Justia Government & Administrative Law Opinion Summaries

Respondent Richard Townsend, appealed a superior court order that: (1) granted summary judgment in favor of the petitioner, Town of Barrington (Town), on its claims that respondent used his property as a campground and his barn as a dwelling without proper Town approvals; and (2) awarded attorney's fees to the Town. In September 2008, the motor home in which the respondent had been living sustained damage from an electrical fire rendering it uninhabitable. Following the fire, he moved into his barn, which he described as "adequate for emergency living quarters." The barn is a two-story structure with a workshop on the lower level and the respondent's office on the upper level. The barn has insulation, sheetrock, carpet, electricity, plumbing, two heating systems, and central air conditioning. The second floor also has restaurant kitchen equipment, a sink, a bed, a futon, a game table, and massage and fitness equipment. In March 2009, the Town sent the respondent a notice of zoning violation/cease and desist order. The respondent replied that although he had not yet completed the repairs to his fire-damaged RV, he would "move the unfinished home from the barn to appease the town." He asserted that he had moved out of the barn by April 1, 2009. The Town asserted that it sent a second letter to the respondent in May 2009, "reiterating the violations and notifying [him] that court action would be taken if he failed to come into compliance." It commenced that action in July for preliminary and permanent injunctions, civil penalties, and attorney's fees. The respondent brought a number of counterclaims alleging, among other things, bad faith by the Town's code enforcement officer and police chief. The Town moved for summary judgment. The trial court granted the Town's motion. On appeal, the respondent argued that the trial court erred in granting summary judgment on the code violation issues because "[m]aterial issues of fact existed regarding [his] use of his property and barn." He also argued that the trial court erred in awarding attorney's fees to the Town. Finding no error, the Supreme Court affirmed. View "Town of Barrington v. Townsend" on Justia Law

Petitioners J.K.S. Realty, LLC and L.J.J. Realty, LLC, appealed a superior court ruling that Respondent City of Nashua did not take their property by inverse condemnation. Petitioners are two trusts that owned as tenants-in-common a 26.8 acre parcel of land that was originally purchased in 1980 for development purposes. The northern section of the property was in the area of a planned "Board Street Parkway." In 1983, Petitioners successfully petitioned to have the property rezoned to prepare the property for sale to a developer. Since 1998, they made numerous unsuccessful attempts to sell the property or any portion thereof. The last purchase and sale agreement was entered into in 2002, for sale of the entire property with a closing in April 2004. At some point, the buyer learned that the City was unsure whether it would take the property for the parkway and asked the petitioners for an extension until he learned what the City intended to do. The petitioners decided to keep the property until it was resolved whether the City was going to take the property and, as a result, the sale did not go through. Since 2004, the petitioners have not marketed the property. However, they have harvested timber on the property for a profit and there was testimony that, unless prohibited by zoning regulations, the petitioners "would have been able to undertake" building "single-family residences, . . . conservation subdivisions, modular homes, manufactured homes, elderly housing, commercial uses, and multi-family developments." In 2009, the petitioners filed a petition for inverse condemnation, requesting that the trial court rule that the City took the property by inverse condemnation in 2004, and sought damages, including but not limited to, the fair market value of the property on that date. They alleged that the delays and continuing uncertainty regarding the parkway deprived them of all economically viable use of their property as of April 2004, when the last purchase and sale agreement fell through. Finding that the trial court properly declined to rule that the property was taken by inverse condemnation, the Supreme Court affirmed. View "J.K.S. Realty, LLC v. City of Nashua " on Justia Law

Plaintiffs Kenneth Bond and Deborah Thibault, on behalf of themselves and a class of others similarly situated, appealed a superior court order granting summary judgment to the defendants, the City of Manchester and Paul Martineau in his official capacity as Commissioner of the Manchester Welfare Department (collectively, the City). In January 2010, the plaintiffs applied for general assistance from the City pursuant to RSA chapter 165. See RSA 165:1, I (2002). On February 24, 2010, the City approved $140.00 per week in rental assistance. On March 18, 2010, the City suspended this assistance for seven days because of the plaintiffs' failure to provide certain documentation, including that which related to $30 the plaintiffs used to buy gas for a vehicle. The City lifted this suspension on March 25, 2010, noting that the plaintiffs were "unable to show compliance with the $30 purchase of vehicle gas that [they] stated [they] had previously purchased through an alternate financial resource." On April 9, 2010, the City revoked an April 8 voucher and denied the plaintiffs all assistance for six months because they had misrepresented information related to their vehicle. The plaintiffs petitioned the superior court to enjoin the City from suspending their assistance. Because the Supreme Court held that RSA 165:1-b and the Guidelines pertaining to rental assistance actually conflict, the Court reversed the trial court's grant of summary judgment in favor of the City and remanded the case for further proceedings. View "Bond v. Martineau" on Justia Law

Petitioners the City of Concord, the County of Belknap, and Mascenic Regional School District, appealed superior court order that denied their motion for summary judgment and granted summary judgment in favor of the State. The New Hampshire Retirement System (NHRS) is a tax qualified pension trust for certain public employees. The petitioners, on behalf of themselves and similarly situated municipalities, counties, and school districts, filed a petition for declaratory and injunctive relief, and damages in superior court, naming the State of New Hampshire and NHRS as respondents. The petition alleged that section 52 was an unfunded mandate that violates Part I, Article 28-a of the New Hampshire Constitution. Both the petitioners and the State moved for summary judgment. NHRS took no position on the constitutionality of section 52, but filed a separate motion for summary judgment, arguing that it was an improper party and that the New Hampshire Constitution and RSA 100-A:15, I, forbid it from using NHRS trust funds as the source of any monetary compensation to the petitioners. The trial court denied the petitioners' motion for summary judgment, granted the State's motion for summary judgment on the merits, and, accordingly, did not reach NHRS's motion. The petitioners appealed, arguing that the trial court erred in granting the State's motion for summary judgment, and maintaining that section 52 is an unconstitutional unfunded mandate. The Supreme Court affirmed: "[t]here is also no indication that the amendment was designed to delegate to local governments effective control over the establishment of the state budget and appropriations. Indeed, to interpret the amendment in such fashion would bring it into conflict with Part II, Article 2 of the State Constitution, which confers 'the supreme legislative power' of the State on the House of Representatives and the Senate. Without a far more explicit indication that the people intended such a substantial alteration of fundamental legislative power, we decline to read Article 28-a in this fashion." View "City of Concord v. New Hampshire" on Justia Law

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.