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Bar News - July 4, 2008


NH Supreme Court At-a-Glance: May 2008 – Part 2

By:

Supreme Court At-a-Glance for May 2008 Part 1 appeared in the June 20, 2008 issue of Bar News.

Insurance

Clark & Lavey Benefits Solutions, Inc. v. Education Development Center, Inc., No. 2007-423
May 2, 2008
Affirmed

· Whether an on-the-record conference in which a possibly erroneous term was not explicitly objected to was sufficient to preserve an objection to a jury instruction.

· Whether a fiduciary relationship existed between an insurance broker and their client requiring full disclosure of commission rates used by the insurance carriers recommended by the broker.

In 1997 Education Development Center, Inc. (EDC), a not-for-profit corporation, hired Clark & Lavey Benefits Solutions, Inc. (C&L), an insurance broker, to aid in selecting companies that sponsor employee benefit plans, C&L to be paid solely from commissions built into the premiums paid by EDC to the insurance carriers it selected with C&L’s help. In 2004 EDC’s benefits manager discovered that the commission rates being paid to C&L were higher than the "standard" rates being paid to others, and began negotiations with C&L to revise these rates. EDC continued to use C&L’s services, but terminated them in 2005. C&L then sued EDC, and EDC counterclaimed. A jury found C&L liable to EDC for breach of fiduciary duty and intentional misrepresentation, and awarded EDC damages of $70,000. The jury also found EDC liable to C&L for breach of contract and negligent and intentional misrepresentation and awarded damages of $112,000 to C&L. After the trial ended EDC moved for forfeiture of all commissions, a motion which the trial court denied. EDC then appealed the denial of the motion, also arguing that certain jury instructions were erroneous. C&L cross-appealed from the trial court’s denial of its motion for a directed verdict on EDC’s claims for breach of contract and misrepresentation.

The Court noted first of all EDC’s allegation that C&L had breached the Massachusetts Consumer Protection Act (MCPA) in failing to disclose the "standard" commission rates of the carriers it recommended, and that such disclosure would have influenced their decision to use C&L’s services. EDC contends that the trial court erroneously instructed the jury on the elements of this claim, which included a "rascality" standard. C&L argued that the issue had not been preserved for appeal, and, in any event the instruction was not erroneous. A contemporaneous objection is necessary for preservation of an objection to a jury instruction. EDC had not objected to the instruction which included the term "rascality" at the time it was given to the jury, but argued that they had done so during an on-the-record conference with the trial judge. The Court found, however, after reviewing the conference record, that EDC’s objection was to the order in which the term was to be used, and not to the inclusion of the term itself.

EDC also contended that even if it had not preserved the issue, error could be shown by a plain error analysis. C&L countered this arguing that there had been a "true waiver" by intentionally relinquishing a known right. The Court rejected this claim, not having adopted the "true waiver" analysis in a plain error context, and proceeded to a plain error analysis. "Plain" is the same as "clear" or "obvious," that is, if the governing law on the issue is well-settled. EDC contended that the Massachusetts Supreme Judicial Court had abandoned "rascality" analysis in 1995 – the Court, however, found that the Massachusetts court had found it "uninstructive" rather than abandoning it, and both Federal and Massachusetts courts had used it subsequent to the SJC decision, the law is thus not clearly settled, and there is no plain error.

The remaining claims related to the question of whether C&L owed a fiduciary duty to EDC. C&L argued that there was only an ordinary commercial duty, and that its motion for a directed verdict should therefore have been allowed. EDC argued that the jury had found a breach of fiduciary duty and its motion for forfeiture of all the commissions should have been allowed.

In New Hampshire "fiduciary relationship" is comprehensively defined, and exists, between two persons, when "one has gained the confidence of the other and purports to act or advise with the other’s interest in mind." C&L argued that the relationship with EDC was that of an ordinary broker and client, subject to the norms of the trade, not fiduciary, and that its advertising representations were the usual puffery. But the evidence at trial was such that a jury could find a fiduciary relationship, so that the denial of the motion for a directed verdict was correct.

Finally, EDC argued that a breach of fiduciary duty had been found, and that they were thereby entitled to forfeiture of the entire commission. But in their pleadings and closing argument they had asked only for the difference between the actually paid C&L commissions and the "standard" commissions. They did not ask for a jury instruction on forfeiture, nor did they object to the absence of one. Thus C&L was never put on notice that they had to defend themselves against such a charge, and the trial court did not err in denying a motion for forfeiture.

Michael J. Sheehan, of Concord for the defendant; Getman, Stacey, Schulthess & Steere, P.A., of Bedford (Andrew R. Schulman and Dona Feeney on the brief, and Mr. Shulman orally), for the plaintiff.


Nuisance; Negligence

Belhumeur v. Zilm, No. 2007-633
May 2, 2008
Affirmed

· Whether a land owner has a duty to remedy a nuisance to his neighbor caused by wild bees nesting on the owner’s land.

· Whether a land owner can be held liable for the independent acts of wild bees nesting on his land for damages on his neighbor’s land.

· Whether a duty is created by an affirmative undertaking to do so.

Plaintiffs and defendants are abutting land owners. Plaintiff, while on his own land, was injured by wild bees nesting in a tree on his neighbor’s property. Plaintiffs brought suit against defendants alleging (1) that defendants breached a duty of ordinary, reasonable and due care to protect them from unreasonable risk of injury while on their own property; and (2) that defendants, by allowing the wild bees on their property, interfered with their (plaintiffs) use and enjoyment of their property, constituting a private nuisance. Defendants moved for summary judgment on the bases that they were not liable for (1) hazards occurring naturally on their property that injured someone on another property; and (2) for injuries by wild animals. The trial court granted the motion, and this appeal followed. Plaintiffs argue error by the trial court in (1) not finding a common law duty of defendants to abate the actions of the wild bees; and (2) that defendant created a duty by affirmatively undertaking to remove the tree and bees, and then unreasonably abandoned the effort.

The Court agreed with the trial court that defendants could not be held liable in nuisance for wild animals that exist naturally on their land. The established common law rule is that a land owner has no affirmative duty to remedy conditions of natural origin even if they are inconvenient or even dangerous to his neighbors. To create a legal nuisance, the act of man must have contributed to its existence. Plaintiffs have not made any such allegation, and summary judgment was thus proper for the nuisance claim.

On the negligence claim, the trial court had held that defendants could not be held liable for the independent acts of wild animals which they neither possessed nor harbored. The rule of law is that a land owner can not be held liable for the actions of indigenous wild animals, unless he has reduced them to possession or control, or if he has introduced non-indigenous animals into the area.

But most courts have recognized the possibility that a negligence claim may hold as a duty of a land owner, though apparently few courts have actually so held. Duty is a very artificial concept. The decision to impose liability ultimately rests on a judicial determination that the social importance of protecting the plaintiff’s interest outweighs the importance of immunizing the defendant from extended liability. The Court believes that the reality of the unpredictability and uncontrollability of wild animals, means that these animals are therefore neither the property nor the responsibility of the owner or occupier of the land. The Court thus finds that the protection of the plaintiff’s interest in avoiding injury by the wild bees is outweighed by the importance of immunizing the defendant from extended liability.

There remains the question of whether a duty was created by defendant affirmatively undertaking to remove the tree and the bees. A party who voluntarily renders services to another may be held to a duty of care, but a mere promise without either performance or reliance is not sufficient to impose a duty. The conduct must have progressed to a point where action would commonly result, or if his actions have put the other into a worse position than before by increasing the danger to him, or if he has relied on these actions to his detriment. Neither of these situations is present here. The trial court’s allowance of defendant’s motion for summary judgment was therefore affirmed.

Getman, Stacey, Schulthess & Steere, P.A., of Bedford (Michael W. Wallenius) for the defendants; Law Offices of Harvey J. Garod, of Meredith (Harvey J. Garod) for the plaintiffs.


Real Property

Foley v. Wheelock, No. 2007-249
May 20, 2008
Affirmed

· Whether a sale of a property, following the termination of a "with reserve" auction, at a price lower than the reserve price, was allowable.

In 1997 Foley and Wheelock purchased a condominium, for $75,000, as tenants-in-common for use as their respective law offices. By December 2005 relations between them had deteriorated, and Foley filed a petition for a court-supervised partition of the condominium. In March 2006, before the probate court had acted, relations had further deteriorated to the point where Wheelock moved his office to another location. In early June the court granted the petition for partition, with a provision for a public auction if the parties could not agree on a purchase price by Foley. Foley was also to pay Wheelock a stated compensation for his costs in having moved to a different location. The public auction was then held on November 16 with a reserve price of $179,000, based on expert testimony presented by Wheelock. No bid met the reserve price. Wheelock had made the highest bid, $140,000, during the auction, and moved the court to modify the auction order to waive the reserve price and accept his bid as reflecting the actual market price. Foley objected, not having bid because of his belief that any bid needed to be greater than the reserve price, and asked for five days to obtain a loan of $145,000 for the purchase. The court rejected this request, and, on June 1, waived the reserve price and allowed the purchase by Wheelock.

The court had also ordered Foley to pay half of Wheelock’s rent for his new office space until the condominium was sold. Foley challenged this part of the court’s order. Wheelock had continued to pay half of the mortgage on the property and the utility bills. Further, the court concluded that Foley’s behavior had necessitated Wheelock’s relocation. The probate court’s decision to offset Wheelock’s continued mortgage payments on a property he could not use was therefore sustainable.

Foley also argued that the probate court erred in accepting Wheelock’s bid, rather than insisting on the reserve price that Wheelock himself had proposed, but could not cite any law that prevents a seller (in this case, presumptively the court) from accepting a sub-reserve bid after an auction at which the reserve price had not been met. The seller, after the "with reserve" auction had been terminated, had complete discretion to sell the property to any sub-reserve bid that was still available. The issue then became whether the court’s order was sustainable, and the Court decided that the lower court had acted sustainably in getting the best price for the sale of the condominium.

Boynton, Waldron, Doleac, Woodman & Scott, P.A., of Portsmouth (William G. Scott on the brief and orally), for the respondent; Richard N. Foley, by brief and orally, pro se.


Real Property; Specific Performance

Glick v. Chocorua Forestlands, No. 2007-037
May 16, 2007
Reversed in part, affirmed in part, and remanded

· Whether an agreement for first refusal to buy a particular property, triggered by a purchase and sale agreement (P&S), remains enforceable when the P&S is terminated prior to the tender of the purchase price quoted in the P&S.

Petitioner appeals a superior court order denying his petition for specific performance of his right of first refusal for land owned by respondent; respondent cross-appeals the finding that petitioner had valid first-refusal rights.

In March 1974 petitioner, Glick, bought a parcel of land, abutted by several lots which were part of a much larger parcel owned by Chocorua. Between 1983 and 1986 Glick and Chocorua negotiated an agreement to include a right of first refusal for the lots abutting his property, and for Chocorua to obtain rights of way across Glick’s land. An agreement was signed on June 26, 1986. Deeds including the agreed upon elements were recorded on October 16, 1986. However a planned for separate agreement defining more precisely these rights of first refusal was never written or signed. There was then a period of inactivity until November 4, 1998, when Chocorua’s counsel sent a letter to Glick informing him of a purchase and sale agreement of a sale of essentially all of Chocorua’s assets to Cabot, including the lots in question, acknowledging his rights of first refusal, and giving him 30 days to exercise these rights for $375,000. But on November 25, 1998 Chocorua’s attorney advised Glick that the P&S agreement had been cancelled and terminated by Cabot, so that Glick’s rights of first refusal could no longer be exercised. Cabot advised that they were considering acquiring the partnership interests of Chocorua rather than the property itself. In February this was in fact carried out. Glick then brought the present action, arguing that his rights of first refusal entitled him to purchase the lots at a fair market price. Chocorua objected that the separate agreement defining these rights had never been executed, and that even if Glick had these rights, they would not have been triggered by a change in partnership interests, as opposed to a sale of the property.

Both parties filed motions for summary judgment. Glick argued that once the rights had been triggered by the P&S agreement he had an irrevocable option to buy. Since many material facts regarding the land remained unresolved, the court denied the motion except for one narrow exception, that if there were a valid right of first refusal, and these rights were defined by the recorded agreement, then Glick had thirty days to purchase the property at the quoted price. After trial the court’s final order held that Glick had an enforceable right of first refusal and that the agreement represented a meeting of the minds, but that the transfer of partnership interests did not trigger the right of first refusal, so that Glick could not force the sale. The court also found that Glick had not proven, as he had asserted, that Chocorua had acted in bad faith by entering into a partnership sale.

Glick argues on appeal, inter alia, that on receipt of the P&S agreement his right of first refusal ripened into an option to buy within the 30 day period The Court agreed with this contention, thus did not need to reach the other arguments.

The Court began by noting no previous consideration of the issue: "whether a right of first refusal, once triggered, is exercisable for the entire period of time specified by the parties, even though the third-party contract has been terminated." Glick contends that the right of first refusal always ripens into an irrevocable option once he has received notice of intent to sell. Chocorua, on the other hand, argues that a right of first refusal only gives the holder the right to notice of a proposed sale, but that the offer does not exist once the sale has been abandoned.

The Court’s practice has been to look at the intent of the parties, as manifested by the language of the entire contract, in order to define the rights of the parties. The use of the phrase "right of first refusal" does not end the inquiry. Rather the contract terms establishing that right control whether an irrevocable option has been created, or whether it can be revoked if the owner, in good faith, changes his mind and withdraws his offer before the right has been exercised. In the present case the Court concluded that "the condition precedent triggering the right of first refusal was the occurrence of a single, isolated event; that is, Chocorua’s execution of a purchase and sale agreement." The right was not conditioned on the continued existence of the P&S agreement. The agreement between Glick and Chocorua stated that Glick "shall" have thirty days, and the use of that word indicates a mandatory provision.

Chocorua asserts that even if Glick had an option, he did not timely make the offer, and cannot therefore obtain specific performance. The Court, however, said that since Chocorua had repudiated the option, then equity would not require Glick to make a useless tender. Consequently Chocorua breached the contract by rescinding the offer and Glick is entitled to specific performance.

The Court finally considered Chocorua’s cross appeal. Chocorua argued that the court’s finding that there had been a meeting of the minds was incompatible with the fact that the contemplated separate document defining the rights of first refusal had never been executed. There was, therefore, only an agreement to enter into a contract, which was unenforceable. The Court disagreed. A valid, enforceable contract requires an offer, acceptance, and a meeting of the minds on all essential terms, and these are factual questions to be determined by the trier of fact, in this case the trial court. A review of the record supported the trial court’s decision.

Hinckley, Allen & Snyder, LLP, of Concord (Christopher H.M. Carter and Daniel M. Deschenes on the brief, and Mr. Carter orally), for the respondent; Douglas, Leonard & Garvey, P.C., of Concord (Charles G. Douglas, III and Benjamin T. King on the brief, and Mr. Douglas orally), for the petitioner.


Real Property: Zoning

Naser v. Town of Deering Zoning Board of Appeals, No. 2007-620
May 22, 2008
Affirmed in part, reversed in part, remanded

· Whether an the area of an unconditional conservation easement in a portion of a parcel of land can be used to satisfy the zoning requirement for open space in a high density development on the remainder of the parcel.

In 1989 the owners of a 77-acre parcel in Deering received approval from the town’s planning board to develop the parcel by constructing twenty-five duplex buildings. After numerous discussions with the planning board the owners conveyed a conservation easement to the town in 1990, without conditioning the grant on the completion of the development, or reservation of a right of reverter to the grantors. The development was never completed, and in 1994 the property was conveyed to Naser. In 2006 he submitted a plan for constructing fourteen single family homes on the 27 acres not subject to the conservation easement. The application was then rejected in turn by the Planning Board, the Zoning Board of Appeals, and the Superior Court, the basic issue being whether the 50 acres of the conservation easement could be included in the calculation, or only the remaining 27 acres of the parcel.

The Court began with a consideration of the local zoning ordinance. The total area of dedicated open space must equal 50% of the total buildable area. The builder must submit a yield plan, used to determine the appropriate density for the development, and must show that the net density will not be greater than that for a conventional subdivision or development.

Here the yield plan showed lots within the conservation easement, not allowable under the terms of the easement. The yield plan thus did not satisfy the conditions of the local zoning ordinance. The Court then turned to the request for a variance. To obtain a variance the applicant must show that five conditions must be satisfied The ZBA found that 4 criteria failed. The trial court focused on the public interest and spirit of the ordinance criteria, and using these alone, affirmed the ZBA’s denial. The Court noted that the requirement that the variance be not contrary to the public interest is related to that requiring it to be consistent with the spirit of the ordinance. The policy underlying the zoning ordinance is the preservation of open space, for various reasons stated in the ordinance. If the proposed development could not use the already encumbered conservation area as part of its open space calculation, then the proposal for 14 homes on the remaining 27 acres would increase the lot density and leave no open space there at all. But Naser is not seeking to increase the lot density, but to include the conservation land as satisfying the open space requirement. This does not conflict with the ordinance, and the trial court’s decision on this issue is thus reversed. The Court also remanded for the trial court to consider the unnecessary hardship and substantial justice criteria not considered below.

Upton & Hatfield, LLP, of Concord (Matthew H. Upton and Matthew R.

Serge on the brief, and Mr. Upton orally), for the defendant; Cronin & Bisson, P.C., of Manchester (John G. Cronin and Daniel D. Muller, Jr. on the brief, and Mr. Cronin orally), for the plaintiff.


Statutory Construction

Petition of the State of N.H. (State v. Victor Laporte), No. 2007-587
May 2, 2008
Reversed and remanded.

· Whether the trial court erroneously interpreted RSA 639.3, III in requiring that solicitation be defined as criminal solicitation.

Defendant was indicted under RSA 639.3, III, as endangering the welfare of a child under 16 by soliciting him to have sexual intercourse with him. Defendant moved to dismiss, arguing that the indictment failed to allege criminal solicitation, as defined in RSA 629.2 I. The trial court granted the motion on the basis that the term "solicitation" in RSA 639.3 was not defined, and that therefore the definition, as criminal solicitation, in RSA 629.2 I, should be used. The State moved for reconsideration, which was denied, and then petitioned the Court for a writ of certiorari.

The sole issue here is the interpretation of RSA 639:3, III. The Court begins with a discussion of the principles of statutory construction. Trial court’s interpretations of a statute are reviewed de novo. The Court is the final arbiter of legislative intent, interpreting the statute’s words as a whole. The language of the statute itself is looked at first, construing that language in its plain and ordinary meaning. The statute is considered in the context of the overall statutory scheme. Where the statute is clear on its face, legislative intent is not considered. Finally, criminal statutes are not strictly construed, but rather "according to the fair import of their terms and to promote justice."

The Court then considers the specific case of RSA 639.3, dealing with the endangerment of the welfare of a child under 16, in which "solicitation" is not defined. Defendant argues that "solicitation" must be interpreted in terms of RSA 629:2, I, requiring an indictment to allege that the solicitation be for the purpose of engaging in conduct constituting a crime. The Court does not agree.

To begin with, the Court notes that RSA 639.3, III does not incorporate the definition of criminal solicitation of RSA 629.2, I, but uses the term "solicitation" without any modification whatever. But "criminal solicitation" involves both the act and the intent to commit a crime, while "solicits" or "solicitation" by itself involves only the act. The plain meaning of "solicitation" by itself is "to entice", or "to strongly urge." "Therefore, an individual is guilty of solicitation pursuant to RSA 639:3, III if he entices or strongly urges a child under the age of sixteen to engage in sexual penetration."

Furthermore, RSA 639.3, III must be read in the context of RSA 639.3, I, which states that a person is guilty, "if he knowingly endangers the welfare of a child." The "knowingly" mental state applies to the conduct in paragraph III, and an indictment alleging that a defendant "knowingly" solicited a child under the age of 16 to engage in sexual penetration, as defined in RSA 632-A:1, V, satisfies the requirements of RSA 639.3, III.

David M. Rothstein, deputy chief appellate defender, of Concord, for the defendant; Kelly A. Ayotte, attorney general (Ann M. Rice, associate attorney general), for the State.


Statutory Construction

Amherst v. Gilroy, No. 2006-694
May 20, 2008
Affirmed in part, vacated in part, and remanded

· Whether for an ongoing offense under RSA 676:17, I each day, after the first, counts as a separate offense, or as only one subsequent offense.

Gilroy owns property in the town of Amherst (hereinafter "Amherst"). In February 2006 Amherst filed a writ in district court against her alleging maintenance of a non-conforming shed violative of certain regulations and ordinances, and obtained a conditional default judgment against her on July 10, 2006, imposing a civil penalty on Gilroy of $275 for each day from when she was notified on February 6, 2006 to the date of the hearing, as well as attorney’s fees and costs, the total civil penalty amounting to $42,350, but that if she removed the shed or brought it into compliance by August 15, 2006 the penalty would be stricken. Gilroy then filed a motion to vacate the default on the basis that she had neglected to change her calendar from June to July and thus missed the hearing. This motion was granted on condition that she pay attorney’s fees and costs before the next hearing, but that if she failed to make payment by August 1, the July 10 order would stand. On July 21 Gilroy moved for reconsideration, the trial court denoted the motion on August 16, but extended the deadline for payment of attorney’s fees to August 21 and for action on the shed to August 28. Gilroy did not comply with this order, but instead appealed the latest order.

The main issue was that of whether, if the default is not removed, the $42,350 civil penalty is lawful. This rests upon the construction of the wording of the applicable statute, which subjects a person to a "civil penalty of $275 for the first offense and $550 for subsequent offenses for each day that such violation is found to continue." The question is whether this wording allows for an interpretation such that each day constitutes a separate offense. The Court notes two other statutes in which the wording specifically states that each day is to constitute a separate offense. Hence, the Court concludes, if the legislature had intended the statute to be interpreted as each day constituting a separate offense, they would have said so, and since the wording of the statute does not so state specifically, it must be interpreted as that the subsequent days in violation were only a single offense. The Court notes that the legislature is free to clarify their intent if they feel the Court’s interpretation is inconsistent with their intent.

The civil penalty was therefore vacated, and the case remanded.

Rosemary A. Gilroy, by brief, pro se; Paul G. Sanderson, of Concord, by brief, for The Local Government Center, as amicus curiae; Bradley, Burnett, Kinyon, Fernald & Green, P.A., of Keene (Beth R. Fernald on the brief), for the plaintiff.


Statutory construction: Municipal law

Green Crow Corp. v. Town of New Ipswich, No. 2007-559
May 30, 2008
Remanded

• "Does RSA 231:28 require a petitioner requesting permission from the Selectmen to upgrade and reclassify an existing Class VI road to Class V standards to show occasion exists for the layout?"

• "If the Court finds that the occasion analysis applies to the upgrade and reclassification under RSA 231:28, may the Selectmen consider as part of the occasion analysis the anticipated impact associated with the development that may result from the upgrade of the Class VI road to Class V status?"

Green Crow proposed a phased development of approximately 130 homes. In connection with this Green Crow petitioned the Board of Selectmen of the town of New Ipswich to upgrade, at its own expense, portions of a Class VI highway to Class V, conditional on approval of the three phase development by the Planning Board. The board denied the petition on the basis that Green Crow had failed to establish a proper "occasion" for the proposed upgrade and reclassification. Green Crow appealed to the superior court, contending (1) that the occasion requirement did not apply to its petition, and (2) that even if it did, the board could not consider potential impacts of the proposed development that could result from the upgraded and reclassified highway. The superior court transferred both questions to the Supreme Court. The decision on both required statutory interpretation.

RSA 231:28 requires that whenever a petition to lay out a Class V road over an existing Class VI road not conforming to construction standards is presented, that "pursuant to the provisions of this chapter … the selectmen may conditionally lay out roads upon compliance with betterment assessments…" The betterment assessments fall within a sub-part of RSA 231 which includes, inter alia, the section, RSA 231:8, requiring a showing of "occasion." Green Crow argues that the two sections are not connected, that section 28 stands alone, thus does not require a showing of "occasion." The town contends that both are part of an overall scheme that the legislature intended, and must be taken together. The Court found that the wording "subject to the provisions" means that section 8 must also be satisfied. Furthermore, section 28 is not mandatory on the selectmen: they may lay out a road, but the section does not spell out the parameters of decision for this. Thus section 8 is there to provide guidance: that there shall be occasion for laying out a conditional layout. The first question above is answered in the affirmative.

The Court next considers whether the board of selectmen, or, on appeal, the superior court, is permitted to consider the potential impact of the development on the upgrade of highway status, and this depends on the definition of "occasion." "Occasion" is not defined in chapter 231. Prior case law states that occasion "exists if the public

interest requires the town’s acceptance of the roads," and this depends on balancing "the public need for the roads against the burden the roads would impose upon the town." The Court then identifies the various factors involved in the "public interest" prong. The "town burden" prong had previously been considered almost exclusively on anticipated construction and maintenance costs of the proposed road. But here the impact to be considered is the impact on the infrastructure of the town by the development for which the highway upgrade is being requested. Green Crow contends that this is properly the function of the planning board, and that the selectmen should confine themselves to questions of anticipated road maintenance and repair. The town, on the other hand, considers that the selectmen and, on review, the superior court, should consider the impact of potential future development on the town The Court then goes into an extensive discussion and analysis of the statutory definition of how a town may manage land use planning and zoning within its boundaries and concludes that the planning board carries a significant portion of the responsibility for land use planning. The board of selectmen’s role, though significant, is substantially more restricted, and that "the legislature did not intend for a board of selectmen to use its authority to determine occasion for the layout or upgrade of a highway under RSA 231:8 as a vehicle for effectively conducting land use planning or zoning." Thus the second interlocutory question is answered in the negative.

Tower, Crocker & Mullins, P.A., of Jaffrey (Thomas P. Mullins on the brief and orally), for the defendant; Wiggin & Nourie, P.A., of Manchester (Gregory E. Michael and Patricia M. Panciocco on the brief, and Mr. Michael orally), for the plaintiff.


Sam Silverman received his law degree, from Suffolk University Law School and his Ph.D. in Physical Chemistry from Ohio State University. His legal work, has been mostly in criminal defense and in employment law. In 2001 he succeeded in freeing an innocent man, after more than 12 years of incarceration, obtaining a ruling from the Massachusetts Appeals Court allowing for DNA testing.

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