THE STATE OF NEW HAMPSHIRE

JUDICIAL BRANCH
SUPERIOR COURT
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NOTICE OF DECISION

File Copy

Case Name: Select Board, Town of North Hampton v Ann Larkey

Case Number: 218-2017-CV-00321

Enclosed please find a copy of the court's orde r of September 26, 2017 relative to :

Plaintiffs Motion for Summary Judgment

September 27, 2017 Maureen F. O'Neil

Clerk of Court

(398)
C: Stephen M. Bennett, ESQ; Ann Larkey; Richard Casey O'Kane, ESQ

NHJB-2503-S (07/01/2011)
 ROCKINGHAM COUNTY SUPERIOR COURT

SELECT BOARD, TOWN OF NORTH HAMPTON, NEW HAMPSHIRE

V.

WILLIAM J. GOSSELIN, ET AL.

Docket No. 218-2017-CV-00321

ORDER ON PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

Plaintiff, the Select Board (the "Board") of the Town of North Hampton , New

Hampshire (the "Town") , commenced this declaratory judgment action against

Defendants William J. Gosselin, Ann Larkey, and Meredith Loyd Marshall. Plaintiff

seeks to have two warrant articles (which were proposed by Defendants and ultimately

approved by the Town's voters) held invalid. Plaintiff further seeks a permanent

injunction barring enforcement of those articles. Pending before the Court is Plaintiffs

motion for summary judgment. Defendants have not filed an objection or otherwise

respond to Plaintiff's motion. For the reasons that follow, Plaintiff's motion for summary

judgment is GRANTED.

Facts

The following facts are undisputed by the parties, unless otherwise noted.

Defendants are residents of, and registered voters in, the Town. Pet. Deel. J. ,m 2-4.
Prior to the Town's March 2017 elections, Defendants submitted two warrant articles to

be placed on the ballot. Maggiore Aff. 1t,14-5. These two warrant articles-Warrant

Article 33 and Warrant Article 35- placed certain restrictions upon the Town's

conservation commission . Id. Exs. B- C. Warrant Article 33 stated as follows:

 [S)hall North Hampton vote that any development or changes to any
Conservation Land owned or controlled by North Hampton or otherwise
designated by North Hampton as Conservation Land be subject to all of
the following provisions:

1. said development or changes shall be reviewed by a Review

Board for ultimate approva l;
2. said Review Board shall consist of 1 member from each of the
Planning Board , Zoning Board of Adjustment, and Conservation
Commission as well as 1 member from the Select Board and
Building Inspector;
3. notices of all Review Board meetings shall be posted at the Town
Offices, the Town Clerk's office, the Town Hall, the Town Library
and the Town website, and sent by US Registered Mail to all
abutters to the Conservation Land, at least 5 days before said
meeting ;
4. said notices shall described the development or changes and the
Conservation Land by its location, commonly known address or
name as well as its tax max designation;
5. all meetings shall be open to the public allowing public
participation and be broadcast live on Channel 22, recorded and
preserved as required by statute;
6. all meeting minutes shall be taken by a duly appointed secretary
and available for public review within 5 business days of the
meeting ;
7. there shall be no closed door meetings, private understandings or
private deliberations[.]

Id. Ex. B. Warrant Article 35 stated: "[S]hall North Hampton vote that the members of

the Conservation Commission be elected by the public rather than appointed by the

Select Board." Id. Ex. C. Prior to the vote, Plaintiff expressed concerns over the

articles' legality, but placed both on the ballot for consideration pursuant to statute. Pet.

Deel. J . 1- 2; see RSA 39:3 ("[T]he selectmen shall insert in their warrant for such

meeting the petitioned article with only such minor textual changes as may be

required ."). Voters approved both articles at the March 14, 2017 election. ld. 116. "Due

to concerns regarding the legality of the actions required by Warrant Articles 33 and 35,

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[Plaintiff] has not enforced the provisions of those warrant articles" and filed suit in this

Court to determine the articles' legality. Maggione Aff. '1] 7 .

Analysis

Summary judgment is designed "to pierce the pleadings and assess the proof in

order to determine if there is a genuine issue of material fact requiring a formal trial of

the action ." Cmty. Oil Co. v. Welch , 105 N.H. 320, 321 (1964) . "A moving party is

entitled to summary judgment 'if the pleadings, depositions, answers to interrogatories ,

and admissions on file, together with the affidavits filed , show that there is no genuine

issue as to any material fact and that the moving party is entitled to judgment as a

matter of law.'" Beckles v . Madden, 160 N.H. 118, 122 (2010) (quoting RSA 491 :8-a,

Ill). In ruling upon the motion, the Court considers "the affidavits and other evidence,

and all inferences properly drawn from them , in the light most favorable to the non-

moving party." Farrelly v. City of Concord, 168 N .H . 430 , 448 (2015) (quotation

omitted) . Summary judgment shall be granted if the "review of that evidence discloses

no genuine issue of material fact, and if the moving party is entitled to judgment as a

matter of law .... " lg_. Where, as here, resolution of the issues involves statutory

provisions, the interpretation of said provisions is a question of law for the Court. Porter

v. Town of Sandwich, 153 N.H. 175, 178 (2006).

Plaintiff argues that both warrant articles violate the provisions of RSA chapter

36-A because the articles usurp the statutory powers and duties expressly granted to

Plaintiff and the Conservation Commission (the "Commission"). While Defendants have

not objected or otherwise filed a responsive pleading to Plaintiffs motion, "[f]ailure to

object shall not, in and of itself, be grounds for granting the motion." See Super. Ct. R.

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13(b). Rather, given that there exists "uncertainty concerning the status or legal rights

existing betwee n" the parties, Salem Coalition for Caution, Inc. v. Town of Salem, 121

N.H. 694, 696 ( 1981 ), the Court must determine whether the warrant articles at issue

violate RSA chapter 36-A.

In interpreting the statutory provisions at issue, the Court considers the statutory

scheme as a whole, looking first to the statutory language, "and, if possible, constru[ing)

that language according to its plain and ordinary meaning." Zorn v. Demetri, 158 N.H.

437, 438 (2009); ~ Petition of Malisos, 166 N.H. 726, 729 (2014). The Court

interprets the "legislative intent from the statute as written and will not consider what the

legislature might have said or add language that the legislature did not see fit to

include." Zorn, 158 N.H. at 438. Words and phrases are not construed in isolation, and

the Court interprets "all parts of a statute together to effectuate its overall purpose and

avoid an absurd or unjust result. " !Q. at 438-39 (citing In re Alexis 0., 157 N.H. 781,

785 (2008)) . The objective is to "discern the legislature's intent and to interpret statutory

language in light of the policy or purpose sought to be advanced by the statutory

scheme." Id. at 439.

Conservation commissions are creatures of statute. See RSA 36-A:1 (explaining

adoption and rescission of provisions). A Town that adopts the "provisions of [RSA

chapter 36-A] may establish a conservation commission . . . for the proper utilization

and protection of the natural resources and for the protection of watershed resources of

said city or town ." RSA 36-A:2 (amended 2017). "The commission shall consist of not

less than 3 nor more than 7 members," and "in towns the members of the commission

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shall be appointed by the selectmen .'' RSA 36-A:3 (emphasis added). Pursuant to the

statutory grant, such commissions:

may receive gifts of money, personal property, real property, and water
rights , either within or outside the boundaries of the municipality, by gift,
grant, bequest, or devise, subject to the approval of the local governing
body , such gifts to be managed and controlled by the commission for the
purposes of this section. Said commission may acquire in the name of the
city or town , subiect to the approval of the local governing body. by
purchase , the fee in such land or water rights within the boundaries of the
municipality, or any lesser interest, development right, easement ,
covenant, or other contractual right including conveyances with conditions,
limitations, or reversions , as may be necessary to acquire, maintain,
improve, protect, or limit the future use of or otherwise conserve and
properly utilize open spaces and other land and water areas within their
city or town, and shall manage and control the same, but the city or town
or commission shall not have the right to condemn property for these
purposes.

RSA 36-A:4, I (emphasis added) ; see Claridge v. New Hampshire Wetlands Bd., 125

N.H. 745, 751 - 52 (1984) (explaining that under RSA chapter 36-A "commissions were

charged with index ing all open marshlands , swamps and other wetlands , and were

empowered to recommend to the selectmen . . . a program for better promotion,

development or utilization of such areas." (emphasis added)).

Here, the Court finds that the statutory scheme requires that: (1) the Board

selects and appoints members of the Commission ; and (2) the Board maintains ultimate

authority over the Commission. The statutory mandate is clear in this instance . The

plain and ordinary meaning of these provisions establishes that the legislature intended

Plaintiff, not the voters or some third-party board, to maintain exclusive control over the

Commission. Zorn, 158 N.H. at 438. Indeed, such a conclusion is further supported by

the legislative enactments governing other local bodies . See RSA 673:2, II (explaining

that planning board members may either be elected or appointed); RSA 673 :3, I (noting

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 that zoning board members "shall either be elected in the manner prescribed by RSA

669, or appointed in a manner prescribed by the local legislative body."). In stark

contrast, here, the statutory language of RSA chapter 36 -A does not include multiple

options for the selection of conservation commission members. In fact, the statute

plainly states that "members of the commission shall be appointed by the selectmen."

RSA 36-A:3 (emphasis added). "Pursuant to general rules of statutory construction , the

word 'shall' is a command, which requires mandatory enforcement. " City of Manchester

v. Doucet, 133 N.H. 680, 683 (1990). Thus, the statute requires that members of the

Commission be appointed by the Board .

In addition, the statute makes clear that acts of a conservation commission are

subject only to review by that town's select board or other similar local governing body.

RSA 36-A:4 , I. Imposing additional requirements than those mandated by statute would

certainly subvert the legislature's intent. Cf. Levasseur v. Bd. of Selectman of Hudson,

116 N.H. 340, 342 (1976) ("fT]he legislative body of the town may not impose

requirements with respect to matters within the statutory jurisdiction of the planning

board."). Indeed, "[i]t is a long established principle under law that towns are but

subdivisions of the State and have only the powers the State grants to them ." Piper v.

Meredith, 110 N.H. 291, 295 (1970) (quotation omitted). To rule otherwise would plainly

subvert the intent of the legislature, which would be absurd given the statutes' clear

directives. Zorn, 158 N.H. at 438. "Such a state of affairs would exist in derogation of a

statutory framework that requires" the select board to both appoint and supervise the

Comm ission- not the voters or a third-party review board. Ehrenberg v. City of

Concord , 120 N.H. 656, 661 (1980) ; cf. City of Claremont v. Craigue, 135 N.H . 528, 532

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(1992) (holding that voter requested change to a city charter to require voter approva l of

the city budget invalid because the "changes would in effect give the city's voters a veto

over any proposed fiscal action by the council," which would "render a city unable to

fulfill its duties under RSA chapters 44 and 47."). The warrant articles at issue plainly

exceed the statutory grant intended by the legislature. Accordingly, the Court finds that

Warrant Articles 33 and 35 run afoul of RSA chapter 36-A , and are thus invalid.

The above determination does not end the Court's inquiry, as Plaintiff is further

requesting that implementation of those warrant articles be permanently enjoined. The

Court finds that a permanent injunction is appropriate in this instance. Whether to grant

an injunction in any given case is within the sound discretion of the Court. Town of

Atkinson v. Malborn Realty Tr. , 164 N.H. 62, 66 (2012) ("It is within the trial court's

sound discretion to grant an injunction after consideration of the facts and established

principles of equity."). Since injunctions are "considered an extraordinary remedy," ATV

Watch v. N.H. Dep't of Res. and Econ. Dev., 155 N.H. 434, 437 (2007) (quotation

omitted), the party seeking the injunction must establish: "(1) a present threat of

irreparable harm existed; (2) no adequate, alternative remedy at law existed; (3) there

was a likelihood of success on the merits by a balance of the probabilities; and (4) the

public interest would not be adversely affected if the [C]ourt granted the ... injunction,"

Thompson v. N.H . Bd. of Med., 143 N.H. 107, 108 (1998); see 4 G. MacDonald, New

Hampshire Practice: Civil Practice and Procedure §19.05 (2014) (discussing the

requirements generally).

Plaintiff has certainly established that an injunction is necessary to halt

enforcement of the warrant articles at issue. To start, Plaintiff has prevailed on the

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 merits since the Court has found that the warrant articles violate RSA chapter 36-A.

There is no legal remedy in this instance given the nature of the action. Indeed, Plaintiff

is not seeking damages at law because no such damages exist. The issue, here, is

solely whether the warrant articles run afoul of the statutory authority granted in RSA

chapter 36-A. Moreover, irreparable harm exists given that voters are permitted to

enforce the warrant articles in successive elections. The facts underlying the instance

action evince such a threat of harm. For example, Plaintiff originally cast doubt on the

legality of Warrant Articles 33 and 35 prior to the election, but was required to place the

articles on the ballot pursuant to statute. See RSA 39:3 ("[T]he selectmen shall insert in

their warrant for such meeting the petitioned article with only such minor textual

changes as may be required ." (emphasis added)). Thus, absent an injunction, voters

may continue to chip away at the statutory authority granted to Plaintiff and the

Commission by placing additional warrant articles (which seek to implement Warrant

Articles 33 and 35) in successive elections. Lastly, permitting enforcement of Warrant

Articles 33 and 35 to occur would require Plaintiff to exceed the statutory authority

granted to it by the legislature. Piper, 110 N.H. at 295. It is certainly in the public's best

interest to ensure that local governing bod ies are not in violation of state law.

Accordingly, Defendants are permanently enjoined from seeking to enforce the

provisions of Warrant Articles 33 and 35.1

1
The Court notes that Plaintiffs brought suit against the three named Defendants in their capacities as
proponents of the warrant articles. Given that Defendants are representatives of the residents and
registered voters in the Town who endorsed and voted for these articles, it naturally follows that
Defendants have a "legally sufficient_relationship with" these persons such that they are in privity with,
and representatives for, these non-party actors. In re Marriage of Marshall, 663 N.E.2d 1113, 1119 (Ill.
App. Ct. 1996); see 42 Am. Jur. 2d Injunctions§ 279 (2017) ("Under the common law, an injunction binds
not only the parties but also those in privily with them. represented by them, or subject to their contro l."
(footnote omitted)). In light of this relatio nship, the registered voters who are not parties to this action are

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 The Court is cognizant of Defendants ' frustration. Indeed, it is evident from the

warrant articles and Defendants' answer that they desire to exhibit more control over

local affairs. Such a desire is certainly not unreasonable. However, the proper avenue

for change cannot be by way of local procedures which directly conflict with a state

statutory mandate. The power to change RSA chapter 36-A, which would give

Defendants the control they seek, exists solely with the legislature. See, ~ . In re

Goldman, 151 N.H. 770, 773- 74 (2005) (recognizing this power generally). Thus, to the

extent that Defendants desire such a change in local governance, they must first seek

to change the relevant statutory scheme (which grants local bodies their powers).

Defendants cannot, as they have attempted here, seek to subvert controlling state

statutes by approving local ordinances or articles which directly conflict with those

statutes .

Conclusion

For the reasons discussed above, Plaintiff's motion for summary judgment is

GRANTED. Defendants are PERMANENTLY ENJOINED from seeking to enforce the

provisions of Warrant Articles 33 and 35.

So Ordered.

Marguerite L. Wageling
Presiding Justice

still "within the class of persons whose conduct is intended to be restrained," and are thus likewise
enjoined from seeking to enforce Warrant Articles 33 and 35. 42 Am. Jur. 2d, supra §281 .