Justia Government & Administrative Law Opinion Summaries

The petitioner, Aspen Contracting NE, LLC (Aspen), appealed the decisions of the Administrative Hearing Committee (Committee) and the Appeal Tribunal for the New Hampshire Department of Employment Security (DES), as both were sustained by the DES Appellate Board, finding the claimants to be employees and Aspen to be an employer in New Hampshire subject to RSA chapter 282-A. Upon review of the Committee's and the Appeal Tribunal's administrative records, the Supreme Court affirmed. View "Appeal of Aspen Contracting NE, LLC" on Justia Law

Petitioner Casey B. Moore appealed a decision of the appeal tribunal (tribunal), as affirmed by the appellate board, of the New Hampshire Department of Employment Security (DES) finding him ineligible for unemployment benefits because he voluntarily left his job without good cause. Moore began working as an arborist in 2008 for Guillemette Tree Services (GTS), a small business owned by Ken Guillemette. He worked part-time at a rate of $31.25 per hour, sometimes getting paid as an employee of GTS and sometimes as an independent contractor. Moore and Guillemette had a dispute about when Moore would be paid for work he had previously performed. The following Saturday, Moore met with Guillemette to collect his wages, which Guillemette paid partially by cash and partially by check. He also issued Moore a written warning for failing to show up at work on the previous day. Moore, however, claimed he was unaware that he had been required to work that day. The next Monday, Moore arrived at Guillemette’s house early in the morning to begin that day’s work. Before they started work, however, Moore told Guillemette that he wanted to "finish our conversation from Saturday," and stated that he wished to continue working for GTS as a subcontractor for $51.25 per hour. Guillemette expressed frustration and said, "I’ll have to think about it." He then asked Moore, "So what’s going on for today?" Moore responded that he would work as soon as Guillemette hired him as a subcontractor. Moore then left, and there was no further contact between them. In this case, the Supreme Court found that Moore’s own testimony established that he voluntarily quit working for GTS, and that Moore presented no evidence to support his claim that Guillemette fired him: "to the contrary, Moore admitted that Guillemette was 'frustrated' and 'all ticked off' when faced with the choice of either acceding to Moore’s request for a significant pay raise or losing him as an employee altogether." View "Appeal of Moore" on Justia Law

The respondents, Malborn Realty Trust and its trustee, Daniel Osborn, appealed a superior court order that enjoined Osborn from occupying property in Atkinson because he lacked an occupancy permit and that imposed a civil penalty for this violation. Petitioner Town of Atkinson cross-appealed the trial court’s failure to award it attorney’s fees. Upon review of the matter, the Supreme Court affirmed the trial court’s issuance of the injunction, modified its imposition of civil penalties, reversed its denial of attorney’s fees, and remanded. View "Town of Atkinson v. Malborn Realty Trust" on Justia Law

The Supreme Court granted an interlocutory appeal of a superior court order that denied a motion to dismiss filed by the Town of Sugar Hill (Town). The superior court transferred the following issue for the Court's review: Whether RSA 76:16 requires all landowners to sign and certify their applications for abatement, in whichever form such applications take; that they have a "good faith basis and the facts in the application are true" before they may appeal any assessment decision of a municipality to the superior court or to the BTLA [Board of Tax and Land Appeals], especially when the facts show a knowing and purposeful choice not to sign said application. Upon review of the facts and record of this case, the Supreme Court concluded that, although the Town lawfully denied the petitioner's application based upon its lack of signature and certification, the superior court may nevertheless review the Town's denial to determine whether review by the Town on the merits is appropriate in the circumstances. Accordingly, the Court remanded the case for further proceedings.

Petitioners Professional Fire Fighters of Wolfeboro, IAFF Local 3708, president of the union and several firefighters appealed a superior court order that dismissed their suit against Respondent Town of Wolfeboro. The suit arose from the parties' negotiation of a new collective bargaining agreement (CBA). The Union had ever been certified by the New Hampshire Public Employee Labor Relations Board (PELRB) as a bargaining unit. In July 2010, the parties met and agreed on ground rules governing the conduct of their future negotiations, including that "[a]fter October 1, 2010, either party [could] request mediation of the outstanding issues." Shortly thereafter, however, the negotiations broke down. At an August 2010 meeting, the Town's Board of Selectmen voted to rescind its recognition of the Union. The petitioners filed a verified petition for an ex parte temporary restraining order against the Town and requested temporary and permanent injunctive relief. After a hearing, the trial court granted the petitioners' requested temporary restraining order, and scheduled the matter for further hearing. The Town moved to dismiss the entire proceeding. Following a hearing, the trial court granted the Town's motion and vacated its temporary restraining order. The petitioners unsuccessfully moved for reconsideration. Upon review of the matter, the Supreme Court held that the portion of RSA 31:3 which grants municipalities the right to recognize unions and enter into collective bargaining agreements was superseded by the enactment of the PELRA, and, therefore, the Town had no authority to recognize the non-PELRB-certified Union. Accordingly, the agreement, as well as the subsequent agreements, were ultra vires contracts and wholly void. The Court affirmed the superior court's decision to dismiss Petitioners' case.

Appellant Pasquale Franchi appealed a superior court order that denied his motion in limine to preclude certain expert testimony. This case arose from an eminent domain proceeding. There was no dispute that there was a taking of Appellant's property, and that he was entitled to compensation. Rather, Appellant contended that certain errors made both before and at trial required the Supreme Court's review of the compensation he was due. Several of Appellant's challenges pertained to testimony of the State's expert, a certified commercial property appraiser. Appellant moved in limine to exclude the appraiser's testimony, arguing that pursuant to New Hampshire's rules of procedure, the second of the appraiser's reports was irrelevant and did not meet the threshold of reliability. Upon review of the issues Appellant raised on appeal, the Supreme Court concluded the trial court made no errors in its holding, and accordingly affirmed.

Petitioner Merriam Farm, Inc. appealed a superior court's decision to uphold the denial of its application for a building permit by the zoning board of adjustment (ZBA) of the Town of Surry. In 2009, Merriam Farm applied for a permit to construct a single-family home on a three-acre parcel of land. Under the Town's zoning ordinance, 200 feet of frontage on a public street was required to build. The ZBA determined that the frontage to the property had been closed since 1971 "subject to gates and bars for the purpose of preventing development in this area." Upon review, the Supreme Court found no error in the ZBA's nor the superior court's order to deny the building permit, and accordingly affirmed those decisions.

Respondent City of Concord appealed a superior court order that denied it summary judgment in favor of Petitioner EnergyNorth National Gas (d/b/a National Grid NH, or "National Grid"). The City argued that the trial court erroneously determined that RSA 231:185 (2009) and RSA 236:11 (2009) preempted the City's ordinance authorizing it to charge certain roadway fees. The issue between the parties arose from National Grid's desire to excavate certain streets to install, maintain or replace its underground pipes that delivered natural gas. The fees covered damage for damages arising from the excavation. Upon review, the Supreme Court concluded that granting summary judgment in favor of National Grid was in error. The City argued that its roadway fees are consistent with the pertinent statutes because they "cover[ ] maintenance costs to repair the roadway after it has been initially patched, which [are] used to restore the excavated roadway to the condition that existed prior to the excavation." The Court was not persuaded that when the legislature enacted the statutes at issue, it made any assumption or finding, implied or otherwise, as to whether repaving a paved excavated roadway restored the roadway's original life expectancy. The Court was thus left with a factual dispute whether patching an excavated roadway with new pavement diminished or restored its original life expectancy. Because of that "genuine issue of material fact," the Court remanded the case for further proceedings.

This case came before the Supreme Court from an interlocutory transfer without ruling from the superior court on the following question: "Does the Due Process Clause of the New Hampshire Constitution (Part I, Articles 2 and 15) or the Fourteenth Amendment of the Federal Constitution require the appointment of counsel for an indigent parent from whom the State seeks to take custody of a minor child based on allegations of neglect or abuse?" Parents Larry and Sonia M. were served with petitions by which the New Hampshire Division for Children, Youth and Families (DCYF) sought custody of their two minor children C.M and A.M. DCYF alleged that the parents were neglecting their children by failing to provide a safe and sanitary home and adequate supervision and by exposing them to domestic violence in the form of threatening and intimidating behaviors by the father. An adjudicatory hearing was held at which the parents were represented by appointed counsel. The court issued an order maintaining legal custody of the children with DCYF and directing the parents to undertake certain measures before the children might be safely returned to them. Each parent filed an appeal to superior court contending that without appointed counsel, their protected liberty interest in raising their children was threatened. Upon review, the Supreme Court concluded that while due process did not require that counsel be appointed for indigent parents in every proceeding (such as the proceeding at issue in this case), a determination of whether appointed counsel is necessary to adequately reduce the risk of erroneous deprivation should be made on a case-by-case basis in the first instance by the trial court. The Supreme Court remanded the case back to the superior court to make that determination.

Petitioner Property Portfolio Group, LLC (PPG) appealed a superior court order which upheld a decision of the planning board of Respondent Town of Derry to grant applicant MTM Realty, LLC a waiver from a provision of the town's site plan regulations. Pursuant to the town’s site plan regulations, solid waste storage areas are required to be at least twenty-five feet from any property boundary. In 2010, as part of an application for further site plan determination, MTM submitted a request for a waiver from this requirement, seeking permission to move its dumpsters closer to its boundary with PPG which was ultimately granted. PPG and another abutter appealed to superior court. Finding no error in the superior court's judgment, the Supreme Court affirmed the decision, concluding "no extended consideration" of this case was required.