Justia Environmental Law Opinion Summaries

Articles Posted in New Hampshire Supreme Court
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Petitioners Town of Newbury and Lake Sunapee Protective Association appealed a Wetlands Council decision. The Council upheld a grant by the Department of Environmental Services of a shoreland impact permit to respondent New Hampshire Fish & Game for the construction of a public boat launch with associated parking on the shore of Lake Sunapee. Petitioners contended it was error to uphold the Department's decision because the Department had violated two provisions of the Comprehensive Shoreland Protection Act with an unnecessary launch contrary to state law. Finding no error, the Supreme Court affirmed. View "Appeal of Lake Sunapee Protective Association" on Justia Law

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Petitioners Thomas Morrissey, Margaret Russell, Dorothy Sears, Reginald Rogers, Barbara Sanders and others appealed a ruling of the New Hampshire Department of Environmental Services (DES) Wetlands Council (Council) that affirmed the issuance by the Wetlands Bureau of a permit to respondent Town of Lynne. Petitioners argued that when issuing the wetlands permit, the Bureau and Council did not consider the total wetlands impact of the proposed project because they misinterpreted the scope of the Supreme Court's ruling in an earlier case. Agreeing that the Bureau misinterpreted the applicable statutes, and it did not consider the total wetlands impact of the proposed project, the Supreme Court vacated DES' decision and remanded the case to the Council for further proceedings. View "Appeal of Thomas Morrissey" on Justia Law

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In this declaratory judgment proceeding, the defendant, Citizens Insurance Company of America, appealed a superior court order which ruled in favor of the plaintiff, The Barking Dog, Ltd., which operates a dog kennel and grooming business at several locations in New Hampshire. The court ruled that an insurance policy issued by the defendant provided coverage for damage to the plaintiff’s septic system and ordered the defendant to pay the plaintiff $20,000, the agreed upon damage amount. The court also ruled that the defendant was not prejudiced by the plaintiff’s failure to disclose its expert’s report in a timely manner or its failure to disclose its expert’s curriculum vitae and, accordingly, permitted the plaintiff’s expert to testify at trial. The defendant argued that both rulings were error. Finding no error, the Supreme Court affirmed. View "The Barking Dog, Ltd. v. Citizens Insurance Company of America" on Justia Law

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Petitioner Town of Seabrook appealed an order of the New Hampshire Department of Environmental Services (DES) which granted Respondent NextEra Energy Seabrook, LLC (NextEra), several tax exemptions under RSA 72:12-a (Supp. 2011). Upon review of the record, the Supreme Court found that the record supported DES' decisions except for one: the Court found no evidence in the record to support an increase in a percentage allocation allowed under the statute. Accordingly, the Court partly affirmed, partly reversed the DES' decision, and remanded the case for further proceedings. View "Appeal of Town of Seabrook " on Justia Law

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The Supreme Court granted an interlocutory appeal from the superior court that partially granted and partially denied the summary judgment motion filed by Defendants Lakes Region Water Company and Thomas Mason (collectively LRWC). The question before the Court was whether the superior court erred in concluding that Defendants were not exempt from the Consumer Protection Act to the extent that they allegedly misrepresented that the water they provided was safe for use and consumption. Answering in the affirmative, the Supreme Court reversed the trial court’s denial of partial summary judgment as to the claims of the plaintiffs Jo Anne Rainville, Carl Beher, Lisa Mullins d/b/a The Olde Village Store, and approximately fifty others, under the Consumer Protection Act (CPA) which sought damages for alleged misrepresentations about the quality of water provided. View "Rainville v. Lakes Region Water Company, Inc." on Justia Law

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Plaintiff Jonathan Doyle appealed a superior court order that granted summary judgment to Defendants the Commissioner of the New Hampshire Department of Resources and Economic Development and the Monadnock State Park Manager (collectively, DRED), and that denied his motion for summary judgment. In 2009, Plaintiff staged a "Bigfoot" sighting (with himself dressed as Bigfoot) on Mount Monadnock. At the top of the mountain, he put on a costume, and filmed conversations he had with other hikers. On his way back down, he encountered two park staff members, and persuaded them to write a note saying there had been a "sighting" on the mountain. To garner publicity for his next appearance, Plaintiff had a friend write a press release for the local paper. Much to their annoyance, Park officials began fielding media calls trying to confirm whether reports of the sighting were true. When Plaintiff returned for more filming, he was confronted by park officials checking whether Plaintiff had a "special-use permit" to continue filming. With none, Plaintiff and his crew were asked to leave the mountain. Plaintiff subsequently brought a declaratory judgment action against DRED, arguing that Res 7306.01(a) violated the right to free speech contained in the New Hampshire Constitution and the First Amendment to the United States Constitution. He also sought a permanent injunction, nominal damages, costs and fees. The trial court granted summary judgment in favor of DRED, ruling that Plaintiff failed to show that Res 7306.01(a) was unconstitutional. On appeal, Plaintiff argued the trial court erred because Res 7306.01(a) was void for vagueness, overbroad on its face and not narrowly tailored, and also overbroad as applied to Plaintiff's small-scale project. Upon review, the Supreme Court reversed the grant of summary judgment in favor of DRED: "More troubling is that this regulation needlessly stifles political speech, an integral component to the operation of the system of government established by our Constitution." View "Doyle v. New Hampshire Dep't of Resources & Econ. Dev." on Justia Law

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Defendant Town of Madison Planning Board appealed and Plaintiffs Thomas and Margaret Ettinger cross-appealed a superior court's decision which held that a private session of the Board violated the state's Right-to-Know Law (RTK) and denied Plaintiffs' request for attorney fees. In June 2009, the Pomeroy Limited Partnership (Pomeroy) received conditional approval from the Board to convert the buildings on its property to a condominium ownership form and to convey part of the property to the Nature Conservancy. In January 2010, Plaintiffs, whose property abuts the Pomeroy property, requested a public hearing to allow them to challenge the approval of the condominium plan. The Board scheduled a public hearing for March 3, 2010, to consider whether to grant final approval of the Pomeroy application. Plaintiffs' attorney appeared at that hearing. At the scheduled time of the hearing, the Board went into a private session for thirty minutes in which they read emails from the Board's attorney, a memorandum that summarized legal advice and letters from Plaintiffs' attorney. The Board then reopened the hearing and then after hearing Plaintiffs' attorney on the matter, granted final approval of the Pomeroy application. Plaintiffs sued alleging the Board violated the RTK law. The superior court agreed that the private session violated the RTK law, but refused to invalidate the Board's approval of the Pomeroy application. Upon review, the Supreme Court found that while the Board's written communications from its counsel may be protected from disclosure under the RTK law, the meeting itself need not have been closed to the public. Further, the Court affirmed the trial court's denial of Plaintiffs' attorney fees: "[w]e cannot find that … the Board should have known that the nonpublic session violated the Right-to-Know Law" to therefore entitle them to fees. View "Ettinger v. Town of Madison Planning Board " on Justia Law

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Petitioners Thomas Morrissey, Dorothy Sears, Reginald Rogers, John Quimby, Michael O’Donnell, Jonathan Chamberlain, Patricia Reynolds, Richard and Barbara Sanders, Margaret Russell, and Robert and Judith Dupuis, appealed a superior court order that granted motions to dismiss filed by Respondents New Hampshire Department of Environmental Services and New Hampshire Fish and Game Department (collectively referred to as the State), and Town of Lyme (Town). Post Pond is in Lyme, held in trust by the State for public use. Petitioners own properties with frontage on Post Pond and the west side of the Clay Brook wetlands. The Town owns property on the east side of the Clay Brook wetlands as well as a contiguous parcel with frontage on Post Pond, which consists of a recreation area. In May 2009, Petitioners filed a petition in equity and writ of mandamus alleging that the Town's removal of beaver dams in the Pond that controlled the natural mean high water mark adversely affected their properties and disrupted the entire Clay Brook wetlands ecosystem. Upon review, the Supreme Court found that Petitioners' writ allegations were insufficient to state a claim for taking or nuisance against the Town, and that the trial court did not err in dismissing their claims. Further, the Court concluded that Petitioners failed to plead a claim entitling them to declaratory relief. View "Morrissey v. Town of Lyme" on Justia Law

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Petitioner Town of Newington appealed a superior court order that granted summary judgment to the State through the the Pease Development Authority (PDA) and the New Hampshire Department of Environmental Services (DES). Before land from the former Pease Air Force Base was deeded to the PDA, the United States Air Force engaged in a series of environmental impact analyses required by federal law. Following several iterations of environmental documents and deed restrictions, PDA accepted title to the Pease AFB land in three title transfers between 1999 and 2005. Shortly thereafter, the Town began the process of designating prime wetlands within its borders pursuant to state law. Six wetlands were located within the former Pease base. DES initially "approved" the Town's request, but later clarified that it "did not purport to 'approve' the legality of the Town's designation of prime wetlands located within PDA boundaries, nor would the agency have statutory authority to do so." Several months later, as part of a proposed construction project on PDA land to expand an existing office building, an alteration of terrain permit application was filed with DES. The Town rejected, asserting that it involved fill within 100 feet of wetlands that the Town had designated as "prime" and, therefore, required a wetlands permit. DES disagreed. After the Wetlands Council dismissed its appeal for lack of jurisdiction, the Town filed a petition for declaratory and injunctive relief in superior court. The trial court concluded that PDA was not required to comply with the Town’s prime wetlands designations and, therefore, granted PDA and DES’s motion for summary judgment. Upon careful consideration of the superior court records and the deeds of the wetlands in question, the Supreme Court concluded that the DES' reservation when first 'approving' the six wetlands within the PDA did not confer the Town with standing to challenge any subsequent development. As such, the Court affirmed the superior court's grant of summary judgment. View "Town of Newington v. New Hampshire" on Justia Law

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Defendants Robin Colburn and Ronald and Richard Tennant appealed a superior court order that denied their motion to dismiss this action by Plaintiffs Richard and Cheryl Fellows and Benjamin Bellerose. Plaintiffs were successors-in-interest to property once owned by Defendants' parents. The property was subject to a 1996 lead paint abatement order. Defendants' parents sold the property to Jesus and Eileen Guzman who were not aware of the abatement order when they sold the property to Plaintiffs. Plaintiffs then brought suit upon discovery of the abatement order. Defendants argued that the superior court lacked jurisdiction over them because despite being administrators of their parents' estate, none of the Defendants actually lived in New Hampshire. Upon review, the Supreme Court found that Plaintiffs failed to plead facts suffiient to justify the court's exercise of in personam jurisdiction over Defendants as either successor trustees or beneficiaries. Furthermore, Plaintiffs did not plead facts sufficient for the court to exercise quasi in rem jurisdiction. Accordingly, the Court reversed the superior court's judgment.