Justia Government & Administrative Law Opinion Summaries

Articles Posted in New Hampshire Supreme Court
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Plaintiff James Boyle, individually and as Trustee of the 150 Greenleaf Avenue Realty Trust, appealed, and defendant City of Portsmouth (City), cross-appealed, after a jury awarded Boyle damages for trespass and nuisance arising from the City’s sewer line on his property. On appeal, Boyle contended the trial court erred in: (1) determining as a matter of law that the City’s trespass began in 2013; and (2) excluding all evidence of future lost profits after 2016. The City argued the trial court erred in: (1) permitting Boyle’s lost profits claims to go to the jury and refusing to set aside the jury’s award; and (2) determining that the City did not have permanent rights in the sewer line. After review, the New Hampshire Supreme Court affirmed the trial court’s ruling that the City had only a revocable license in the sewer line, reversed, in part, the court’s rulings concerning the timing of Boyle’s damages, reversed the court’s ruling on Boyle’s lost profits claim and vacated the jury award, and remanded. View "Boyle v. City of Portsmouth" on Justia Law

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Plaintiff City of Portsmouth (City) appealed a superior court ruling that the City’s taking by eminent domain of 4.6 acres of land owned by defendants 150 Greenleaf Avenue Realty Trust and Minato Auto, LLC, was unlawful. On appeal the City argued the trial court erred in: (1) setting aside the taking based on a finding that the City did not set forth statutory authority for taking the wetlands; (2) determining that the City failed to demonstrate a reasonable present public need for taking the wetlands; (3) finding that the City’s taking of the sewer line in fee simple was improper and that the burden on the condemnee outweighed the public necessity; and (4) finding that the City’s purported improper motivation to end litigation with the defendants was a basis to set aside the taking. Finding no reversible error, the New Hampshire Supreme Court affirmed. View "City of Portsmouth v. 150 Greenleaf Avenue Realty Trust" on Justia Law

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Plaintiff Ventas Realty Limited Partnership (Ventas), appealed a superior court order denying its request for an abatement of the real estate taxes it paid defendant City of Dover (City), for the 2014 tax year. The subject real estate consists of a 5.15-acre site containing a skilled nursing facility serving both short-term and long-term patients, two garages, and a parking lot. At issue was the City’s April 1, 2014 assessment of the real estate at a value of $4,308,500. Ventas alleged that it timely applied to the City for an abatement of its 2014 taxes. The City presumably denied or failed to act upon the request, and Ventas, thereafter, petitioned the superior court for an abatement pursuant to RSA 76:17 (Supp. 2018), alleging that the City had unlawfully taxed the property in excess of its fair market value. Expert witnesses for both sides opined the property’s highest and best use was as a skilled nursing facility. The experts also agreed that the most reliable method for determining the property’s fair market value was the income capitalization method, although the City’s expert also completed analyses under the sales comparison and cost approaches. Both experts examined the same comparable properties and they also used similar definitions of “fair market value.” The main difference between the approaches of the two experts is that the City's expert used both market projections and the property’s actual income and expenses from 2012, 2013, and 2014 to forecast the property’s future net income, while Ventas' expert did not. Ventas' expert used the property’s actual income and expenses for the 11 months before the April 1, 2014 valuation date, without any market-based adjustments. Despite their different approaches, the experts gave similar estimates of the property’s projected gross income for tax year 2014. The experts differed greatly in their estimates of the property’s projected gross operating expenses for tax year 2014. All of Ventas’ arguments faulted the trial court for finding the City's expert's valuations more credible than its own expert's valuations. The New Hampshire found the trial court made numerous, specific findings which were supported by the record as to why it rejected Ventas' expert's appraisal. Accordingly, the Supreme Court upheld the trial court’s determination that Ventas' expert's appraisal failed to meet Ventas’ burden of proof. View "Ventas Realty Limited Partnership v. City of Dover" on Justia Law

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Respondent R.M. appealed a circuit court order that renewed his involuntary admission to New Hampshire Hospital for the purpose of allowing him to remain on a conditional discharge for a period of five years. Respondent was a 30-year-old man who had been hospitalized on multiple occasions as a result of schizophrenia. When respondent doesn't take his prescribed anti-psychotic medication, he becomes paranoid, violent, and suicidal. In addition, he experienced hallucinations, paranoid delusions, and difficulties with impulse control and exhibited “a serious level of aggression.” Respondent was first hospitalized in 2010 after voicing suicidal ideation, stating that he would be “better off dead.” Pertinent here, was admitted on an emergency basis again in February 2015 due to concerns of suicidal threats, incapacity, and his paranoid belief that people were conspiring against him. In early March 2019, a few weeks before the respondent’s three-year conditional discharge was set to expire, the local community mental health center filed a petition to renew his conditional discharge. On appeal, respondent challenged the sufficiency of the evidence and argued the five-year renewal was not the least restrictive treatment option. Finding no reversible error, the New Hampshire Supreme Court affirmed. View "In re R.M." on Justia Law

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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