Justia New Hampshire Supreme Court Opinion SummariesArticles Posted in Environmental Law
Appeal of Beal, et al.
Petitioners James Beal, Mary Beth Brady, Mark Brighton, Lenore Weiss Bronson, Nancy Brown, William R. Castle, Lawrence J. Cataldo, Ramona Charland, Lucinda Clarke, Fintan Connell, Marjorie P. Crean, Ilara Donarum, Joseph R. Famularo, Jr., Philippe Favet, Charlotte Gindele, Julia Gindele, Linda Griebsch, Catherine L. Harris, Roy W. Helsel, John E. Howard, Nancy B. Howard, Elizabeth Jefferson, Cate Jones, Robert McElwain, Mary Lou McElwain, Edward Rice, April Weeks, Michael Wierbonics, and Lili Wierbonics, appealed a Housing Appeals Board (HAB) order that reversed a decision of the Portsmouth Zoning Board of Adjustment (ZBA), which, in turn, had reversed certain approvals granted by the Portsmouth Planning Board (Planning Board) to respondent, Iron Horse Properties, LLC (Iron Horse). Iron Horse owned real property at 105 Bartlett Street in Portsmouth. In 2021, it requested various approvals from the Planning Board in connection with its proposed redevelopment of the site: three multi-family apartment buildings with a total of 152 dwelling units. Iron Horse sought a site review permit, lot line revision permit, conditional use permit (CUP) for shared parking, and a wetland CUP. The Planning Board granted the approvals, and the petitioners, describing themselves as “a group of abutters and other concerned citizens,” then filed an appeal with the ZBA. The ZBA granted the appeal, effectively reversing the Planning Board’s site plan and CUP approvals. Following denial of its motion for rehearing, Iron Horse then appealed the ZBA’s decision to the HAB. The HAB reversed the ZBA’s findings as to six of the petitioners’ claims and dismissed the remaining three claims. Petitioners took their appeal to the New Hampshire Supreme Court, raising a number of issues that were consolidated under two overarching questions: (1) whether Iron Horse’s proposed project met the six criteria for a wetland CUP set forth in section 10.1017.50 of the Portsmouth Zoning Ordinance; and (2) whether Iron Horse’s permit requests were barred under the doctrine of Fisher v. City of Dover, 120 N.H. 187 (1980). Finding no reversible error in the HAB’s decision, the Supreme Court affirmed. View "Appeal of Beal, et al." on Justia Law
Brown, et al. v. Saint-Gobain Performance Plastics Corporation, et al.
The United States District Court for the District of New Hampshire certified two questions of law for the New Hampshire Supreme Court's consideration. Plaintiffs, individuals who presently or formerly lived in the Merrimack area, brought tort claims, including negligence, nuisance, trespass, and negligent failure to warn, alleging that defendants’ manufacturing process at its facility in the Town of Merrimack used chemicals that included perfluorooctanoic acid (PFOA). They alleged PFOA was a toxic chemical that was released into the air from the Merrimack facility and has contaminated the air, ground, and water in Merrimack and nearby towns. As a result, plaintiffs alleged the wells and other drinking water sources in those places were contaminated, exposing them to PFOA, placing them at risk of developing health problems, including testicular cancer, kidney cancer, immunotoxicity, thyroid disease, high cholesterol, ulcerative colitis, and pregnancy induced hypertension. The first question from the federal circuit court asked whether New Hampshire recognized “a claim for the costs of medical monitoring as a remedy or as a cause of action” in plaintiffs' context. Depending on the answer to the first question, the second question asked, “what are the requirements and elements of a remedy or cause of action for medical monitoring” under New Hampshire law. Because the Supreme Court answered the first question in the negative, it did not address the second question. View "Brown, et al. v. Saint-Gobain Performance Plastics Corporation, et al." on Justia Law
Appeal of Conservation Law Foundation
Petitioner Conservation Law Foundation (CLF) appealed an order of the New Hampshire Waste Management Council (Council) denying CLF’s appeal of a permit, issued by the New Hampshire Department of Environmental Services (DES), which authorized the expansion of a landfill owned by respondent Waste Management of New Hampshire, Inc. (WMNH). CLF argued the Council erred in: (1) determining DES acted reasonably in granting the permit despite finding that a condition therein was ambiguous; and (2) premising its decision on the occurrence of future negotiations between DES and WMNH to resolve the ambiguity. After review, the New Hampshire Supreme Court affirmed, finding the permit’s ambiguities did not render the Council’s decision unlawful. View "Appeal of Conservation Law Foundation" on Justia Law
Girard v. Town of Plymouth
Plaintiffs Denis Girard and Florence Leduc appealed a superior court order upholding a decision of the Town of Plymouth Planning Board denying their subdivision application. They argued the trial court erred in upholding the planning board’s denial of their application because: (1) the board “engaged in impermissible ad hoc rule” and “decision making” when it relied upon an “overly broad” subdivision regulation; (2) the board relied on a subdivision regulation that did not specifically authorize the board to regulate wetlands; (3) the board’s regulation of wetlands is preempted by State statute; (4) the trial court unreasonably relied on certain evidence provided by a wetlands scientist; (5) the board’s decision to reject the application based upon the proposed subdivision’s impact on the wetlands was unreasonable; and (6) the board violated New Hampshire law by discussing the application at a hearing without notice to the applicants or the public. Finding no reversible error, the New Hampshire Supreme Court affirmed. View "Girard v. Town of Plymouth" on Justia Law
Appeal of Town of Lincoln
The Town of Lincoln, New Hampshire, appealed a Water Court order upholding a decision by the Department of Environmental Services (DES) ordering the town to repair the Pemigewasset River Levee. The Water Counsel determined the Town owned the levee pursuant to RSA 482:11-a(2013), and therefore was obligated to maintain and repair the levee. In support of its position, DES contends that, in the Assurance, the Town “agreed to take responsibility for the [l]evee’s ongoing maintenance and repair.”1 However, the fact that the Town undertook certain maintenance obligations in the Assurance does not mean that the additional obligations of “ownership” under RSA 482:11-a can or should be imposed upon the Town. The New Hampshire Supreme Court determined that the Water Council’s conclusion the Town “owned” the levee under RSA 482:11-a was dependent on flawed reasoning that Appeal of Michele, 168 N.H. 98 (2015) controlled the outcome of this case. The Supreme Court concluded the Town met its burden to show the Water Council was unreasonable. The Court did not decide the precise degree of ownership that made a person or entity an “owner” for the purposes of RSA 482:11-a, it held that the limited access easement held by the Town in this case fell short of that threshold. Because the Court’s holding on this issue was dispositive of this case, it declined to address the parties’ other arguments. View "Appeal of Town of Lincoln" on Justia Law
Town of Pembroke v. Town of Allenstown
This case presented two questions arising out of the operation of the Suncook Wastewater Treatment Facility (the “Facility”) in Allenstown, New Hampshire, for the New Hampshire Supreme Court's review. First, under an intermunicipal agreement, must defendant Town of Allenstown, share any of the profits generated from septage haulers who discharge their waste at the Facility with the plaintiff, Town of Pembroke? And second, after Allenstown used a portion of those profits to increase the Facility’s wastewater treatment capacity, must Allenstown allocate any of that increased capacity to Pembroke? Because the Supreme Court, as did the Superior Court, answered both questions “no,” the Supreme Court affirmed. View "Town of Pembroke v. Town of Allenstown" on Justia Law
Appeal of N. Miles Cook, III
Petitioner N. Miles Cook, III, appealed a Wetlands Council (Council) ruling upholding the decision of the New Hampshire Department of Environmental Services (DES) denying his request for a permit to reconstruct and extend his dock on the Piscataqua River. Because DES did not have the benefit of the New Hampshire Supreme Court’s interpretation of the term “need” as used in Env-Wt 302.01(a) and Env-Wt 302.04(a)(1) for determining whether an applicant has met the permit requirements, and because, as the Council noted, the central issue was whether petitioner “could justify the expanded dock proposal based on his ‘need’ to access navigable water on a more frequent basis than he currently experiences with the existing dock,” the Supreme Court vacated DES’s decision and remanded to the Council with instructions to remand to DES for further consideration in light of the definition the Court adopted for the purposes of this opinion. View "Appeal of N. Miles Cook, III" on Justia Law
Aranosian Oil Co., Inc. v. New Hampshire
The Environmental Protection Agency (EPA) required that owners of underground storage tanks demonstrate their ability to pay cleanup costs and compensate third parties for bodily injury and property damage arising out of releases of petroleum products from their tanks. New Hampshire’s Oil Discharge and Disposal Cleanup Fund (ODD Fund) was an EPA-approved program that complied with the federal requirement. In 2003, the State sued several gasoline suppliers, refiners, and chemical manufacturers seeking damages for groundwater contamination allegedly caused by methyl tertiary butyl ether (MTBE). In 2012, petitioners sought a declaratory judgment and equitable relief against the State. Each petitioner was a “distributor” of oil under RSA chapter 146-D and paid fees into the ODD Fund. They alleged that “[t]o date, the costs of MTBE remediation in the State of New Hampshire has been paid for primarily through” the ODD Fund, and that that fund was financed, in part, through fees that they paid. Petitioners sought a declaration that those fees “are unconstitutional as the [State] has recovered and/or will recover funds from the MTBE Lawsuit for the cost of MTBE remediation,” and that those fees should be reimbursed to them from: (1) “the settlement proceeds the [State] has received and will receive through the MTBE Litigation”; (2) “any future recovery the [State] receives through the MTBE Litigation”; and (3) “[a]dditionally, or in the alternative, . . . from the funds recovered, and/or to be recovered in the future in the MTBE Litigation, . . . under principles of equitable subrogation and/or unjust enrichment.” On appeal, the petitioners argue that the trial court erred in ruling that they lacked standing to seek reimbursement of their fees from the settlement funds. They also argued that the trial court erred in ruling that their equitable claims are barred by sovereign immunity. Find View "Aranosian Oil Co., Inc. v. New Hampshire" on Justia Law
Appeal of Old Dutch Mustard Co., Inc.
Petitioner Old Dutch Mustard Co., Inc. appealed a New Hampshire Waste Management Council (Council) decision upholding a determination by the New Hampshire Department of Environmental Services (DES) to grant a permit to intervenor Pioneer Point Enterprises, LLC (Pioneer), to build and operate a solid waste facility adjacent to the petitioner's property. In May 2008, Pioneer applied for a permit to operate a solid waste management facility in an existing structure near the Souhegan River in Greenville. The Souhegan River was a "designated river" under the New Hampshire Rivers Management and Protection Act (RMPA), and under the Comprehensive Shoreland Protection Act (CSPA). DES denied the permit, concluding that the proposed facility violated the 250-foot setback requirement for solid waste facilities specified in the RMPA. Approximately six months later, Pioneer submitted an amended application, accompanied by a request for a waiver to build a new access driveway within fifty feet of the petitioner’s property. After the hearing, the Council ruled that the petitioner failed to prove that the issuance of the permit and waiver was either unreasonable or unlawful under the circumstances of this case. Petitioner argued on appeal that the Council erred when it: (1) concluded that only Unit 2 constituted the facility, or, alternatively, that Unit 2 itself did not violate the 250-foot setback; (2) failed to rule that because of Pioneer’s pre-permit construction, DES was required to deny the permit; (3) failed to consider the impact on the petitioner of granting the driveway setback waiver; and (4) reviewed the waiver of the driveway setback under an incorrect standard. Finding no reversible error, the Supreme Court affirmed. View "Appeal of Old Dutch Mustard Co., Inc." on Justia Law
Town of Newbury v. New Hampshire Fish & Game Dept.
Respondents New Hampshire Fish & Game and the New Hampshire Council on Resources and Defelopment (CORD) appealed a superior court decision that granted summary judgment to petitioners Town of Newbury and Lake Sunapee Protective Association. Petitioners challenged CORD's decision to approve Fish & Game's design of a boat launch. The trial court held that CORD lacked authority to approve the launch because it was a class III public highway, and could not approve "new highway projects." Disagreeing with the trial court's interpretation of RSA 162-C:6, the Supreme Court reversed and remanded for further proceedings. View "Town of Newbury v. New Hampshire Fish & Game Dept." on Justia Law