Justia New Hampshire Supreme Court Opinion SummariesArticles Posted in Real Estate & Property 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
Maddock, et al. v. Higgins
Plaintiffs Todd and Margaret Maddock appealed a superior court order in favor of defendant Michael Higgins on plaintiffs’ petition to quiet title and their request for declaratory judgment, equitable relief, and a temporary injunction. The dispute arose over clearing of part of the property, a driveway and parking area between the parties abutting properties. Plaintiffs argued the court erred by: (1) failing to find that monuments in the field controlled over bearings or distances in a deed or plan; (2) finding that plaintiffs did not establish title by adverse possession; (3) finding that plaintiffs did not meet their burden to establish a boundary by acquiescence; (4) dismissing plaintiffs’ trespass claim; and (5) finding that the testimony of one of defendant’s witnesses was credible. After review, the New Hampshire Supreme Court concluded the trial court properly found that the field monuments did not control the boundaries established by the parties’ deeds, properly found that plaintiffs did not establish a boundary by acquiescence, properly granted plaintiffs a prescriptive easement over the limited adjacent area for the purposes of snow removal, and properly assessed the credibility of the witnesses. Furthermore, the Court concluded the trial court did not err by dismissing plaintiffs’ trespass claim but reversed, in part the trial court’s adverse possession decision as it pertained to plaintiffs’ claims concerning their driveway and parking area. View "Maddock, et al. v. Higgins" on Justia Law
Brady v. Sumski
The United States District Court for the District of New Hampshire certified two questions of law for the New Hampshire Supreme Court's consideration. This case began in December 2021 when plaintiff Katherine Brady filed a Chapter 7 bankruptcy petition. At the time of the petition, plaintiff resided with her husband and children in a single-family residence. The property was titled only in plaintiff’s name. On Schedule C of the petition, plaintiff claimed a homestead exemption under RSA 480:1 for $120,000. Subsequently, plaintiff amended her petition to claim an additional $120,000 homestead exemption on behalf of her non-debtor, non-owner spouse. The Chapter 7 Bankruptcy Trustee filed an objection to the second claimed homestead exemption. In March 2022, plaintiff converted her case to one under Chapter 13. Subsequently, plaintiff amended Schedule D of her petition to add a second secured claim for her spouse for $120,000 based upon her spouse’s claimed homestead exemption. Defendant Lawrence Sumski, Chapter 13 Bankruptcy Trustee, asserted the same homestead exemption objection as the predecessor Chapter 7 Trustee. Following a hearing, the Bankruptcy Court concluded that to maintain a homestead right pursuant to RSA 480:1, a person had to demonstrate both occupancy and ownership interests in the homestead property. Because plaintiff’s husband was not an owner of the property, the court concluded that he was not entitled to a homestead exemption under RSA 480:1, and plaintiff could neither assert a homestead exemption on behalf of her husband, nor claim that he possesses a lien that secures his interest in the property. The New Hampshire Supreme Court concluded RSA 480:1 included an ownership requirement that applied to all real property occupied as a homestead and a non-owning occupying spouse of another who held a homestead right, pursuant to the statute, did not hold a present, non-contingent homestead right of his or her own. With respect to the district court’s second question, the Supreme Court exercised its discretion and declined to answer because a response to that question was not “determinative of the cause then pending in the certifying court.” View "Brady v. Sumski" on Justia Law
AZNH Revocable Trust & a. v. Spinnaker Cove Yacht Club Association, Inc.
Plaintiffs AZNH Revocable Trust (AZNH) and John and Susan Sullivan, trustees, appealed a superior court order denying their request for preliminary injunctive relief against defendant Spinnaker Cove Yacht Club Association, Inc. (the Association), and granting the Association’s motion to dismiss. Spinnaker Cove Yacht Club (Spinnaker Cove) is a condominium consisting of ninety-one units and common area. Appurtenant to each unit is the exclusive right to use a boat slip corresponding to that unit. The Association was an organization created to manage and control Spinnaker Cove. Plaintiffs requested the court to enjoin the Association “from expending assessment monies or incurring any debt to purchase land outside the Condominium.” They also sought declarations that the condominium instruments of Spinnaker Cove and New Hampshire law prohibited the Association from both “expending assessment monies or incurring any debt to purchase land outside the Condominium to add guest parking spaces” and “expanding the Condominium.” The court reasoned that “[b]ecause the Condominium Act allows the Association to purchase land, and the Declaration does not prohibit same,” the plaintiffs’ complaint “fails to state a claim as a matter of law.” The New Hampshire Supreme Court concurred with the trial court's conclusion and affirmed. View "AZNH Revocable Trust & a. v. Spinnaker Cove Yacht Club Association, Inc." on Justia Law
Raymond v. Town of Plaistow
Plaintiff Jeffrey Raymond, as Trustee of J&R Realty Trust, appealed a superior court order affirming a decision of the Zoning Board of Adjustment (ZBA) for the Town of Plaistow denying the plaintiff’s variance request and upholding the zoning determination of the town’s Building Inspector (BI). Plaintiff argued the court erred in affirming the ZBA’s decision because: (1) the record supported plaintiff’s contention that its proposed use of the property falls within the definition of a Trade Business; and (2) the ZBA unlawfully considered prior zoning violations at other properties operated by plaintiff’s anticipated tenant when making its determinations. After review, the New Hampshire Supreme Court concluded that, based upon the plain language of the town’s zoning ordinance, plaintiff’s proposed use of the property constituted a Trade Business. Accordingly, the Court reversed the trial court’s order upholding the ZBA’s decision denying plaintiff’s appeal of the BI’s zoning determination. View "Raymond v. Town of Plaistow" on Justia Law
CC 145 Main, LLC v. Union Mutual Fire Insurance Company
Defendant Union Mutual Fire Insurance Company appealed a superior court grant of summary judgment to plaintiff CC 145 Main, LLC, in a declaratory judgment action regarding the interpretation of an insurance policy exclusion. CC 145 Main owned an apartment building and purchased a “Businessowners Coverage” insurance policy that included “all risk” property insurance, which provided that Union Mutual would “pay for direct physical loss of or damage to” the covered property, unless coverage was specifically limited or excluded by the policy. The insured property sustained damage when a tenant poured cat litter down a toilet, clogging an interior pipe and causing water to overflow from a shower and toilet. The property required significant cleaning and repair, and tenants were required to temporarily relocate. CC 145 Main filed a claim with Union Mutual for water damage, which Union Mutual denied pursuant to a provision in the insurance policy excluding coverage for damage caused by “[w]ater that backs up or overflows or is otherwise discharged from a sewer, drain, sump, sump pump or related equipment.” CC 145 Main filed a complaint seeking a declaration that the water exclusion does not apply to its claim. Union Mutual filed a motion for summary judgment, arguing that the damage at issue was caused by water that overflowed from “drains” within the meaning of the exclusion. The trial court concluded it was unclear whether the word “drain” in the water exclusion applied to shower and toilet drains and, therefore, the water exclusion was ambiguous and had to be construed in favor of CC 145 Main. Defendant challenged the trial court’s ruling that the policy’s water damage exclusion was ambiguous and its decision to construe the policy, therefore, in favor of CC 145 Main. But finding no reversible error, the New Hampshire Supreme Court affirmed the trial court. View "CC 145 Main, LLC v. Union Mutual Fire Insurance Company" on Justia Law
Loik v. Loik
Plaintiff David Loik appealed a superior court order dismissing his petition for the partition and sale of real estate. At issue was whether the superior court or the circuit court had subject matter jurisdiction over this matter. Because the New Hampshire Supreme Court concluded that, under the applicable statute, the circuit court and not the superior court had subject matter jurisdiction, it vacated and direct the superior court to transfer the petition to the circuit court. View "Loik v. Loik" on Justia Law
Clearview Realty Ventures, LLC v. City of Laconia; et al.
Plaintiffs Clearview Realty Ventures, LLC, JHM HIX Keene, LLC, VIDHI Hospitality, LLC, NAKSH Hospitality, LLC, 298 Queen City Hotel, LLC, ANSHI Hospitality, LLC, 700 Elm, LLC, Bedford-Carnevale, LLC, and Carnevale Holdings, LLC, owned commercial real estate on which they operated hotels, some of which offered restaurant services along with banquet or function facilities. They contended that the COVID-19 pandemic was a “natural disaster” and that their buildings were “damaged” within the meaning of RSA 76:21, I. Plaintiffs sought relief from the New Hampshire municipalities involved: the Cities of Laconia, Keene, and Manchester, and the Town of Bedford. After denial of their applications, they appealed to the superior court in the applicable county. Observing that there were thirteen separate lawsuits pending in six counties, they then filed an assented-to motion for interlocutory transfer without ruling and motion to consolidate to allow the coordinated transfer of the common questions of law to the New Hampshire Supreme Court. In this interlocutory transfer without ruling, the Supreme Court was asked to determine: (1) whether, for purposes of RSA 76:21, the COVID-19 pandemic constituted a “natural disaster”; and (2) if so, whether the buildings owned by the plaintiffs were “damaged” by COVID-19 such that they were “not able to be used for [their] intended use” within the meaning of RSA 76:21, I. The Court answered the second question in the negative. View "Clearview Realty Ventures, LLC v. City of Laconia; et al." on Justia Law
TransFarmations, Inc. v. Town of Amherst
Plaintiff TransFarmations, Inc. appealed a superior court decision to uphold the Town of Amherst Planning Board's (Town) decisions to deny TransFarmations' two successive applications for a conditional use permit (CUP). In May 2019, TransFarmations requested a “Conceptual Meeting” with the Town’s planning board (Board) concerning its proposed development of an approximately 130-acre property known as the Jacobson Farm. It stated that the “development will be designed to meet many of the desired attributes the Town . . . has articulated in [its] Master Plan and [Integrated] Innovative . . . Housing Ordinance (IIHO),” including workforce housing and over-55 housing. TransFarmations subsequently submitted a CUP application under the IIHO for a planned residential development containing 64 residential units. In its challenge to the decisions, TransFarmations argued both that the decisions failed to adequately state the ground for denial and that the Board acted unreasonably because the second CUP application was materially different from the first. The trial court concluded that the Board adequately provided the reason for its first decision on the record because “the Board members discussed, in detail, their reasons for concluding that no material differences [between the first and second applications] existed.” The court also concluded that “the Board acted reasonably and lawfully in reaching [that] decision.” Accordingly, the court affirmed both of the Board’s decisions. TransFarmations contended the trial court erred in affirming the Board’s decision not to accept the second application because TransFarmations submitted that application “at the Board’s invitation and with the information the Board requested.” The New Hampshire Supreme Court concluded TransFarmations’ second application supplying the requested information was “materially different from its predecessor, thus satisfying Fisher.” Because the trial court’s decision concluding otherwise misapplied Fisher v. Dover, it was legally erroneous. Accordingly, the Court reversed the trial court’s order as to the second CUP decision and remanded. View "TransFarmations, Inc. v. Town of Amherst" on Justia Law
Appeal of Eleonora Porobic
This case involved a challenge to the Town of Bartlett’s 2018 tax assessment of a single-family home located on 0.88 acres of land owned by petitioner Eleonora Porobic. In 2017, the property was assessed at $206,000. In 2018, following the construction of an addition to the house and the clearing of trees, which expanded a view of the mountains, as well as a “full update” of property values in the Town by its new assessing contractor, Avitar Associates of New England, Inc., the property was assessed at $408,400. After the Town denied Porobic’s abatement request, she appealed to the New Hampshire Board of Tax and Land Appeals (BTLA), objecting to the Town’s position that the value of the land had increased by $153,000 as a result of the expanded view of the mountains. Porobic submitted an appraisal of the property prepared by Nanci Stone-Hayes, a certified general appraiser, valuing the property at a fair market value of $270,000 (Hayes Appraisal), and argued that she was entitled to an abatement based on that valuation. The Town, however, defended its assessment, arguing that the Hayes Appraisal understated the value of the expanded view. The BTLA found neither party’s valuation entirely persuasive, determining the Hayes Appraisal understated the property’s market value, and the Town’s assessment overstated it. Consequently, the BTLA concluded that Porobic had carried her burden to demonstrate that the property was assessed at a higher percentage of fair market value than the general level of assessment in the Town, and that, as such, she was paying more than her proportional share of taxes. The BTLA granted Porobic’s request for an abatement, and reduced the property’s 2018 assessed value to $345,400. Porobic appealed the new valuation, but the New Hampshire Supreme Court found no reversible error in the BTLA's decision and affirmed it. View "Appeal of Eleonora Porobic" on Justia Law