Justia Government & Administrative Law Opinion Summaries

Plaintiff New Hampshire Alpha of SAE Trust (SAE), appealed a superior court order upholding a Zoning Board of Adjustment (ZBA) decision in favor of defendant Town of Hanover (Town), that the use of SAE’s property at 38 College Street (the property) violated the Town’s zoning ordinance. SAE built the property in the late 1920s specifically to accommodate the Dartmouth College (College) chapter of the Sigma Alpha Epsilon fraternity. Fraternity members continuously occupied the property since 1931. SAE’s use of the property as a student residence was permitted as of right from the time the Town adopted its first zoning ordinance in 1931 until the ordinance was amended in 1976. Since the 1976 amendment, the property was zoned in the “‘I’ Institution” district. Student residences were not permitted as of right, but could be permitted by special exception. In February 2016, the College revoked its official recognition of SAE after learning that the national charter of the Dartmouth chapter had been suspended. As a result, the College no longer recognized the fraternity as a college-approved housing facility or provided insurance coverage. The College then notified the Town that it no longer recognized the fraternity as a student organization. In light of the College’s derecognition, the zoning administrator informed SAE that its use of the property as a student residence was now violating the zoning ordinance because it was not operating “in conjunction with an institutional use,” and, if continued, would subject SAE to daily fines. The New Hampshire Supreme Court affirmed the ZBA on all issues addressed except that of whether SAE itself qualified as an “Institution” in its own right under the zoning ordinance. As to that issue, the Court vacated and remanded for further proceedings. View "New Hampshire Alpha of SAE Trust v. Town of Hanover" on Justia Law

Petitioner Andrew Panaggio appealed a decision of the New Hampshire Compensation Appeals Board (board). Petitioner suffered a work-related injury to his lower back in 1991; a permanent impairment award was approved in 1996 and in 1997, he received a lump sum settlement. Petitioner continued to suffer ongoing pain as a result of his injury and has experienced negative side effects from taking prescribed opiates. In 2016, the New Hampshire Department of Health and Human Services determined that Panaggio qualified as a patient in the therapeutic cannabis program, and issued him a New Hampshire cannabis registry identification card. Panaggio purchased medical marijuana and submitted his receipt to the workers’ compensation insurance carrier for reimbursement. The respondent-carrier, CNA Insurance Company, denied payment on the ground that “medical marijuana is not reasonable/necessary or causally related” to his injury. The board denied his request for reimbursement from the respondent.On appeal, Panaggio argued the board erred in its interpretation of RSA 126-X:3, III, and when it based its decision in part on the fact that possession of marijuana is illegal under federal law. The New Hampshire Supreme Court reversed in part and remanded for further proceedings. Specifically, the Court determined that because the board found that Panaggio’s use of medical marijuana was reasonable, medically necessary, and causally related to his work injury, the board erred when it determined the insurance carrier was prohibited from reimbursing Panaggio for the costs of purchasing medical marijuana. The Court determined that because the board’s order failed to sufficiently articulate the law that supported the board’s legal conclusion and failed to provide an adequate explanation of its reasoning regarding federal law, it was impossible for the Court to discern the grounds for the board’s decision sufficient for it to conduct meaningful review. Accordingly, the case was remanded to the board for a determination of these issues in the first instance. View "Appeal of Panaggio" on Justia Law

Respondent, the biological mother of C.O. and G.L., appealed a circuit court order terminating her parental rights over the two minor children on the ground that she failed to correct the conditions that led to the circuit court’s finding that she neglected both children and abused G.L. She argued the circuit court erred in finding: (1) the New Hampshire Division for Children, Youth and Families made reasonable efforts to reunify her with her children after it terminated visits with her children; and (2) she failed to correct the conditions that led to the court’s finding of abuse and neglect because one of the circuit court’s conditions, that she accept responsibility for the underlying abuse, violated her constitutional right against self-incrimination. After review of the facts entered in the circuit court record, the New Hampshire Supreme Court found no abuse of discretion and affirmed. View "In re C.O.; In re G.L." on Justia Law

The New Hampshire Supreme Court accepted a petition in its original jurisdiction to determine whether the Superior Court erred in ordering the New Hampshire Secretary of State and the New Hampshire Attorney General, defendants in litigation pending before that court, to produce to plaintiffs in the litigation, the League of Women Voters of New Hampshire, the New Hampshire Democratic Party, and various individuals, the New Hampshire Centralized Voter Registration Database established pursuant to RSA 654:45 (Supp. 2018). The Supreme Court concluded the Database was exempt from disclosure by statute, and therefore vacated the trial court’s order. View "Petition of New Hampshire Secretary of State" on Justia Law

Plaintiffs David and Katherine Dietz appealed a superior court order that upheld a zoning board of adjustment (ZBA) decision for defendant Town of Tuftonboro, which granted intervenor Sawyer Point Realty, LLC (collectively with Sawyer Point Realty Trust, its predecessor in interest, Sawyer Point), two equitable waivers related to two additions Sawyer Point constructed on its house in violation of the Town’s zoning ordinance requiring a fifty-foot setback from Lake Winnipesaukee. Sawyer Point’s house was located along the shore of Lake Winnipesaukee and within the Town’s Lakefront Residential Zoning District (District); the Dietzes owned the abutting property, also within the District. In 1999, Sawyer Point added a second floor addition over the eastern portion of the first floor of its house, aware that the existing structure was located within the setback, and that a second floor addition would also be within the setback. Prior to construction, Sawyer Point submitted a building permit application to the Town containing a rough sketch of the existing house, which also showed that the house was situated less than fifty feet from the lake. The Town’s building inspector granted the building permit, noting the addition would cause “no change in footprint.” In 2008-2009, Sawyer Point constructed a second addition to its house, again receiving permission from the Town to construct. In February 2014, Sawyer Point commissioned a survey which revealed, in regard to the 2008 Addition, more of the new structure was within the setback than had been represented to the ZBA. In December 2014, the Dietzes, after learning of this discrepancy, sought injunctive relief against Sawyer Point, claiming that Sawyer Point had built within the setback without obtaining the required approvals, and requesting that the court order the removal of the unlawful construction. The New Hampshire Supreme Court concluded the trial court did not err when it sustained the ZBA and declined to weigh the cumulative effect of building within the lakefront setback throughout the Town. Moreover, relying on the evidence before it, the trial court agreed with the ZBA that there was little or no public benefit to be gained by correcting the violations. Because the Dietzes have failed to show that this finding was unreasonable or unsupported by the evidence, the trial court's decision was upheld. View "Dietz v. Town of Tuftonboro" on Justia Law

Petitioner Kyle Guillemette challenged a determination by the Administrative Appeals Unit (AAU) of the New Hampshire Department of Health and Human Services (DHHS) that the notice requirements set forth in RSA 171-A:8, III (2014) and New Hampshire Administrative Rules, He-M 310.07 did not apply when Monadnock Worksource notified Monadnock Developmental Services of its intent to discontinue providing services to petitioner because that act did not constitute a “termination” of services within the meaning of the applicable rules. Petitioner received developmental disability services funded by the developmental disability Medicaid waiver program. MDS was the “area agency,” which coordinated and developed petitioner’s individual service plan. Worksource provides services to disabled individuals pursuant to a “Master Agreement” with MDS. Worksource began providing day services to the petitioner in August 2012. On March 31, 2017, Worksource notified MDS, in writing, that Worksource was terminating services to petitioner “as of midnight on April 30.” The letter to MDS stated that “[t]he Board of Directors and administration of . . . Worksource feel this action is in the best interest of [the petitioner] and of [Worksource].” Petitioner’s mother, who served as his guardian, was informed by MDS of Worksource’s decision on April 3. The mother asked for reconsideration, but the Board declined, writing that because the mother “repeatedly and recently expressed such deep dissatisfaction with our services to your son, the Board and I feel that you and [petitioner] would be better served by another agency . . . .” Thereafter, petitioner filed a complaint with the Office of Client and Legal Services alleging that his services had been terminated improperly and requesting that they remain in place pending the outcome of the investigation of his complaint. Because the New Hampshire Supreme Court concluded that the AAU’s ruling was not erroneous, it affirmed. View "Petition of Kyle Guillemette" on Justia Law

Petitioner Lakes Region Water Company, Inc. (Lakes Region), appealed a New Hampshire Public Utilities Commission (Commission) order requiring Lakes Region to refund a second base charge it had imposed on its customer, Robert Mykytiuk, and prohibiting it from “imposing such charges unless and until they are included in the company’s tariff.” Lakes Region learned that Mykytiuk had constructed an additional structure on his property. To supply the new structure with water, Mykytiuk tapped into his primary residence’s service connection. Shortly after learning of the new construction, Lakes Region sent Mykytiuk an application for new service for the additional structure and requested to inspect the water service connection. Despite concluding that the new structure required a separate service connection, Lakes Region chose not to install one at that time. Rather, Lakes Region began billing Mykytiuk for an additional “base charge,” which referred to the “[m]inimum charge per customer per quarter” scheduled in Lakes Region’s tariff. Mykytiuk complained to the Commission, asserting that he was not required to have a second service connection. The Commission treated the matter as a formal complaint and held a hearing on the merits. At the hearing, Mykytiuk argued that Lakes Region could not charge him a separate base charge or require him to install a separate meter for the additional structure because neither was provided for in Lakes Region’s tariff. Finding no reversible error in the Commission’s order, the New Hampshire Supreme Court affirmed. View "Appeal of Lakes Region Water Company, Inc." on Justia Law

Petitioners the New England Police Benevolent Association, Inc. (NEPBA) and the State Employees’ Association of New Hampshire, Inc., SEIU, Local 1984 (SEA), appealed a decision of the New Hampshire Public Employee Labor Relations Board (PELRB) dismissing their unfair labor practice complaints filed against respondent State of New Hampshire. After several bargaining sessions, the State rejected all wage proposals, explaining that “the Governor was not offering any wage increases . . . given anticipated increases in prescription drug costs in the healthcare market.” As a result, the Teamsters and the NHTA declared an impasse. Although no other unions declared an impasse, the State took the position that all five unions must proceed to impasse mediation. The SEA challenged the State on this position, and subsequently, petitioners each filed complaints with the PELRB. During the pendency of these complaints, the State advised all five unions that it would select a mediator and continued to assert that all of the unions must participate in impasse mediation “because the issues to be resolved affected all bargaining units.” The PELRB consolidated the petitioners’ complaints and found in a 2-1 vote that RSA 273-A:9, I, “requires all five unions to utilize the Union Committee format at the bargaining table and during impasse resolution proceedings until such time as the common terms and condition[s] of employment are settled.” The PELRB, therefore, dismissed the complaints and ordered the petitioners to coordinate with the other unions “to determine the forum in which negotiations will go forward.” Petitioners unsuccessfully moved for rehearing, and this appeal followed. Finding no reversible error in the trial court's dismissal of petitioners' complaints, the New Hampshire Supreme Court affirmed the PELRB. View "Appeal of New England Police Benevolent Association, Inc." on Justia Law

Plaintiff, the Trustees of Dartmouth College, appealed a superior court order upholding the denial of its application for site plan approval by the Town of Hanover’s Planning Board for the construction of an Indoor Practice Facility (IPF). The planning board denied approval of the application upon finding that it failed to comply with three general considerations of Hanover’s site plan regulations. The superior court upheld the planning board’s decision following a hearing at which several Hanover residents owning properties abutting the proposed site intervened to defend the board’s decision (abutters). After review, the New Hampshire Supreme Court reversed and remanded because the evidence did not reasonably support the trial court’s findings. The certified record confirmed the board based its denial of Dartmouth’s application upon subjective and personal feelings and the trial court unreasonably adopted a rationale not supported by the record to affirm the board’s decision. View "Trustees of Dartmouth College v. Town of Hanover" on Justia Law

Petitioner Sandra Brown, DVM, appealed an October 2017 decision by the New Hampshire Board of Veterinary Medicine (Board) suspending her license to practice veterinary medicine for six months and further prohibiting her, following the six-month suspension and until December 31, 2021, from dispensing, possessing, or administering controlled substances (other than euthanasia solution) in her practice. On appeal, she argued the Board lacked subject matter jurisdiction to discipline her for violating the Controlled Drug Act because the Board was not one of the agencies statutorily authorized to enforce that act. She also argued that the Board lacked jurisdiction to subject her practice to post-hearing inspections. "Although we need not decide the full scope of the Board’s jurisdiction to discipline a veterinarian for the violation of 'all laws,'" the New Hampshire Supreme Court concluded the Board had subject matter jurisdiction to discipline petitioner for violating the Controlled Drug Act. Furthermore, the Court found documents in the certified record suggested that petitioner agreed, at the very least implicitly, to the inspections as part of a settlement agreement with the Board. Therefore, the Board had jurisdiction to subject her practice to post-hearing inspections. View "Appeal of Sandra Brown, DVM" on Justia Law