. View "TS & A Motors, LLC v. Kia Motors America, Inc." on Justia Law