Justia Government & Administrative Law Opinion Summaries

Petitioner Nicholas Bosonetto appealed a superior court decision to grant summary judgment in favor of Respondent Town of Richmond. The decision dismissed his appeal of a decision made by the Town's Zoning Board of Adjustment (ZBA). Petitioner and his wife own property in Richmond upon which are several mobile homes. Petitioner submitted a building permit application to replace one of the mobile homes with a new three-bedroom structure at a different location on the property. The Board of Selectman (BOS) denied the application based on the fact that the property is on a private road, and the Town did not have provisions for building permits on private roads. At its deliberation, the ZBA determined that Petitioner had a vested right to use the existing structures because building permits were issued for them, but that right did not permit him to replace one of the existing structures with a different "footprint" and at a different location on the property. Petitioner filed a declaratory action at the superior court, and requested a statutory appeal of the ZBA decision. Finding the trial court did not abuse its discretion and affirmed the trial court's dismissal of Petitioner's case.

Consolidated cases were brought before the Supreme Court on interlocutory transfer without a ruling from the superior court. Petitioners are New Hampshire voters and the towns and municipalities in which some of them live. They sought a declaration that Laws 2012 Chapter 9 violated the State Constitution. After thorough review of the record, the Supreme Court determined that the petitioners did not meet their burden of proving that the redistricting plan in Laws 2012 Chapter 9 violated the State Constitution, therefore, they were not entitled to the declaration they sought.

Plaintiff Susan Jeffery appealed a superior court order that granted summary judgment in favor of Defendant City of Nashua on her wrongful discharge and breach of contract claims. Plaintiff worked for the City since 1977 in the payroll department. She became the City's risk manager in 1998. n 2004, Plaintiff became concerned that her direct supervisor, Maureen Lemieux, did not understand the budgetary process because "she wanted to level fund the health line items" in the City’s 2005 fiscal year budget. Plaintiff raised her concerns with Lemieux "dozens of times," but Lemieux responded that "she was comfortable with her numbers." In April 2005, the City discovered that the health insurance line item was underfunded. Consequently, the Board of Aldermen convened an ad hoc health care budget committee to investigate the circumstances leading up to the shortfall. Plaintiff alleged that between her two interviews with the committee, she was summoned to a meeting with the mayor, at which he asked her whether she, as department manager, should be held responsible for the budget shortfall. Plaintiff refused to accept responsibility, explaining that she had tried to prevent the error by raising her concerns with Lemieux and others. Further, Plaintiff alleged that on a separate occasion, the mayor suggested that they "all share the blame," but she refused his suggestion. Subsequently, Plaintiff started receiving poor performance evaluations and later received disciplinary actions. She would later be demoted. Shortly after her demotion, Plaintiff took a leave of absence under the Family and Medical Leave Act; while still on leave, Plaintiff resigned her position, stating she wished to retire early. Three years after her resignation, Plaintiff sued the City alleging constructive discharge and breach of contract. Finding that Plaintiff's suit fell outside the statute of limitations, and that Plaintiff had no enforceable employment contract with the City, the Supreme Court affirmed summary judgment granted in favor of the City.

Plaintiff Lebanon Hangar Associates, Ltd. (LHA) appealed a superior court decision that vacated an arbitrator's decision that it was not required to pay taxes under a lease agreement with Defendant City of Lebanon. LHA leased property at the City's airport. Although the terms of the lease require LHA to pay "taxes . . . lawfully levied or assessed, "between 1991 and the first half of 2006, the City did not tax LHA on the value of the land itself, limiting its assessment of taxes to the value of the buildings. In October 2006, the City assessed a tax upon the value of the land, thereby increasing the total valuation subject to taxation. After unsuccessfully requesting an abatement from the City, LHA petitioned the superior court, pursuant to RSA 76:17 (2003), to rule that the leasehold is not taxable. LHA subsequently moved to amend its petition to add a claim that the City breached the lease by demanding the payment of taxes. In response, the City invoked an arbitration clause in the lease. In April 2009, the arbitrator issued the first of two decisions, concluding that, while the written lease unambiguously allows the City to assess a tax upon the value of LHA’s leased land, other evidence submitted by LHA could serve as the basis for reforming the lease based upon mutual mistake. At the next hearing, LHA asserted its reformation argument over the objections of the City, which contended that the arbitrator’s authority was limited to deciding the meaning of the four corners of the lease agreement. After reviewing the evidence, the arbitrator issued a second, and final, decision in March 2010, concluding that LHA "is not and has not been obligated to pay real estate taxes to the City" under the lease. The issue on appeal to the Supreme Court was whether the arbitrator exceeded the scope of his authority by reforming the lease based upon mutual mistake. Upon review, the Supreme Court agreed with LHA that the arbitrator did not exceed the scope of his authority in this case, and reversed the superior court's decision, and remanded the case for further proceedings.

Petitioner Town of Seabrook appealed an order of the New Hampshire Department of Environmental Services (DES) which granted Respondent NextEra Energy Seabrook, LLC (NextEra), several tax exemptions under RSA 72:12-a (Supp. 2011). Upon review of the record, the Supreme Court found that the record supported DES' decisions except for one: the Court found no evidence in the record to support an increase in a percentage allocation allowed under the statute. Accordingly, the Court partly affirmed, partly reversed the DES' decision, and remanded the case for further proceedings.

Petitioner Liberty Assembly of God (Assembly) appealed a decision of the New Hampshire Board of Tax and Land Appeals (BTLA) which upheld a 2008 decision of Respondent City of Concord (City), denying the Assembly's request for a religious use tax exemption. Assembly owns 26.13 acres of land in Concord; approximately twenty acres are in "current use." The undeveloped land is used primarily for agricultural or forestry purposes, although there is a "prayer trail" around its perimeter. From 1994, when Assembly acquired its property, until 2008, the City granted Assembly a religious use tax exemption on all of its property. However, in 2008, the City granted Assembly an exemption on only forty percent of its property, concluding that sixty percent of the property was not used and occupied for religious training or other religious purposes, and was therefore taxable. The City subsequently revised its determination and exempted sixty percent of the property. The City considered the entire second floor of the main building taxable as not being used for religious purposes. Following appeal, the BTLA upheld the City’s apportionment for tax year 2008. Assembly asserted that the BTLA’s ruling was erroneous on three interrelated grounds: (1) the City and the BTLA misinterpreted RSA 72:23, III because it should be read as fully exempting houses of worship from taxation; (2) the City’s inquiries into the religious uses and purposes of each room within the church building unconstitutionally “entangled” the government with religion; and (3) even if the statute and constitution permit parsing taxable from exempt space within a house of worship, all of Assembly's space should be exempt as serving a religious purpose. Having decided that the City’s methodology was not flawed, the Supreme Court deferred to the BTLA’s judgment in determining the weight to be given evidence: "Because Assembly has not demonstrated by a clear preponderance of the evidence that the second-floor restroom was "owned, used and occupied directly for religious training or for other religious purposes," the Court could find error in the BTLA's finding such space taxable.

Petitioner 38 Endicott Street North, LLC appealed a superior court order that dismissed its petition under the Right-to-Know Law and denied its request for attorney’s fees. In 2011, Petitioner sent Respondent the State Fire Marshal, head of the New Hampshire Division of Fire Safety a letter requesting to inspect all records, information, and documents related to a September 17, 2010 fire that took place on its property and the "investigation thereof." Petitioner did not receive a response, and on May 3, 2011, sent a second letter demanding a response. On May 5, 2011, the Fire Marshal replied, disclosing the Incident Initiation Report and its supplement, but withholding all other materials because the investigation was ongoing. On May 6, 2011, Petitioner filed a sought an injunction to direct the Fire Marshal to produce the undisclosed materials pursuant to the Right-to-Know Law. Petitioner also requested attorney’s fees and costs. The Fire Marshal responded that the undisclosed materials are excluded from the Right-to-Know Law under the exemption for records “compiled for law enforcement purposes.” After a hearing, the trial court ruled that the withheld records were exempt from the Right-to-Know Law, denied the petition, and also denied Petitioner’s request for attorney’s fees and costs. On appeal, Petitioner argued that the trial court erred in ruling that the materials were compiled for law enforcement purposes and that disclosure could reasonably be expected to interfere with law enforcement proceedings. Petitioner also argued that the trial court erred in denying its requests for an in camera review of the materials or the compilation of a Vaughn index, as well as in denying its motion for attorney’s fees and costs. Finding no error, the Supreme Court upheld the trial court's judgment.

Respondent Liberty Mutual Fire Insurance Company appealed a superior court order that denied its motion for summary judgment and granted summary judgment in favor of Petitioner Rebecca Rivera. The court ruled that an automobile policy (policy) issued to Rivera’s parents excluded liability coverage but afforded uninsured motorist coverage for injuries Rivera sustained in a single-vehicle accident in Dracut, Massachusetts. Upon review, the Supreme Court affirmed the grant of summary judgment in Petitioner's favor: "the terms of the owned vehicle exclusion appear to remove [Petitioner's vehicle] from the definition of uninsured motor vehicle even though, as to Rivera, there [was] no insurance available. While Liberty Mutual is free to limit the extent of its liability through the use of an exclusion it cannot do so in contravention of statutory provisions or public policy."

Plaintiff Professional Fire Fighters of New Hampshire (PFFNH) appealed a superior court order that ruled Defendant The New Hampshire Local Government Center (LGC), was not required to provide certain meeting minutes under the Right-to-Know Law. LGC produced the vast majority of the documents requested by PFFNH, but redacted certain portions under a claim of attorney-client privilege. Dissatisfied with the redacted records, PFFNH moved to compel LGC to produce the unredacted minutes of fourteen meetings that occurred between 2000 and 2009. PFFNH argued that the redacted portions should have been released because the oral communications of LGC’s counsel occurred during meetings that were open to the public under RSA chapter 91-A, thereby defeating any claim of privilege. The superior court disagreed and denied the motion to compel. "As the superior court observed, "the fact that the meeting occurs in a public place does not destroy the privilege, if no one hears the conversation." The Supreme Court concluded that LGC could have reasonably relied on the absence of public attendees to ask for the candid advice of counsel. Had members of the public been present, the conversation could have progressed differently. Thus, because no third persons were present at the meeting, LGC was not required to take any further precautions to ensure the communications were private.

Pro se Plaintiff Robert Suprenant appealed a superior court order that dismissed his claims against Defendant Deborah Mulcrone under the doctrine of absolute quasi-judicial immunity. Defendant was the guardian ad litem for Plaintiff's son in a contested case between Plaintiff and the son's mother. Defendant was appointed to investigate how Plaintiff and his son's mother should divide parenting time and residential responsibility for their son. Defendant stated in her report that although it was "commendable" that Plaintiff had no criminal charges since 1994, his failure to disclose his prior charges was "troubling." Plaintiff filed suit against Defendant alleging those statements in her report were negligently made and breached an implied contract with Plaintiff to observe "reasonable standards of care and fair dealing." Upon review, the Supreme Court concluded that Defendant was entitled to absolute immunity for her acts. Accordingly, the Court upheld the trial court's dismissal of Plaintiff's lawsuit.