Justia Zoning, Planning & Land Use Opinion Summaries

Articles Posted in New Hampshire Supreme Court
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Defendant Joseph Chenard appealed a superior court ruling that he operated or maintained a junk yard in violation of RSA 236:114. Plaintiff Town of Lincoln (town) cross-appealed the trial court’s denial of its request for costs and attorney’s fees. Defendant owned the property at issue, consisting of four lots located in the town's "General Use" zoning district, which allowed junk yards only by special exception. The properties contained “large amounts of personal belongings” stored “both outdoors and in a number of sheds, which are generally in a dilapidated condition.” During its view of the properties, the court observed “old or used scrap metal including numerous machine or automotive parts, tires, wheels, cables and wiring, woodstoves, snowplows, construction debris, steel drums, plastic barrels, and other detritus.” In addition, the court observed “several automobiles that did not appear to be in working order, as well as old snowmobiles, lawnmowers, and ATVs, an old boat, and two semi-trailers.” All of the materials stored on defendant’s properties belonged to him and were stored there for his personal use. Defendant did not have a license to operate a junk yard business, nor did he have a special exception from the town. The superior court ultimately ordered defendant to end his violation of RSA 236:114 and abate the nuisance by a certain date and, if he failed to do so, authorized the town to impose a civil penalty of up to $50 per day for every day the nuisance continued and until such time as the nuisance was abated to the town’s satisfaction. The trial court denied the town’s request for costs and attorney’s fees. Finding that the trial court did not err in finding that provisions of RSA 236:111-:129 applied to defendant’s properties, and that defendant was operating or maintaining a junk yard in violation of RSA 236:114, and that the town was not entitled to attorney's fees, the New Hampshire Supreme Court affirmed. View "Town of Lincoln v. Joseph Chenard" on Justia Law

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Petitioner City of Berlin (City) appealed a New Hampshire Board of Tax and Land Appeals (BTLA) order determining that the City over-assessed respondent Public Service Company of New Hampshire d/b/a Eversource Energy (PSNH), for tax year 2017. The City challenged the BTLA’s decision to apply the New Hampshire Department of Revenue Administration (DRA) 2017 median equalization ratio to determine the proportionality of the City’s assessment of PSNH’s J. Brodie Smith hydroelectric facility (Smith Hydro). It argued the 2016 median equalization ratio — the most recent DRA ratio available at the time the City prepared the 2017 tax assessment — should have applied. Because the New Hampshire Supreme Court agreed, it reversed and remanded. View "Appeal of City of Berlin" on Justia Law

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Plaintiffs Merrimack Premium Outlets, LLC and Merrimack Premium Outlets Center, LLC, appealed, and defendant Town of Merrimack (Town), cross-appealed superior court orders in an action challenging the Town’s reassessment of taxable property. Merrimack Premium Outlets, LLC owned a large property in Merrimack (the Property) that it leased to Merrimack Premium Outlets Center, LLC. The latter entity operated a retail outlet shopping mall, known as the Merrimack Premium Outlets, on the Property. In 2016, the Town conducted a revaluation of all taxable property within the municipality. As a result, the Property was assessed at $86,549,400. Later that year, the Town became aware that the Property had been used in or about 2013 as collateral for a loan and had been valued for that purpose at $220,000,000. Based on this information, the Town believed that it had severely undervalued the Property. Accordingly, the Town reassessed the Property for the 2017 tax year at $154,149,500 (the 2017 reassessment). Plaintiffs then brought this action for declaratory judgment and injunctive relief, alleging there were no changes in either the Property or the market that justified the 2017 reassessment. The superior court ruled in favor of the Town. The New Hampshire Supreme Court concluded that the trial court erred in ruling that the Town had the authority to correct its undervaluation of the Property by adjusting its assessment pursuant to RSA 75:8. Given this disposition, the Court did not address the parties' remaining arguments. View "Merrimack Premium Outlets, LLC et al. v. Town of Merrimack" on Justia Law

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Plaintiff Bellevue Properties, Inc. (Bellevue) appealed a superior court order dismissing its petition to quiet title and for declaratory judgment brought against the defendants, 13 Green Street Properties, LLC and 1675 W.M.H., LLC (collectively, 13 Green Street). Bellevue owned and operated the North Conway Grand Hotel, which abutted Settlers’ Green, an outlet shopping center owned by 13 Green Street. Common Court, a road that encircled the hotel and much of Settlers’ Green, provided access to the properties. Half of the road is private, and half is public. A recorded easement allowed hotel guests to travel over a private road and the private section of Common Court. 13 Green Street planned to construct a mixed-use development in Settlers’ Green, including a supermarket and parking lot, on an undeveloped parcel of land (Lot 92) and an abutting lot (Lot 85). McMillan Lane ran through Lots 92 and 85. To construct a single, continuous development across both lots, 13 Green Street sought to replace McMillan Lane with a new private road that, like McMillan Lane, would run from Barnes Road to the public section of Common Court. In November 2019, Bellevue filed this petition to “[q]uiet title to the land” underneath McMillan Lane “by declaring that [Bellevue] has an easement in the form of a private right of access over same” pursuant to RSA 231:43, III. 13 Green Street moved to dismiss, arguing that Bellevue could not assert a statutory right of access under RSA 231:43, III because its property did not directly abut McMillan Lane. The trial court agreed with 13 Green Street and dismissed Bellevue’s petition. Finding no reversible error in the trial court's judgment of dismissal, the New Hampshire Supreme Court affirmed. View "Bellevue Properties, Inc. v. 13 Green Street Properties, LLC et al." on Justia Law

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Defendant Town of Windham (Town) appealed a superior court order denying its motion to dismiss the tax abatement appeal of plaintiff Shaw’s Supermarkets, Inc. (Shaw’s), for lack of standing. The Town also appealed the superior court's order granting Shaw’s requested tax abatement. The owner of the property at issue leased 1.5 acres of a 34.21-acre parcel in Windham established as Current Use. The lease, in relevant part, required Shaw’s to pay the Owner its pro rata share of the real estate taxes assessed on the entire parcel, and the Owner was required to pay the taxes to the Town. If the Owner received a tax abatement, Shaw’s was entitled to its pro rata share of the abatement. In 2017, Shaw’s was directed by the Owner to pay the property taxes directly to the Town, and it did. Shaw’s unsuccessfully applied to the Town’s selectboard for a tax abatement and subsequently appealed to the superior court. The Town moved to dismiss, arguing that Shaw’s lacked standing to request a tax abatement on property it did not own. Finding the superior court did not err in finding Shaw's had standing to seek the abatement, or err in granting the abatement, the New Hampshire Supreme Court affirmed the superior court's orders. View "Shaw's Supermarkets, Inc. v. Town of Windham" on Justia Law

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Petitioners, the Towns of Chester and Hudson (collectively, Towns), appealed a Board of Tax and Land Appeals (BTLA) order granting respondent Public Service Company of New Hampshire d/b/a Eversource Energy (PSNH) abatements of taxes assessed against its property located in Chester for tax years 2014 and 2016 and in Hudson for tax years 2014, 2015, and 2016. PSNH submitted an appraisal report prepared by its expert, Concentric Energy Advisors, Inc., setting forth the expert’s opinion of the aggregate fair market value of PSNH’s taxable property located in each municipality for each tax year. Two appraisers employed by the Towns’ expert, George E. Sansoucy, P.E., LLC (GES), used a substantially similar methodology in appraising the fair market value of the land interests. The BTLA compared the equalized market value to the aggregate assessed value for each municipality for each tax year. The BTLA concluded that an assessment was unreasonable and granted an abatement when it determined that the difference between the equalized market value and the aggregate assessed value was greater than five percent. The Towns argued that because both GES and Concentric relied upon the assessed value of PSNH’s land interests in reaching their opinions of fair market value, the values that the BTLA incorporated into its analysis “were already proportionate” and “should not have had the equalization ratio[s] applied to them.” The BTLA denied the Towns’ motion for reconsideration, noting that it based its calculations upon values that “were supplied by the [Towns] themselves in the stipulations agreed to by them” and adopting the arguments PSNH raised in its objection. Finding no reversible error in the BTLA's order, the New Hampshire Supreme Court affirmed. View "Appeal of Town of Chester et al." on Justia Law

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Plaintiff New Hampshire Alpha of SAE Trust (SAE) appealed a superior court order ruling that the Town of Hanover Zoning Board of Adjustment (ZBA) had subject matter jurisdiction to hear SAE’s administrative appeal in the related case of New Hampshire Alpha of SAE Trust v. Town of Hanover, 172 N.H. 69 (2019) (SAE I). Defendant Town of Hanover (Town) cross-appealed the trial court’s denial of its request for attorney’s fees. Dartmouth College notified the Planning and Zoning Office that the chapter of the New Hampshire Alpha Chapter of Sigma Alpha Epsilon was suspended by the national organization. The College officially derecognized the fraternity, which meant the facility became ineligible to operate as an “I” district student residence. Continued use of the property as a residence would have been a violation of the zoning ordinance. In subsequent proceedings, SAE challenged the ZBA’s jurisdiction to hear SAE’s appeal in the first instance. The Town argued it was entitled to attorney’s fees because SAE’s challenge in this case was frivolous with no good faith basis in fact or law, and asserted that it was only intended to waste time and needlessly delay final judgment in this matter. Finding no reversible error in the superior court’s judgment, the New Hampshire Supreme Court affirmed judgment to SAE’s appeal and the Town’s cross-appeal. View "New Hampshire Alpha of SAE Trust v. Town of Hanover" on Justia Law

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Plaintiffs Krainewood Shores Association, Inc. and Black Cat Island Civic Association appealed a superior court decision granting defendants' Town of Moultonborough (Town) and TYBX3, LLC motion to dismiss. In 2018, TYBX3 sought to develop a vacant lot into condominium storage units for the purpose of storing large “toys,” such as boats, snowmobiles, and motorcycles. The Town’s planning board approved the application in May 2019. Plaintiffs appealed the planning board's decision, and defendants moved to dismiss, arguing the trial court lacked subject matter jurisdiction to hear the complaint as not timely filed. Specifically, the defendants argued that the plaintiffs missed the 30-day deadline imposed by RSA 677:15, I, to file an appeal of a planning board’s decision. To this, the trial court concurred and granted the motion. On appeal, the plaintiffs argue that the trial court erred in granting defendants’ motion to dismiss, and erred in denying plaintiffs’ motion to amend their complaint. Because the trial court did not decide whether to allow plaintiffs to amend their complaint, the New Hampshire Supreme Court vacated the order denying plaintiffs’ motion to amend, and remanded for the trial court to decide, in the first instance, whether plaintiffs’ amended complaint could proceed. The Court expressed no opinion as to the parties’ arguments regarding whether plaintiffs’ amended complaint would cure the jurisdictional defect. View "Krainewood Shores Association, Inc. v. Town of Moultonborough" on Justia Law

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This appeal arose from a consolidated cases filed by plaintiff Northern New England Telephone Operations, LLC d/b/a FairPoint Communications-NNE (FairPoint), against several New Hampshire towns and cities, asserting claims of ultra vires taxation and disproportionate taxation. As “representative municipalities” in the “test cases” established for this litigation, defendants, the Town of Durham and the Town of Hanover (Towns), appealed two superior court orders challenging: (1) the grant of summary judgment on the ultra vires ruling because they contended the agreements authorizing such use or occupation did not satisfy the requirements of RSA 72:23, I(b) (2012) (amended 2017, 2018, 2020); and (2) the superior court’s decision after trial, arguing that the court committed several errors in concluding that FairPoint was entitled to abatements of its tax assessments from the Town of Durham and the Town of Hanover for tax years 2013 and 2011 respectively. The New Hampshire Supreme Court agreed with the Towns that the superior court erred with respect to the tax on the value of FairPoint's use or occupation of municipal rights-of-way was ultra vires. FairPoint’s use or occupation of municipal rights-of-way was not pursuant to a perpetual lease that gave rise to an independently taxable property interest; FairPoint met its burden to prove it was taxed disproportionately by the Towns. Judgment was affirmed in part, reversed in part and consequently abating the two tax assessments at issue. View "Northern New England Telephone Operations, LLC d/b/a FairPoint Communications - NNE v. Town of Acworth" on Justia Law

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Plaintiff Bellevue Properties, Inc. appealed a superior court order affirming the Town of Conway’s decision to discontinue a public way that provided access to the plaintiff’s property. Plaintiff argued the trial court applied an incorrect legal standard to evaluate the Town’s decision and erred in concluding that the Town’s interests in discontinuing the road outweighed plaintiff’s interest in its continuance. After review, the New Hampshire Supreme Court determined the trial court applied the proper legal standard, and its decision was supported by the record. View "Bellevue Properties, Inc. v. Town of Conway" on Justia Law