Maplevale Builders, LLC v. Town of Danville , 165 N.H. 99 ( 2013 )

Lynn, J.,

concurring specially. I join the opinion of the court except insofar as it elucidates the factors that may be considered in determining whether to overrule precedent. See ante at 105. Although my view as to the considerations that properly may warrant overruling precedent is broader than that espoused by the majority, see State v. Quintero, 162 N.H. 526, 543-47 (2011) (Lynn, J., concurring specially), I agree that in this case there is no cause for overruling our decision in Appeal of Estate of Van Lunen, 145 N.H. 82 (2000), particularly given the legislature’s response to what, in my view, was the very well-reasoned special concurrence in Formula Development Corp. v. Town of Chester, 156 N.H. 177 (2007).^* See Formula Dev. Corp., 156 N.H. at 182 (Dalianis, J., joined by Duggan, J., concurring specially).

* Interestingly, the two justices who joined in the special concurrence in Formula Development Corp. also formed part of the court’s majority in Quintero. Yet, contrary to the narrow “four factor only” test for overruling precedent relied on in Quintero, in Formula Development Corp. these justices asserted that Van Lunen should be overruled in part merely because it was decided incorrectly, and without ever mentioning the four factor test. See Formula Development Corp., 156 N.H. at 186 (Dalianis, J., joined by Duggan, J., concurring specially) (advocating that Van Lunen be overruled because “ft]he stability of the law does not require the continuance of recognized error”; and noting that “[wjhere a decision has proven unworkable or badly reasoned ... we will not hesitate to revisit it” (emphasis added; quotations omitted)). The special concurrence in Formula Development Corp. is thus a further example of my point that the court has not consistently applied the four factor test even after we first utilized it in Jacobs v. Director, New Hampshire Division of Motor Vehicles, 149 N.H. 502, 505 (2003). See Quintero, 162 N.H. at 544-46 (Lynn, J., concurring specially).