Preview:

NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Reporter, Supreme Court of New Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any editorial errors in order that corrections may be made before the opinion goes to press. Errors may be reported by E-mail at the following address: reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 a.m. on the morning of their release. The direct address of the court's home page is: http://www.courts.state.nh.us/supreme. THE SUPREME COURT OF NEW HAMPSHIRE ___________________________

Merrimack No. 2010-798

CURTIS AVERY & a. v. NEW HAMPSHIRE DEPARTMENT OF EDUCATION & a. Argued: June 16, 2011 Opinion Issued: October 27, 2011 Hall, Morse, Anderson, Miller & Spinella, P.C., of Concord (Frank P. Spinella, Jr. on the brief and orally), for the petitioners.

Michael A. Delaney, attorney general (Anne M. Edwards, associate attorney general, and Kristen A. Fiore, attorney, on the memorandum of law), for respondent New Hampshire Department of Education.

Upton & Hatfield, LLP, of Concord (John F. Teague and James A. O'Shaughnessy on the brief, and Mr. O'Shaughnessy orally), for respondent Concord School District.

HICKS, J. The petitioners, Curtis and Deborah Avery, appeal an order of the Superior Court (McNamara, J.) dismissing their petition for declaratory

judgment relating to a lot size waiver granted to respondent Concord School District (District) by respondent New Hampshire Department of Education (DOE). We affirm. The following facts are taken from the record. In December 2009, the School Board for the District voted to demolish and rebuild Kimball School. The lot size for the proposed new school building did not meet the minimum lot size requirements set forth in New Hampshire Administrative Rules, Ed 321.03(f)(1). As a result, the District filed an application for a waiver of the lot size requirements with DOE pursuant to Rules 321.30 and 321.03(g) and (h) (the waiver rules). DOE granted the waiver request and the District received school building aid. See RSA 198:15-a (Supp. 2010); RSA 198:15-b (2008) (amended 2010) (school building aid statutes). The petitioners own rental property adjacent to the Kimball School lot. In August 2010, they filed a petition seeking a declaratory judgment that the waiver of the minimum lot size requirement is "invalid and void." The petitioners alleged that the District's waiver application "was factually insufficient as a matter of law and did not fully comply with" the waiver requirements in Rules 321.03(h) and 321.30 because it failed to include "`pertinent data relative to land values and the availability of other property, contiguous or not, that can be acquired to enlarge a school site' including but not limited to pertinent data relative to" the petitioners' property. (Quoting N.H. Admin. Rules, Ed 321.03(h)(3); citation omitted.) Thus, the petitioners contended that the District failed to satisfy the regulatory requirements for the waiver and that DOE acted illegally in granting the waiver. They claimed that the waiver threatened to diminish the value of their property. The respondents moved to dismiss, asserting that the petitioners lacked standing to bring the action. The trial court agreed and denied the petitioners' motion to reconsider. This appeal followed. Generally, in ruling upon a motion to dismiss, the trial court is required to determine whether the allegations contained in the petitioners' pleadings are sufficient to state a basis upon which relief may be granted. Ossipee Auto Parts v. Ossipee Planning Board, 134 N.H. 401, 403 (1991). To make this determination, the court would normally accept all facts pled by the petitioners as true, construing them most favorably to the petitioners. Id. "When the motion to dismiss does not challenge the sufficiency of the [petitioners'] legal claim but, instead, raises certain defenses, the trial court must look beyond the [petitioners'] unsubstantiated allegations and determine, based on the facts, whether the [petitioners] ha[ve] sufficiently demonstrated [their] right to claim relief." Baer v. N.H. Dep't of Educ., 160 N.H. 727, 729 (2010) (quotation and brackets omitted). A jurisdictional challenge based upon lack of standing is

2

such a defense. Id. Since the relevant facts are not in dispute, we review the trial court's determination on standing de novo. See id. In this case, the trial court determined that the petitioners lacked standing to challenge the waiver because the purported injury, protection of property values within a municipality, is unrelated to the purpose of the waiver rules and the school building aid statutes under which the District sought the waiver. Relying upon Baer, the court found "that the interest of the Petitioners is no different from that of any other taxpayers in the City of Concord, and . . . they therefore have no standing to challenge the waivers." The petitioners argue that the trial court erred in requiring them to demonstrate that they "suffered a legal injury against which the rule being challenged was designed to protect." (Emphasis omitted.) They contend that, in an action under RSA 491:22 (2010) and RSA 541-A:24 (2007), "[i]t is enough that [the District's failure to include their property in its waiver application] has visited injury on" them, irrespective of the purpose of the waiver rules and the school building aid statutes. The petitioners further argue that they satisfy the test for standing under RSA 541-A:24 because they "allege impairment or prejudice to their personal rights . . . as abutters whose property could have been acquired to enlarge the lot for which the waiver was requested

Download 2010-798 Curtis Avery & a. v. New Hampshire Department of Education & a.

New Hampshire Law