George Stergiou & a. v. City of Dover ( 2022 )

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THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
Strafford
No. 2021-0139
GEORGE STERGIOU & a.
v.
CITY OF DOVER
Argued: January 13, 2022
Opinion Issued: July 21, 2022
The Law Office of Scott E. Hogan, of Lyndeborough, for the petitioners,
filed no brief.
Joshua M. Wyatt, city attorney, of Dover, on the memorandum of law
and orally, for the respondent.
Donahue, Tucker & Ciandella, PLLC, of Portsmouth (Justin L. Pasay and
William K. Warren on the brief, and William K. Warren orally), for the
intervenors.
HICKS, J. The intervenors, Micheline Elias and The Fakhourys, LLC
(collectively, the developer), appeal an order of the Superior Court (Nadeau,
C.J.) denying their motion to dismiss a petition filed by the petitioners, George
Stergiou, Jen McCarthy, Brendan Sullivan, and Kirankumar Tamminidi (the
abutters), challenging a conditional site plan approval granted to the developer
by the planning board (the Board) for the respondent City of Dover (the City).
We affirm in part, reverse in part, and remand.
The following facts were recited in the trial court’s order. In January
2019, the developer applied to the Board for permission to construct a mixed
use development project in Dover. After a public hearing, the Board
conditionally approved the site plan on April 23, 2019 (the 2019 Approval).
The 2019 Approval and Chapter 153, Article II, Section 153-8 of the City’s site
review regulations (the Certification Provision) required the developer to provide
the Board with copies of the plan in various formats within 90 days. Due to
unforeseen circumstances, the developer was unable to meet this deadline.
On July 14, 2020, the developer asked the Board to “re-approve” the
2019 application so that the project could move forward. The Board held a
duly-noticed meeting on July 28, 2020, at which it conditionally re-approved
the Site Review Plan subject to specified “Conditions to be Met Prior to the
Signing of Plans” (the 2020 Approval). As characterized by the trial court, the
amended conditions “vary slightly from those set forth in the [2019 Approval].”
On August 27, 2020, the abutters filed a petition, pursuant to RSA
677:15, challenging the 2020 Approval as unlawful and unreasonable. See
RSA 677:15 (2016). The developer was allowed to intervene and, thereafter,
moved to dismiss the petition on the ground that it was untimely under RSA
677:15, I. While the Board took no position on the motion, the abutters
objected. Following a hearing, the trial court denied the motion.
The trial court concluded the conditions imposed in the 2019 Approval
“were conditions precedent and thus the decision was not a final decision
appealable under RSA 677:15.” The court also concluded that because it
appeared to be undisputed that those “conditions were not satisfied prior to the
[2020 Approval], the [2019 Approval] never became final.”
Likewise, the trial court found that the conditions imposed in the 2020
Approval “were conditions precedent and thus the decision was not a final
decision appealable under RSA 677:15.” The court further ruled:
As there has been no suggestion by the parties or the [developer]
that the Board has provided final approval of the plans following
the [developer’s] satisfaction of the [2020 Approval’s] conditions,
the court finds it appropriate to stay the present proceedings until
the Board has granted the [developer] final approval of the Project.
The developer moved to reconsider the decision on the motion to dismiss,
which the trial court denied. The abutters moved to reconsider or clarify the
decision to stay the proceedings, contending that the court could not stay a
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proceeding over which it lacked jurisdiction. The court granted that motion,
agreeing that it “lacks jurisdiction over the present appeal because the
conditions imposed by the [2020 Approval]—which was a mere formality to re-
approve, and thus supersede, the [2019 Approval]—are conditions precedent.”
Accordingly, the court dismissed the appeal, without prejudice, for lack of
jurisdiction. The developer now appeals that decision.
“Generally, in ruling upon a motion to dismiss, the trial court must
determine whether the allegations contained in the plaintiff’s pleadings
sufficiently establish a basis upon which relief may be granted.” Atwater v.
Town of Plainfield, 160 N.H. 503, 507 (2010) (quotation omitted). “In making
this determination, the court would normally accept all facts pleaded by the
plaintiff as true and view those facts in the light most favorable to the plaintiff.”
Id. When, however, “the motion to dismiss does not challenge the sufficiency of
the plaintiff’s legal claim but, instead, raises certain defenses, the trial court
must look beyond the plaintiff’s unsubstantiated allegations and determine,
based on the facts, whether the plaintiff has sufficiently demonstrated his right
to claim relief.” Id. (quotation omitted). “An assertion that a claim should be
dismissed because the trial court lacks jurisdiction to hear the claim . . . is one
such defense. We will uphold a trial court’s ruling in such a case unless its
decision is not supported by the evidence or is legally erroneous.” Id.The developer moved to dismiss the abutters’ petition as untimely. “New
Hampshire law requires strict compliance with statutory time requirements for
appeals of planning board decisions to the superior court.” Prop. Portfolio
Group v. Town of Derry, 154 N.H. 610, 613 (2006). “This is because statutory
compliance is a necessary prerequisite to establishing jurisdiction in the
superior court.” Id. The applicable statute, RSA 677:15, I, provides, in
pertinent part:
Any persons aggrieved by any decision of the planning board
concerning a plat or subdivision may present to the superior court
a petition, duly verified, setting forth that such decision is illegal or
unreasonable in whole or in part and specifying the grounds upon
which the same is claimed to be illegal or unreasonable. Such
petition shall be presented to the court within 30 days after the
date upon which the board voted to approve or disapprove the
application . . . .
RSA 677:15, I.
The developer argues that the trial court erred in: (1) ruling that the
Board approvals at issue were subject to conditions precedent, rather than
conditions subsequent; (2) ruling that the Board approvals at issue were not
decisions of the Board within the meaning of RSA 677:15, I; and (3) declining to
read RSA 676:4, I(i) and RSA 677:15, I, in conjunction to determine whether
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the conditions imposed were precedent or subsequent. The City counters that
“the trial court correctly denied the [developer’s] motion to dismiss” because
the developer “consented to the procedure by which the Planning Board
reapproved the application in July 2020.” The City asserts that “before the
Planning Board there was agreement that the 2019 approval [had] expired as
well as agreement on the re-approval process used.”
As a preliminary matter, we agree with the developer that the City’s
argument “present[s] factual issues the Trial Court never considered” and,
therefore, should be disregarded. The trial court made no findings or rulings
as to whether the developer “consented” to the 2020 “reapproval” procedure
and, by so doing, waived its ability to take the position it subsequently asserted
in its motion to dismiss. Accordingly, we decline to address the City’s
arguments on that issue. State v. Steimel, 155 N.H. 141, 147 (2007) (declining
to address issue when “the trial court did not rule on the issue” and “resolving
the issue may require additional factual findings”).
Turning to the developer’s arguments, we note that the first two — that
the trial court erred in ruling that the Board approvals at issue were subject to
conditions precedent, rather than conditions subsequent, and were not
decisions of the Board within the meaning of RSA 677:15, I — both challenge
the trial court’s rulings on the finality of the approvals for purposes of
triggering appellate rights. This follows from our case law holding that: (1)
“only [a] final approval . . . is a ‘decision of the planning board’ from which an
aggrieved party may appeal under” RSA 677:15, I, Sklar Realty v. Town of
Merrimack, 125 N.H. 321, 327 (1984), superseded, in part, by statute, Laws
1986, 57:1; and (2) “a conditional approval imposing only conditions
subsequent constitutes a final decision appealable under RSA 677:15, I.”
Saunders v. Town of Kingston, 160 N.H. 560, 564 (2010).
We first addressed conditions precedent and conditions subsequent, in
the context of planning board approvals, in Sklar Realty. As described in
Property Portfolio Group, Sklar Realty “noted that conditions precedent . . .
contemplate additional action on the part of the town and, thus, cannot
constitute final approval. Conditions subsequent, on the other hand, do not
delay approval.” Prop. Portfolio Group, 154 N.H. at 615. Accordingly, in
Property Portfolio Group, we referred to such conditions as “conditions
precedent to approval and conditions subsequent to approval.” Id. (emphases
added). Implicit in this framework is that it is the planning board’s intent, in
imposing such conditions, that controls whether they are “precedent” or
“subsequent,” as our decisions have termed them, or, said alternatively and
more accurately, whether the approval the board has granted is intended by it
to be final and appealable, or merely “an interim step in the process of the
board’s consideration.” Sklar Realty, 125 N.H. at 327.
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We acknowledge that planning boards may not always be explicit as to
whether their conditional approvals are intended to be final and appealable
when issued, or whether they require further action by the board before they
are considered final. Indeed, the City in this case asks us to “clarify the
decisional law about the 2020 re-approval and whether it was a ‘decision of the
planning board,’” because land use applicants, planning boards, and municipal
staff “need certainty about the commencement and expiration of the 30-day
appeal period.”
RSA 676:3, I, provides that “[i]f the application is approved with
conditions, the board shall include in the written decision a detailed
description of all conditions necessary to obtain final approval.” RSA 676:3, I
(2016). Implicit in this statutory mandate is the requirement that the board
explicitly identify whether its approval imposes “conditions necessary to obtain
final approval,” id., or, in other words, whether it imposes “conditions
precedent to approval,” Prop. Portfolio Group, 154 N.H. at 615 (emphasis
added). Doing so will, by definition, inform all interested parties whether the
approval is final and appealable when issued.
We now consider the finality and appealability of the approvals at issue
in this case. In its memorandum of law, the City states that “[t]he minutes
confirm that the Planning Board regarded the 2020 re-approval as the board’s
final decision on this site plan, meaning the Planning Board did not continue
the matter to a future hearing.” Thus, the City considers the 2020 Approval to
be a final approval.
Having reviewed the record, we conclude that the conditions imposed in
the 2019 Approval are substantially similar to those imposed in the 2020
Approval and that the minutes of the 2019 meeting indicate no different intent
regarding finality than the minutes of the 2020 meeting. Accordingly, we
conclude that the “Planning Board regarded the . . . [2019 Approval] as the
board’s final decision on this site plan.” This conclusion answers both the
developer’s first and second questions on appeal: the trial court erred in ruling
that the Board approvals at issue were subject to conditions “precedent to
approval” and that they were not decisions of the Board within the meaning of
RSA 677:15, I, or, in other words, final approvals.
We now consider the effect of the 2019 Approval, given that it was final
when issued. Under RSA 677:15, any persons aggrieved by the 2019 Approval,
including the abutters, had “30 days after the date upon which the board voted
to approve” the developer’s site plan in which to file a petition challenging that
approval. RSA 677:15, I. The developer represents that the abutters failed to
file such a petition within that time, and no party contends otherwise on
appeal. Rather, the parties’ disagreement relates to the present validity of the
2019 Approval.
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The developer contends that “the Board’s 2019 Approval is still valid”
under the City’s site review regulations. Specifically, the developer relies on the
following provision: “Planning Board approval shall be valid for five years from
the date of said approval. If a building permit has not been issued within such
time constraints, then said approval shall be considered null and void, except
[when extensions are granted] as provided below.” Dover, N.H. Site Review
Regulations ch. 153, art. II, § 153-9(A).
The City, on the other hand, argues that “[t]he trial court correctly
determined [both] that the 2019 approval expired” and that “the 2020 approval
is the operative approval.” (Bolding omitted.)
The City notes the mandatory language of the Certification Provision:
“The applicant shall submit to the Planning Board and Community
Development Department an electronic copy and five copies of the final site
development plan for the Planning Board Chair’s signature within 90 days of
receipt of final site plan approval by the Planning Board.” Dover, N.H. Site
Review Regulations ch. 153, art. II, § 153-8(A) (2020) (emphasis added). The
City contends “[t]here is no dispute the mandatory 90-day certification
requirement was not met with respect to the 2019 approval” and restates its
position that the “2019 approval expired unsigned.” (Quotation omitted.)
We agree with the City that, as a rule of construction, “the word ‘shall’ is
a command which requires mandatory enforcement.” In re Christopher K., 155
N.H. 219, 229 (2007). Nevertheless, “[t]his does not end the inquiry” where the
provision itself “does not provide a remedy” for the failure to comply with its
mandate. Id. We need not determine a remedy here. Cf. id. We note only that
we find no indication that expiration of the approval is the intended remedy,
particularly when the remainder of the Certification Provision allows the 90-day
deadline to be extended and such a construction would place the Certification
Provision in potential conflict with the provision making the approval valid for
five years. In sum, we conclude that the unappealed 2019 Approval remains
valid.
We next consider the significance of the 2020 Approval. The developer
concedes that the 2020 Approval was a “decision of the planning board” and
that the abutters’ appeal under RSA 677:15 was timely. (Quotation omitted.)
The developer argues, however, that “regardless of the fact that it was
fashioned as a ‘reapproval,’” such a “process is not contemplated by State or
local law.” Rather, the developer argues, the 2020 Approval was “effectively,”
“as a matter of law” an extension of the deadline to meet the Certification
Provision.
We decline to hold that the 2020 Approval was an extension of the
Certification Provision’s deadline. Under the Certification Provision,
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[t]he Director of Planning and Community Development may grant
one ninety-day extension if circumstances arise beyond the control
of the applicant. An extension denial by the Director of Planning
and Community Development can be appealed to the Planning
Board. Any additional extensions can only be granted by the
Planning Board.
Dover, N.H., Site Review Regulations ch. 153, Art. II, § 153-8(A). The
Certification Provision authorizes the planning board to grant an extension
after an initial approval or denial by the Director of Planning and Community
Development. Because there is no argument or evidence before us that any
such approval or denial occurred, we decline to treat the 2020 Approval as an
extension of the Certification Procedure’s deadline. Instead, having neither
found, nor been provided with, legal authority for the “reapproval” process the
Board utilized here, we conclude that the 2020 Approval is a nullity. Cf. Craig
v. Planning Bd. of Haverhill, 835 N.E.2d 270, 274 (Mass. App. Ct. 2005)
(holding that where the planning board’s “inaction, and failure to file the formal
notice of extension with the clerk” resulted, pursuant to statute, in the
constructive approval of a subdivision application, the “board’s subsequent
defective ‘approval’—along with any ‘agreed’ or ‘approved’ modifications—being
a ‘nullity,’ [were] of no effect” (footnote omitted)); Grasso v. Bor. of Spring Lake
Hghts., 866 A.2d 988, 991 (N.J. Super. Ct. App. Div. 2004) (noting that
“municipal action in the land use control field taken . . . without legal authority
is void ab initio and has no legal efficacy” (quotation omitted)). Accordingly, we
affirm, on alternative grounds, the trial court’s decision that the abutter’s RSA
677:15 appeal from the 2020 Approval did not vest it with jurisdiction. See In
re R. M., 172 N.H. 694, 699 (2019) (“When a trial court reaches the correct
result on mistaken grounds, we may affirm if valid alternative grounds support
the decision.”).
In sum, we conclude that the 2019 Approval was not timely appealed
and remains in force and that the 2020 Approval is void ab initio. Because
these conclusions resolve this appeal, we need not address the developer’s
third appellate argument. We affirm in part, reverse in part, and remand with
instructions to dismiss, with prejudice, the abutters’ RSA 677:15, I, appeal as
untimely.
Affirmed in part; reversed in part;
and remanded.
DONOVAN, J., concurred; MACDONALD, C.J., and HANTZ MARCONI, J.,
concurred specially; BASSETT, J., concurred specially.
MACDONALD, C.J., and HANTZ MARCONI, J., concurring specially. We
join in Justice Hicks’s thoughtful opinion. As the opinion notes, the court was
asked to clarify the law regarding what constitutes an appealable decision of a
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planning board. Land use applicants, interested parties, planning boards, and
municipal staff all require certainty about when an appeal should be filed. The
majority synthesizes applicable statutes, as well as our precedent, to clarify
when the thirty-day period commences.
We write separately to address the developer’s arguments regarding the
role of a statute not addressed by the majority, RSA 676:4, I(i) (2016), in
determining whether the planning board’s approvals were final, appealable
decisions. Because the developer prevails on this issue on other grounds, the
majority does not reach these arguments. The developer has properly raised
the issue of the applicability of RSA 676:4, I(i), and we believe that discussion
of that issue may be of some assistance in further clarifying the law in this
area.
As the majority notes, Sklar Realty v. Town of Merrimack, 125 N.H. 321,
327 (1984), first set forth the concepts of “conditions precedent” and
“conditions subsequent” in the context of planning board appeals. The court
noted that both kinds of conditions furthered important, but different,
objectives. A condition precedent was intended to avoid the situation where
“any impediment to approval would require formal disapproval and the
wasteful requirement to start all over again.” Sklar Realty, 125 N.H. at 327.
The court said that there could be no final approval for purposes of appeal
until “any conditions precedent have been found to be fulfilled.” Id. (“For a
valid, final approval under the statute, there are no unfulfilled conditions
precedent.”). Thus, a “condition precedent” was a condition to be fulfilled prior
to final approval and a “condition subsequent” was a condition to be fulfilled
following final approval.
Shortly after our decision in Sklar Realty, the legislature enacted RSA
676:4, I(i). That subparagraph provides:
A planning board may grant conditional approval of a plat or
application, which approval shall become final without further
public hearing, upon certification to the board by its designee or
based upon evidence submitted by the applicant of satisfactory
compliance with the conditions imposed. Such conditions may
include a statement notifying the applicant that an approval is
conditioned upon the receipt of state or federal permits relating to
a project, however, a planning board may not refuse to process an
application solely for lack of said permits. Final approval of a plat
or application may occur in the foregoing manner only when the
conditions are:
(1) Minor plan changes whether or not imposed by the board
as a result of a public hearing, compliance with which is
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administrative and which does not involve discretionary
judgment; or
(2) Conditions which are in themselves administrative and
which involve no discretionary judgment on the part of the
board; or
(3) Conditions with regard to the applicant’s possession of
permits and approvals granted by other boards or agencies
or approvals granted by other boards or agencies, including
state and federal permits.
All conditions not specified within this subparagraph as minor,
administrative, or relating to issuance of other approvals shall
require a hearing, and notice as provided in subparagraph I(d),
except that additional notice shall not be required of an adjourned
session of a hearing with proper notice if the date, time, and place
of the adjourned session were made known at the prior hearing.
By its text and structure, RSA 676:4, I(i) ratifies the use of conditional
approvals, but seeks to minimize potential delays before a board’s decision
becomes final.
In this case, the developer contends that this subparagraph “clearly
distinguishes between final approvals subject only to conditions subsequent,
i.e., final approvals that are subject only to those types of conditions explicitly
contemplated by RSA 676:4, I(i)(1)-(3), and approvals subject to conditions
precedent, i.e., approvals subject to conditions that are not minor or
administrative and thus require a noticed hearing with the planning board.”
The developer then argues, inter alia, that the conditions in the planning
board’s 2019 approval fell within the scope of RSA 676:4, I(i)(1) or (2), and thus
were conditions subsequent. Therefore, the developer concludes, the 2019
approval was a final, appealable decision of the planning board.
We disagree with this analysis. In our view, RSA 676:4, I(i) has no
bearing upon whether a condition imposed by the planning board is a
condition precedent or a condition subsequent. The planning board
determines at the time it grants an approval subject to a condition whether the
condition it is imposing is a condition precedent or a condition subsequent. If
it is a condition subsequent, then the approval is itself the final, appealable
order. On the other hand, if it is a condition precedent, then the approval
subject to that condition is not the final, appealable order.
The role of RSA 676:4, I(i) is to set forth how a “conditional approval . . .
shall become final.” Thus, by its plain language, this subparagraph applies
solely to approvals subject to conditions precedent, because it is only approvals
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subject to conditions precedent that later “become final.” The subparagraph
provides that if the condition imposed is specified in the subparagraph as
minor, administrative, or relating to issuance of other approvals, then approval
“shall become final” without a further public hearing upon certification to the
board by its designee or based upon evidence submitted by the applicant of
satisfactory compliance with the conditions imposed. All other conditions
require a further public hearing before the approval can become final. But in
all cases governed by the subparagraph, some further action must be taken in
order for the conditional approval to become final.
Thus, it follows that RSA 676:4, I(i) cannot apply to an approval subject
only to a condition subsequent. An approval subject to a condition subsequent
does not “become final” — it is final. That is, an approval subject to a
condition subsequent is itself final and appealable even though the condition
has not been satisfied. Accordingly, RSA 676:4, I(i) has no role to play — the
approval is already final, so there is no need to look to RSA 676:4, I(i) to
determine how the approval “shall become final.”
On this point, we believe it important to emphasize and elaborate on a
point made by the majority. A board is required to issue a final written
decision “which either approves or disapproves” an application. RSA 676:3, I
(2016). The legislature has mandated that if a planning board approves an
application with conditions, “the board shall include in the written decision a
detailed description of all conditions necessary to obtain final approval.” Id.
(emphases added). That means that if the planning board intends that a
condition it imposes be a condition that must be complied with before the
approval can become final (that is, a condition precedent), then the board must
say so. In our view, under the plain meaning of RSA 676:3, I, an approval with
conditions but without such a designation is a final approval and subject to
immediate appeal under RSA 677:15, I (appeals must be filed “30 days after the
date upon which the board voted to approve or disapprove the
application”). This construction is not only consistent with RSA 676:3, I’s plain
terms, but also advances the orderly and timely disposition of planning board
matters.
Finally, the developer makes one further argument as to why it contends
that every approval that imposes a condition that falls within the scope of RSA
676:4, I(i)(1)-(3) must be a final, appealable order. If that is not the case, the
developer asserts, then
it would be nearly impossible for most abutters and other interested
parties, except for the applicant or the Planning Board itself, to
determine when a conditional approval has become final for purposes of
appellate review. Abutters would be forced to monitor the inner workings
of their local government to ascertain when a Planning Board decision
has become final within the meaning of RSA 677:15, or the Planning
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Board itself would have to adopt some mechanism to inform abutters
when a decision has become final, likely by requiring an additional, duly
noticed compliance hearing with the Planning Board in every case.
Again, we disagree. First, as a practical matter, it is likely that in the great
majority of cases in which a planning board grants approval with only minor or
administrative conditions, the planning board will not designate those
conditions as being necessary for final approval. In other words, the order will
make clear that any conditions imposed are not conditions precedent. Thus, in
those cases, the order itself will indeed be the final, appealable order.
Second, in those, presumably, few cases in which a planning board
imposes a condition precedent that, pursuant to RSA 676:4, I(i), can become
final without a further public hearing, RSA 676:4, I(i) provides that approval
can become final only after “certification to the board” or submission by the
applicant of “evidence . . . of satisfactory compliance with the conditions
imposed.” RSA 676:4, I(i). Thus, while the statute relieves the board of the
obligation of holding a further public hearing in those cases, it does not
address the manner in which notice of final approval is provided.
We look to the statutory scheme for guidance. RSA 676:3, I, provides that
the board “shall issue a final written decision which either approves or
disapproves an application . . . .” In addition, RSA 677:15, I, states that any
person aggrieved by any decision of the planning board may petition the
superior court “within 30 days after the date upon which the board voted to
approve or disapprove the application.” (Emphasis added.)
Construing these statutes harmoniously, see Krainewood Shores Ass’n v.
Town of Moultonborough, 174 N.H. 103, 106 (2021), we conclude that in any
case in which a planning board imposes a condition that must be satisfied in
order to obtain final approval (that is, a condition precedent), once the
condition is satisfied, the planning board must vote to approve the application
and must issue a written decision. If the condition precedent is one that can
be satisfied under RSA 676:4, I(i) without a further public hearing, then the
vote and final written decision will follow after the certification or submission of
evidence of satisfactory compliance with the condition. Otherwise, the vote and
final written decision will follow after the further public hearing. The appeal
period under RSA 677:15, I, will run from the date of the vote to approve.
Accordingly, the developer’s concern that abutters and other interested
parties will not know when an approval has become final is unfounded. In
every case in which the planning board issues an order of approval with a
condition precedent, the statutory scheme makes clear that it is the board’s
obligation, upon determining that the condition has been satisfied, to vote and
issue a final, appealable, written decision. Thus, the board will provide the
same notice of its final, appealable decision in every case.
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BASSETT, J., concurring specially. Like Chief Justice MacDonald and
Justice Hantz Marconi, I too join in Justice Hicks’s opinion. I write separately,
however, to explain why I do not join Chief Justice MacDonald and Justice
Hantz Marconi’s special concurrence addressing the applicability and
interpretation of RSA 676:4, I(i) (2016). Although the developer, on appeal,
raises the issue addressed in the concurrence, given that the developer prevails
on other grounds, it is not necessary to construe RSA 676:4, I(i) in order to
decide this case.
Nor has the issue addressed by the Chief Justice and Justice Hantz
Marconi been fully briefed by the parties on appeal. The petitioners, who
challenged in superior court the site plan approval granted by the planning
board, did not file a brief in this court. While the City of Dover did file a
memorandum of law, the City stated that “[i]n the end, the City is not
advocating for any particular result or outcome.” Addressing issues that have
not been fully briefed increases the possibility that we will err. See Hodges v.
Johnson, 170 N.H. 470, 490 (2017) (Bassett, J., dissenting).
The interpretation offered by the Chief Justice and Justice Hantz
Marconi does not establish binding precedent, but rather presents a possible
interpretation of the statutes that may be adopted in a future case. I agree
with the Chief Justice and Justice Hantz Marconi that this discussion of RSA
676:4, I(i) shines light on the law in this area.
The special concurrence signals to all stakeholders that review of current
procedures may be required. In addition, because the concurrence involves
interpretation of state statutes, the legislature, now with the benefit of Chief
Justice MacDonald and Justice Hantz Marconi’s analysis, may wish to revisit
or clarify the statutory scheme.
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