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Bar News - June 18, 2010

NH Supreme Court At-a-Glance - May 2010


Melissa S. Penson

Enrique F. Mesa, Jr.
Administrative Hearing—NH Public Utilities Commission

Appeal of Union Telephone Company d/b/a Union Communications
Nos. 2009-168 & 2009-432
May 20, 2010
Reverse and Remand

  • Whether a local exchange provider had a constitutional right to prior notice and a hearing before another service provider was granted access to its service area
  • Whether the Telecommunications Act preempted state statutory law regarding the above.
This appeal represented consolidated appeals. Union Telephone Company (Union) appealed orders of the NH Public Utilites Commission (PUC) denying Union’s motions to rescind the PUC’s grants of authority to the petitioners, MetroCast Cablevision of New Hampshire, LLC (MetroCast) and IDT America, Corp (IDT) to operate as competitive local exchange carriers in Union’s service territory. Union is a small local exchange carrier. In 2008, MetroCast applied to the PUC to amend its certification as a competitive local exchange carrier to include Union’s service territory in addition to its existing service territory. The application was granted. IDT provides services jointly with MetroCast. In 2009, IDT applied to amend its certification to include Union’s service territory in addition to its existing service. The PUC also granted IDT’s application.

On appeal, Union argued that the PUC erred when it processed the applications of MetroCast and IDT pursuant to NH Administrative Rules (Rules) and failed to afford Union prior notice and a hearing as required by RSA 374:26 (2009). Rule 431.01(d) and 402.33 provides certain steps that an entity must take before commencing operations as a competitive local exchange carrier. Because under these rules Union is considered "exempt," the Court held that the PUC erred in holding Union to the process under this rule.

The Court further held that under RSA 374:22 and 374:26, after MetroCast and IDT requested permission from the PUC to start service in Union’s service territory, the PUC was then required to hold a hearing. Because the PUC did not reach the federal preemption issue of whether the Telecommunications Act preempted State regulation because it determined that the Union had no right to prior notice and a hearing, the Court remanded this issue to the PUC for resolution. Lastly, when addressing whether Union had a constitutional right to prior notice and a hearing, the Court held that Union did not have a protected property interest because the current statutory scheme failed to grant Union a legitimate claim of entitlement to an exclusive franchise. The Court held that Union has no constitutional right, but does have a statutory right, to prior notice and a hearing. The Court remanded this to the PUC to determine whether federal law preempts this state statutory requirement.

Murtha Cullina, LLP, of Boston, MA (Olga L. Bogdanov and Robert J. Munnelly, Jr., on the brief and Mr. Munnelly orally) for Petitioner MetroCast Cablevision of New Hampshrie, LLC. IDT America, Corp., filed no brief. Rothfelder Stern, LLC, of Westfield, NJ (Martin C. Rothfelder on the brief and orally) for Union Telephone Company d/b/a Union Communications. Michael A. Delaney, attorney general (Glenn A. Perlow, assistant attorney general, on the brief and orally) for the State. Devine, Millimet & Branch, P.A., of Concord (Frederick J. Coolbroth & a. on the brief) for Bretton Woods Telephone Company, Inc., Dixville Telephone Company, Dunbarton Telephone Company, Inc., Granite State Telephone, Inc., Kearsarge Telephone Company, and Merrimack County Telephone Company, as amici curiae.


The Mortgage Specialists, Inc. v. Implode-Explode Heavy Industries, Inc.
No. 2009-262
May 6, 2010
Vacate in part, reverse in part, remand.

  • Whether a website and the comments made by an anonymous poster on that site are protected by the First Amendment "newsgathering" privilege
Mortgage Specialists (Specialists) is a mortgage lender. Implode operates a website that ranks various businesses in the mortgage industry on a ranking device it calls "The Mortgage Lender Implode-O-Meter." The website identifies allegedly "at risk" companies and allows comments to be posted on the website. In 2008, Implode published an article detailing administrative actions taken by Specialists. The article included a link to a document representing Specialists’ 2007 loan figures (Loan Chart). Specialists petitioned for injunctive relief, alleging that the publication violated RSA 383:10-b (2006) that mandated confidentially of reports and examinations made by the NH Banking Department. Specialists also claimed posted comments made by anonymous poster Brianbattersby were false and defamatory. Specialists sought removal of the documents and postings and the identity of Brianbattersby. The trial court granted the requested relief.

On Appeal, Implode argued that because the First Amendment (under the newsgathering privileged) protected a speaker’s right to anonymity (including posted documents). Although the Court had already set forth guidelines to determine whether a plaintiff can compel a defendant-newspaper to disclose confidential sources in a libel action and whether a defendant can overcome the qualified newsgathering privilege in a criminal case, (State v. Siel 122 NH 254 (259) (1982)), the Court had not yet established a standard to determine whether a plaintiff can overcome the newsgathering privilege in a civil suit where the press is a non-party to a defamation action. The Court adopted a First Circuit Court of Appeals balancing test that weighs the First Amendment rights of a news organization against the rights of a litigant seeking confidential information. As the trial court ordered the disclosure of the Loan Chart source without analyzing the applicability of the qualified newsgathering privilege or conducting any balancing of interests, the disclosure order was vacated and remanded for further proceedings.

Additionally, the Court adopted a case-by-case test for courts to apply when a plaintiff requests disclosure of the identity of an anonymous defendant who has posted allegedly defamatory material on the internet. Courts must balance the equities and rights at issue, including the right to speak anonymously and the right of the plaintiff to protect its proprietary interests and reputation. Plaintiffs are required to notify the anonymous posters that they are subject of a subpoena or application for disclosure and provide the poster time to respond to the application. Trial court should require the plaintiff to identify and set forth the exact statements made. The court shall review all documents to determine whether the Plaintiff has made a prima facie cause of action. If the burden is met, the court then balances the defendant’s First Amendment rights against the strength of the prima facie and the necessity of disclosure. The Court remanded for further proceedings consistent with this test. The Court vacated the trial courts production order of other documents and remanded for further proceedings consistent with this opinion.

The injunction prohibiting Republication of the Loan Chart and Brianbattersby’s postings was a prior restraint. While Specialist’s loan information was "confidential," Specialists interest in protecting its privacy and reputation did not justify the prior restraint. The prior restraint Order was reversed.

Devine, Millimet & Branch, P.A., of Manchester (Alexander J. Walker & a on the brief, and Mr. Walker orally) for the petitioner. Orr & Reno, P.A. of Concord (Jeremy D. Eggleton and William L. Chapman on the brief, and Mr. Eggleton orally) for the respondent. Drummond Woodsum & MacMahon of Portsmouth (Paul L Apple on the brief) for Citizen Media Law Project and Reporters Committee for Freedom of the Press, as amici curiae. Public Citizen Litigation Group of Washington, DC (Paul Alan Levy on the brief) and Backus, Meyer & Branch, LLP of Manchester (Jon Meyer on the brief) for Public Citizen as amicus curiae.

State v. North Atlantic Refining Limited & a.
N. 2009-545
May 7, 2010

  • Whether the actions of owner of an international oil refinery constituted intent to distribute a product to New Hampshire and represented sufficient minimum contacts with NH to warrant a finding of specific personal jurisdiction
In the latest appeal stemming from the State’s 2003 lawsuit against refiners and manufacturers that allegedly supplied NH with gasoline containing methyl-tertiary butyl ether (MTBE) to recover damages purportedly caused by contamination of groundwater and surface waters in the state. North Atlantic, one of the named defendants in the State’s lawsuit, owns and operates an oil refinery in Canada. In November 2007, North Atlantic moved to dismiss the State’s complaint against it for lack of personal jurisdiction. In July 2009, the trial court denied North Atlantic’s motion to dismiss on the ground that the State had offered a prima facie showing of facts to justify exercise of specific personal jurisdiction over North Atlantic. This appeal followed.

The Court found after considering all the factors involved, including purposely putting into the stream of commerce a product that it knew was made for and sold to NH, that North Atlantic is subject to specific personal jurisdiction in NH.

Michael A. Delaney, Attorney General for the State of NH. Nixon Peabody LLP of Manchester for the defendant.

Criminal Law

State v. Belyea
No. 2009-038
May 20, 2010

  • Whether the judge involved in the drug court team should have recused himself from presiding over the termination hearing from that same drug court program
  • Whether the judge erred in refusing to grant the defendant’s request to continue the termination hearing
The defendant appealed a decision by the trial court denying his motion to recuse the judge who was a member of the drug court team from presiding over the hearing to terminate the defendant’s involvement in the same drug court sentencing program (Program) and the denial of his motions to continue.

Following an entry of a plea of true to his second probation violation, the defendant was sentenced to serve 3-7 years, all suspended for 5 years conditioned in part upon compliance with the terms of the Program. Before his admission into the Program, during the plea colloquy the trial judge explained the conditions of admission and participation in the program and consequences for noncompliance. The defendant’s sentence terms provided that termination from the Program would result in imposition of the suspended sentence without hearing. The defendant also signed a Program Participation Agreement (Agreement) outlining the same terms and conditions.

During the Program, because the defendant accumulated three sanctions, the State moved to impose the defendant’s suspended sentence and recommended termination of the program. The trial court scheduled a 15-minute termination hearing. The defendant objected, arguing a right to procedural due process termination and imposition of his sentence. He sought an evidentiary hearing and to recuse Judge Vaughan from presiding over the termination proceedings because he was a participant on the same drug court team that had recommended his termination. The termination hearing was continued and the allotted time increased. At the actual hearing, the motion to recuse and motions to continue were denied. The defendant’s involvement was terminated and sentence imposed.

On appeal, the Court held that there was no error in allowing the same judge that served on the drug court team to preside over the termination hearing. The defendant failed to show that an objective, disinterested observer who was fully informed of the operation of the Program and of the Judge’s participation would entertain significant doubt about the judge’s ability to fairly and impartially judge the issues presented at the termination hearing. The rules of the Program permitted the judge to be involved in the program, the defendant was aware of these rules, and there was no evidence that the judge acted as anything other than a neutral magistrate. The trial court did not err in denying the motion to continue as the defendant did not preserve argument regarding the adequacy of the notice of the hearing as the defendant failed to object during the hearing.

Michael A. Delaney, attorney general (Susan P. McGinnis, senior asst. attorney general, on the brief and orally), for the State. Kathryn Hyland, staff attorney, New Hampshire Appellate Defender Program, of Concord, on the brief and orally, for the defendant.

State v. Kelly
No. 2008-672
May 6, 2010
Reverse and Remand

  • Whether the trial court’s response to three jury questions constructively amended the complaint to the defendant’s prejudice
  • Whether the trial court erred in excluding evidence of the complaining witnesses’ past allegedly false statements to the police
The defendant and Elizabeth Kelly were engaged and cohabitated until 2006. Kelly obtained a protective order against the defendant that prohibited the defendant from going within 100 yards of where Kelly may be. After issuance of the order, the defendant drove to the police department to request an officer escort to Kelly’s residence to obtain the defendants belongings. The officer escorted the defendant to Kelly’s residence, where they each parked 100 yards from Kelly’s home. At trial, Kelly testified that she had seen the defendant drive past her house twice that evening. Kelly informed the officer that he had the incorrect order, showing him a later amended order. The officer told the defendant that he could not get his items that day so the defendant drove up the street, turned around in Kelly’s driveway, and drove away. The defendant was then charged with violating the protective order, i.e, he "knowingly violated a protective order…by driving within 100 yards of Kelly’s residence." During trial defense to impeach Kelly with five allegedly false statements Kelly had made to the police. Two concerned allegations that her former husband and a boyfriend assaulted her. The other three concerned statements Kelly made to the police denying reported threats of suicide. The trial court ruled that the defense could not ask questions regarding the suicide attempts, but could ask regarding the false statements. The defense was allowed to refresh Kelly’s recollection with police reports but was barred counsel from impeaching her with the substance of the reports. The defendant was convicted.

During trial, on the third jury question asking if the charge was based upon the first drive-by only (without the police) or the entire chain of events (i.e., police escorted visit, driveway turn-around, etc), the court informed the jury that it could consider all of the evidence that was admitted at trial in deciding whether the State had proven the elements of the crime. While reviewing the issue under the "plain error" doctrine, the Court held that the trial court’s answer to the third jury question constructively amended the compliant to the defendant’ s prejudice. Although the protective order placed the defendant on notice that he could be prosecuted for any act of driving within 100 yards of Kelly’s residence, the complaint was required to be read in conjunction with the parties’ stipulation (and later amendment to the protective order) to determine the provisions of the protective order. As the stipulation provided that the defendant was permitted to go within 100 yards of where the plaintiff resides when accompanied by a peace officer, it was not a criminal act for the defendant to do so. The trial court therefore impermissibly amended the complaint when it told the jury to consider all evidence. The Court did not find the defendant’s failure to request a bill of particulars fatal to his claim.

Because the issue could arise again upon remand, the Court addressed whether the trial court erred in excluding evidence of Kelly’s prior allegedly false statements to the police. The Court agreed with the defendant that Kelly’s testimony, and therefore her credibility, were crucial to the state’s case. The Court also agreed, however, that questioning Kelly regarding her alleged suicide attempts could have subjected her to harassment and undue embarrassment. The Court held that the trial court did not unsustainably exercise its discretion when it denied defense requests to question Kelly further about the five previous statements she gave to police.

Michael A. Delaney, attorney general (Stephen Fuller, senior assistant attorney general, on the brief and orally) for the State. Paul Borchardt, assistant appeallate defender, of Concord, on the brief and orally, for the defendant.

State v. Nieves
No. 2009-402
May 6, 2010
Reverse and Remand

  • Whether New Hampshire requires, as part of the "plain view" exception to the search warrant requirement, that the discovery of evidence be "inadvertent"
Nashua Police Detective Rourke worked with a confidential informant (CI) investigating the defendant, Soiluis Nieves, and Radhames Melo for dealing drugs. Police believed the defendant repeatedly traveled from NH to NY City and then to the Dominican Republic, where he swallowed heroin and then travelled back to NH to meet with Melo to expel the drugs. Following a trip, Det. Rourke and the CI bought drugs from Melo and the defendant; one purchase being at a multi-family house. Det. Rourke applied for and received a search warrant for the defendant’s apartment, but neither the search warrant application nor the Attachment "A" to it (which listed the other contraband to be seized), specifically permitted the officers to search for or seize "drugs" and the word "heroin" did not appear in either document. When executing the warrant, heroin was discovered inside the pocket of a vest handing in a bedroom closet. The defendant moved to suppress the heroin, arguing that the police unlawfully seized it under the plain view exception because they did not "inadvertently" discover it. Until this case, the NH Supreme Court had "left undecided the issue of whether contraband can be seized when its discovery is not inadvertent." The defendant’s motion was denied.

Generally, under the "plain view" exception, the State must prove that 1) the initial intrusion was lawful; 2) the discovery of the evidence was inadvertent; and 3) the incriminating nature was "immediately apparent." On appeal, the Court held that "with respect to drugs, weapons, and other items "dangerous in themselves," there is no inadvertency requirement under the NH constitution. The Court held that the need to protect possessory interests in drugs, weapons, and other items "dangerous in themselves," was not a compelling interest that required a heightened right to privacy. The Court stated, however, that the initial intrusion into one’s privacy under the plain view exception must still be justified by a warrant or an exception to the search warrant requirements.

Michael A. Delaney, attorney general (Nocholas Cort, Asst. Attorney General, on the brief and orally) for the State. Pamela E. Phelan, assistant appellate defender of Concord, on the brief and orally, for the defendant.

State v. Parker
Nos. 2008-885 & 2008-886
May 6, 2010
Reverse and Remand

  • Whether the detective’s assertion that a forensic examiner had found his children to be truthful caused the defendant’s subsequent confession to be involuntary
  • Whether the prosecutor’s question to the defendant on whether he thought his child was lying invaded the province of the jury in determining witness credibility
When the defendant and his wife separated, the wife moved to New York and the defendant moved to Georgia. The children disclosed that the defendant had assaulted him. The wife contacted NY authorities and asked for a protective order. The NY police then contacted the Nashua police, who contacted the defendant to request him to return to Nashua for an interview. The defendant denied the initial interview request but eventually agreed to travel to Nashua following the NY protective hearing. During the interview/interrogation at the Nashua Police Station, after he waived his Miranda rights, the defendant was informed by the interviewing detective that the children were telling the truth and that the defendant needed to admit that the assaults occurred before he could get any counseling. The defendant confessed.

During trial, the defendant’s motion to suppress his statements due to involuntariness was denied, as was his request to find five-year-old A.P. incompetent to testify. The defendant’s request to sever the trials was granted and the parties agreed to redact the transcript of the defendant’s confession to omit any reference to the acts of sexual assault against A.P. at the trial for the sexual assault of C.P. This included redaction of the video recording of the confession by muting the sound. During the trial of C.P., the prosecution played the redacted video and gave the jury the redacted transcript. The defendant sought a mistrial as A.P.’s name was heard at least twice in C.P.’s hearing. This request was denied. The defendant’s motion to suppress his statement was also denied. On cross-examination, the State asked the defendant whether he thought C.P. was lying. Defendant’s objection to this question was overruled. The defendant was found guilty in both the A.P. and C.P. case.

Both appeals were considered together by the Court. The Court found that the detective’s assertions "suggested an atmosphere of confidentiality." Because the interviewing detective made a promise of confidentiality that the defendant relied upon, the Court held that the defendant’s resulting statement was involuntary. The Court agreed that asking the defendant to comment upon whether his son was lying violated Lopez’s broad prohibition on questions requiring a witness to comment upon the credibility of other witnesses. Such questions interfere with the jury’s obligation to determine the credibility of witnesses. The Court did not address the other issues or engage in further analysis due to the reversal on other grounds.

Michael A. Delaney, attorney general (Thomas E. Bocian, asst. attorney general, on the briefs and orally) for the State. Paul Borchardt, asst. appellate defender, of Concord, on the briefs and orally, for the defendant.

State v. Michelson
No. 2009-386
May 7, 2010

  • Whether the police were in performing a protective frisk where the officer had no reasonable suspicion that the defendant was armed and dangerous
  • Whether the officer’s questions impermissibly expanded the scope of the stop.
During a traffic stop, the Defendant stated that he had been involved in a fight, to having a baseball bat in his car (for self-defense) and had a bloodied nose. During questioning, the Defendant failed to make eye contact or to answer questions directly. Because of the defendant’s answers, the officer stated he was going to do a pat-down search for weapons. During the frisk, Officer discovered a small folding knife. When asked "anything else on his person." After a series of unclear responses, the Defendant admitted that he had drugs and produced two diazepam tablets wrapped in cellophane from the coin pocket on his right hip.

The Court found that based on the facts presented, including the bloody nose, a fight, baseball bat and the Defendant’s behavior, that the Officer had the reasonable suspicion that the Defendant was armed and dangerous and was justified in assuring himself that the defendant did not posses a weapon by conducting a protective frisk. Secondly, the Court found that although the purpose of the initial stop concerned the Defendant’s violation of a traffic law, when the Defendant told the Police Officer that he had been involved in a fight, the purpose of the stop became, in addition, an investigation into the fight. All the questions asked were reasonably related to this purpose. Accordingly, no constitutional violation occurred.

Michael A. Delaney, Attorney General for the State of NH. David M. Rothstein, deputy chief appellate defender of Concord for the defendant.

State v. Riendeau
No. 2009-015
May 20, 2010

  • Whether the "way" element of the Habitual Offender statute requires application of the "knowingly" mental state
In 2007, the defendant was driven by his fiancée to the Twin State Speedway in Claremont. After the car was parked the defendant drove the car to the pit and onto the track, to participate in a "spectator race." After the race, the defendant drove to the pit area and created a "smoke show" by spinning his tires. When pit officials approached Riendeau because of the smoke show, the believed the defendant was impaired. The defendant began to drive away from the pit and into the parking lot when an officer approached. The defendant then switched seats with his fiancée and left the track. Another officer stopped the vehicle and arrested the defendant. The defense stipulated to the defendant’s status as a habitual offender and to his knowledge of his status. During trial, the defendant argued that because the State must prove every element of the offense, it must establish the mens rea of "knowingly" as to the "way" element of the habitual offender charge. The court prohibited this argument. The jury instructions provided that the State only had to prove that the defendant was aware that he was driving a motor vehicle and that he was aware that he was a habitual offender; not that the defendant knew that he was driving on a surface that would qualify as a "way" under the law.

On appeal, the Court agreed holding that the "knowingly" mens rea element only applies to the defendant’s knowledge of his status as an habitual offender. The Court noted that the primary purpose of the habitual offender statute is to remove irresponsible driveways from the highway, this purpose being served regardless of whether the defendant recognizes that the road upon which he is driving is a "way."

Michael A. Delaney, attorney general (Stephen D. Fuller, senior asst. attorney general, on the brief and orally), for the State. Christopher M. Johnson, chief appellate defender, of Concord, on the brief, and Lisa L. Wolford, assistant appellate defender, of Concord, orally for the defendant.

State v. Tarasuik
No. 2009-328
May 20, 2010

  • Whether the defendant had to expressly refuse consent to a search where his co-tenant had expressly consented to search due to the terms of probation.
The defendant (Tarasuik) and co-tenant Harwood lived together in a hotel room in Hampton. At the time, Harwood was on probation and had to abide by the standard conditions of probation, including a condition permitting her probation officer to periodically search her residence. Harwood signed a form agreeing to random searches. This form was never reviewed with the defendant and the defendant was not told that periodic searches of the residence were permissible because of the probation. Two probation officers went to Harwood’s hotel room. Although the specifics of the officers’ entry were disputed, the officers entered and began to search the room. The officers could not recall the defendant verbally objecting to it but Harwood testified that the defendant told the officer not to look in his nightstand. Harwood testified that there was only one nightstand. During the search of the nightstand, the officer found cocaine which the defendant admitted was his. He was then arrested. At trial, the defendant moved to suppress the evidence of the cocaine because he did not consent to the warrantless search of the hotel room. This motion was denied and the defendant was found guilty.

On appeal, the Court reiterated the general rule that consent to search is valid against a defendant when conferred by a third party with common authority over or other sufficient relationship to the premises or effects sought to be inspected. Harwood not only had the ability to consent to the search, but she did in fact consent through the terms of her probation. Because the defendant did not expressly refuse consent, the trial court did not err in granting the motion to suppress.

Michael A. Delaney, attorney general (Karin M. Eckel, assistant attorney general, on the memorandum of law and orally) for the State. Paul Borchardt, assistant appeallate defender, of Concord, on the brief and orally, for the defendant.

Criminal Law—Search Warrant for Medical Records

In Re Search Warrant for Medical Records of C.T.
No 2009-208
May 6, 2010

  • A hospital sought clarification of its obligations in the future to produce a patient’s medical records in response to a search warrant where there was no patient authorization or consent.
NH State Police investigated a single-vehicle accident where C.T. was taken to the hospital (where blood was drawn in connection with his care) and he was then later transported to jail. To facilitate C.T.’s proper care, the hospital later called the jail to inform them that C.T. had a broken ankle. C.T. was charged with aggravated driving while intoxicated causing a collision that resulted in serious bodily injury. Police applied to the district court for a search warrant seeking blood samples and associated toxicology reports, as well as medical records generated during C.T.’s treatment at the hospital. The warrant application was granted. When the warrant was served, the hospital delayed complying. The State sought an order of contempt and an order to produce. The hospital produced the records, but objected to the State’s request and moved for an order prohibiting the State from routinely using search warrants to obtain patient medical records. The hospital’s motion was denied.

On appeal, the hospital asserted that a search warrant issued ex parte deprives the hospital and its patients of notice and an opportunity to contest the production of the records. The search warrant placed the hospital in an untenable position—it must either turn over the records and violate its obligations to its patients, or refuse to provide the records and face contempt charges. In rendering its decision, the Court did not address the constitutional right to privacy in medical records, but instead addressed the interplay between search warrants and the physician-patient privilege.

The Court held that because the law was silent as to the treatment due privileged records sought by search warrant, the trial court’s order was in accordance with the law governing search warrants. The Court provided additional safeguards in the future. In addition to the Payne requirements, the State must still show that it has no reasonably available alternative sources it can use at trial to prove the “serious bodily injury” element of felony aggravated DWI. The State must furnish the defendant with adequate notice of its efforts to obtain his medical records, and any subpoena issued to a hospital or medical provider must also be served upon the defendant. The privilege yields when disclosure of the privileged information is essential in light of the countervailing consideration. Procedurally, any search warrant shall order the hospital or medical provider to comply within a reasonable time by producing the records under seal for in camera review. The court shall then determine the manner by which the patient shall be provided notice that such records were produced and shall give the patient and hospital or medical provider an opportunity to object to their disclosure. Upon objection, the State must demonstrate “essential need” for the information contained in the record, i.e., the State must prove both that the information is unavailable from another source and that there is a compelling justification for its disclosure.

Orville B. Fitch II, acting attorney general (Nicholas Cort, asst. attorney general, on the brief and orally) for the State. Sheehan Phinney Bass + Green, P.A. of Manchester (James Q. Shirley & a on the brief, and Mr. Shirley orally) for the defendant.

Real Estate

Manchester Water Works v. Town of Auburn
No 2009-335
May 20, 2010

  • Whether a property owner was entitled to an abatement due to a conversation easement placed on its property
Water Works is a subdivision of the City of Manchester that provides drinking water for the city, owns real properly along Lake Massabesic and its watershed within Auburn. Both parties agreed that RSA 72:11 (2003) governs the taxation of the flood control property in dispute. This statute exempts from taxation land owned by a municipality for the purpose of water supply or flood control, but requires that public entity to make annual payments in lieu of taxes to the city where the property lies. Water Works granted a conservation easement to the Society for the Protection of NH Forests that provided for a permanent transfer of development rights subject to a right to terminate on thirty years notice. Auburn sent Water Works a notice of payment in lieu of taxes pursuant to a rate based upon the highest and best use of the property, the same method used for any tax appraisal. Auburn did not account for Water Works easement. Water Works filed an abatement application that was denied by the board of selectman. Water Works made payment under protest. Water Works then filed a petition for abatement in superior court. Auburn filed a motion to dismiss arguing that the easement did not comply with RSA chapters 79-A and 79-B. The trial court granted the Motion.

On appeal, the Court held that the easement appeared to meet the statutory definition of a conservation restriction under RSA 477:45, but complying with this statute does not mean that it must be considered in determining the taxable value of the property. A conservation restriction for tax purposes is construed narrowly: to qualify for favorable tax treatment, a conservation restriction must be “a permanent restriction of open space land by deed granted in perpetuity…and for the purposes of natural resource conservation.” The Water Works easement did not meet the definition as it was not a permanent restriction on land granted in perpetuity. Further, the easement property was excluded under the statute, as land for the purpose of water supply or flood control is specifically excluded. The Court further held that easement was a self-imposed restriction on the use of the subject property itself and therefore must comply with RSA 79-B before it can receive favorable tax treatment.

McLane, Graf, Raulerson & Middleton, P.A., of Manchester (Scott H. Harris & a., on the brief, Mr. Harris orally) for the petitioner. Devine, Millimet & Branch, P.A., of Andover, MA (George Moore and Stephanie E. Zywien on the brief and Mr. Moore orally for the respondent.

Zoning Law

William Batchelder & a. v. Town of Plymouth Zoning Board of Adjustment
No. 2008-847
May 7, 2010

  • Whether the trial court erred in affirming the Town of Plymouth Board of Adjustment’s (ZBA) finding that the removal of fill from the environmentally sensitive zone (ESZ) was incidental to lawful construction.
The Petitioner appealed ZBA’s approval of a site plan due to an alleged violation of zoning ordinance section 710 because the site plan allowed excavation in the environmentally sensitive area (ESZ). Section 710.4 of the ordinance prohibits certain activities in the ESZ, excepting that which is incidental to the lawful construction. After an appeal and rehearing, ZBA again denied the appeal, ruling that section 710 does not prohibit excavation on the proposed development because it was incidental to lawful construction. Following this order, the Petitioners then moved for a rehearing, which was denied. They then appealed to the Superior Court, alleging that the ZBA misinterpreted the phrase “incidental to lawful construction” contained in the ordinance. Superior Court affirmed the ZBA’s decision.

On appeal, Petitioner argued that the trial court erred in affirming the ZBA’s finding that the removal of fill from the ESZ was incidental to lawful construction. The Court applied the common definition of the term incidental as “subordinate to something of greater importance; having a minor role.” The project involves real estate development, not commercial exaction; therefore, the earthmoving activities necessary to elevate the construction are merely “subordinate to” or “incidental to” the project, thus concluding that the removal of the fill is incidental to lawful construction.

Upton & Hatfield, LLP of Concord, for the Petitioners, Donahue, Tucker & Ciandella PLLC of Exeter for the Town of Plymouth Zoning Board of Adjustment. Casassa and Ryan of Hampton for intervenor Topsfield Real Estate Corp.

Pike Industries, Inc. & a. v. Brian Woodward & a.
No. 2009-126
May 7, 2010
Affirmed in Part, Reversed in Part

  • Whether the trial court erred in ruling that ZBA of the Town of Madbury should have considered whether a party had the intent to abandon its nonconforming use of property before determining the use abandoned
Beginning prior to 1960, Petitioner, Pike Industries, Inc. (Pike) asphalt plant has continually operated an asphalt production plant in Madbury. In the mid-1960s, the town promulgated an ordinance that zoned the area surrounding the plant for residential and agricultural use, making the plant a pre-existing nonconforming use. However, the plant continued producing asphalt until October 2005. Between the time of October 2005 and August 2007, Petitioner did not produce any asphalt at the Madbury plant, but continued its use by maintaining, repairing, and upgrading the asphalt plant, advertising and soliciting bids, submitting emissions testing results to the State and performing mix designs at the site. In April 2007, Petitioner’s sister entity, Redimix Companies, Inc, filed a site plan application with the Madbury Planning Board proposing to replace the asphalt plant with a concrete patch facility. The board voted unanimously “that there was no discontinuance of use.” However, abutters appealed the decision citing that Madbury Zoning Ordinance provides that “whenever a non-confirming use has been discontinued for more than one year for any reason, such non-confirming use shall not thereafter be re-established, and the future use of the property shall be in conformity with the provision of the Ordinance.”

On appeal, ZBA determined by considering the “townspeople point of view, “the spirit of the ordinance,” and other potential uses of the site, that the production of the asphalt constituted the non-confirming use. Therefore, because Petitioner had not produced asphalt for more than one year, the ZBA ruled that Pike was ineligible to recommence asphalt production under the town’s ordinance. Pike appealed to the superior court, which reversed and remanded the ZBA’s decision based on the following: (1) the court concluded that ZBA relied upon improper considerations in interpreting the ordinance; (2) erred in defining “use” narrowly; and (3) ZBA should have considered whether Pike intended to abandon its pre-existing non-confirming use.

The Court: (1) affirmed the superior court’s finding that ZBA relied on improper considerations in interpreting the ordinance, like the “spirit of the ordinance,” when the language of the ordinance itself is plain and unambiguous; (2) ZBA’s definition of “use” only focused on one aspect of its commercial endeavor (no asphalt), but Petitioner continued to use the plant; (3) ZBA correctly decided it did not need to consider Pike’s intent to abandon the non-conforming use because the ordinance defines what constitutes abandonment.

Shaheen & Gordon, PA of Concord, for the appellees. Casassa and Ryan of Hampton for the appellants. Wyskiel, Boc, Tillinghast & Boduc, PA of Dover for the Town of Madbury

Election Law

Forsbery& a. v. Kearsarge Regional School District
No. 2009-360
May 7, 2010

  • Whether it was unlawful for the school board and municipal budget committee to add recommendations to an official ballot while removing a preamble summary from the warrant article.
In 2006, Forsberg initiated a citizen petition to amend the charter procedures for voting on budget proposals to automatically include an option to vote for a “default budget” in addition to other budget proposals. In 2007, a petition article appeared on the district's 2007 ballot to amend the district's charter to include a default budget. It was defeated. Thereafter, Forsberg and others petitioned for declaratory relief in superior court arguing that it is unlawful to: (1) add the school board and municipal budget committee recommendations to the official ballot; and (2) remove the preamble summary from the warrant article. The trial court dismissed their petition. The Court affirmed the trial court’s dismissal as the charter itself allowed for the addition of recommendations, the charter was not preempted by state rule, and the other issues were not raised by the appellants in their notice of appeal. Therefore, they would not be addressed.

Charles Forsberg for the petitioners. Soule, Leslie, Kidder, Sayward and Loughman, PLLC of Salem for the respondent.

Melissa S. Penson and Enrique F. Mesa, Jr. are a married legal team practicing in Manchester and Nashua, respectively. Penson is a member of the NH Bar, as well as the Mass. and Fla. bars; she practices criminal, family, and civil litigation with Smith-Weiss & Shepard. Mesa is licensed in Florida and practices solely immigration law with Ambassador George Bruno in Manchester.

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