2004-717, PENNICHUCK CORPORATION v. CITY OF NASHUA

summary judgment to the defendant, City of Nashua (City), and ruling that the Inc. (Pennichuck), appeal an order by the Superior Court (Lynn, C.J.) granting Works, Inc., Pennichuck East Utility, Inc. and Pittsfield Aqueduct Company, DUGGAN, J. The plaintiffs, Pennichuck Corporation, Pennichuck Water

for the State, as amicus curiae. Kelly A. Ayotte, att orney general (Edith L. Pacillo, attorney, on the brief),

the brief), for the defendant. and orally), and Upton & Hatfield, LLP, of North Conway (Robert Upton, II on Office of Corporation Counsel, of Nashua (David R. Connell on the brief

plaintiffs. Donovan and Sarah B. Knowlton on the brief, and Mr. Donovan orally), for the McLane, Graf, Raulerson & Middleton, P.A., of Manchester (Thomas J.

No. 2004 - 717 Hillsborough - sou thern judicial district

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. O pinions are available on the Internet by 9:00 Errors may be reported by E - mail at the following address: errors in order that corrections may be made before the opinion goes to press. Hampshire, One Noble Drive, Concord, New Hampshire 03301, of any editorial Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

customers in New Hampshire. Most of these customers are in Nashua and operate public utilities providing water supply services to approxim ately 35,000 The trial court found the following facts. Pennichuck and its subsidiaries

commenced for a period of two years. Id. in the negative, no further proceedings under RSA chapter 38 can be may proceed to acquire the assets at the price set by the PUC. Id. If the vote is (Supp. p. 2 2005). RSA 38:13. If the vote is in the affirmative, the municipality assets for that price by a vote to issue revenue bonds pursuant to RSA 33 - B:2 acquisition price, the municipality must decide whether or not t o purchase the a “second - look provision,” which provides that after the PUC sets the the assets in question. RSA 38:9, I, III (2000), :10 (2000). The statute contains amount of “just compensation” or damag es that the municipality must pay for outside of the municipality. RSA 38:9, I (2000). The PUC also determines the municipality to purchase some or all of the utility’s property located inside or petition the PUC to determine whether it is in the public interest for the RSA 38:8 (2000), :13 (2000). If no agreement is reached, either party may municipality to issue the necessary revenue bonds for the acquisition price. assets to be sold and the sale price, subject to ratification by a vote of the The parties may then negotiate and reach a tentative agreement on the

The utility is given sixty days to respond. RSA 38:7 ( p. 2 2000). require, pursuant to RSA 38:11 as determined by the [PUC].” RSA 38:6 (2000). portion, if any, lying witho ut the municipality which the public interest may identified plant and property located within the municipality, as well as “that municipality must notify the utility and inquire if it is willing to sell the is in the public interest. Id. Within thirty days of the confirming vote, the favorable confirming vote creates a rebuttable presumption that the acquisition regular election or special meeting called for this purpose. RSA 38:3 (2000). A then be confirmed by a majority vote of the municipality’s qualified voters at a by two - thirds of the members of the municipal governing body. This vote mu st initiate the process of acquiring a utility, there must first be an affirmative vote operate them as publicly owned facilities. RSA 38:2, I, II (2000). In order to privately owned electric, gas and water utilities in order t o maintain and RSA chapter 38 empowers municipalities to take by eminent domain

facts of this case. from the well - reasoned superior court order, provides necessary context for the The following summary of RSA chapter 38 procedures, taken primarily

by laches. We affirm. Utilities Commission (PUC) within a reasonable time and that it was not barred court also ruled that the City filed its petition with the New Hampshire Public inverse condemnation in violation of the New Hampshire Constitution. The provisions of RSA chapter p. 3 38 ( p. 2 2000 & Supp. 2005) do not constitute a per se 3

of the City. On appeal, Pennichuck argues that the superior court erred by: (1) On August p. 3 31, 2004, the trial court granted summary judgment in favor

Brian McCarthy. by the affida vits of Nashua’s mayor, Bernard Streeter, and alderman at large, objected and filed a cross - motion for summary judgment, which was supported summary judgment, which was supported by its verified petition. The City judgment in superior court. Pennichuck objected and filed a motion for taking. The City then moved to dismiss Pennichuck’s c laim for declaratory and to determine damages the City must pay Pennichuck as a result of the asking it to find the condemnation of Pennichuck’s assets in the public interest On March 24, 2004, the C ity filed a condemnation petition with the PUC, a declaratory judgment to terminate or limit the City’s condemnation efforts. Pennichuck filed suit in the superior court on February 4, 2004, seeking

terminated negotiations with the City on January 27, 2004. $121 million. Pennichuck rejected this offer on Dece mber 15, 200 p. 3 3, and 30, 2003, the City made a formal offer to purchase Pennichuck’s assets for terms of a possible sale of some or all of Pennichuck’s assets. On November Pennichuck then entered into negotiations with the City concerning

letters. petition the PUC to condemn the Pennichuck assets identified in its inquiry the City. The next day, the City informed Pennichuck that it intended to 200 p. 3 3, Pennichuck responded that it did not intend to sell any of its assets to whether Pennichuck was willing to sell these assets to the City. On March 25, Pennichuck’s utilities, describing the assets it sought to acquire and inquiring Pennichuck. On February 5, 2003, the City sent written notification to each of Following the referendum, PSC withdrew from me rger talks with

portion of the water works system then serving the inhabitants of Nashua. electorate voted to pass a resolution authorizing the City to acquire all or a water works syste m. By referendum held on January 14, 200 p. 3 3, the Nashua one to adopt a resolution to acquire the plant and property of Pennichuck’s On November 26, 2002, Nashua’s board of aldermen voted fourteen to

City moved to intervene in the PUC proceedings and objected to the merger. a petition with the PUC seeking approval of the merger on J une 14, 2002. The was to become a direct and wholly owned subsidiary of PSC. Pennichuck filed Merger” with Philadelphia Suburban Corporation (PSC) whereby Pennichuck On April 29, 2002, Pe nnichuck entered into an “Agreement and Plan of

Nashua. communities as far away as Pittsfield. Pennichuck’s headquarters are in surrounding communities; however, Pennichuck’s services extend to p. 4 4

or benefits in the property. Id. at 601. the property and preventing the private owner from enjoying worthwhile ri ghts economically impracticable, resulting in a substantial reduction in the value of Limitations on use create a taking if they are so restrictive as to be New Hampshire Constitution.” Burrows, 121 N.H. at 598 (quotations omitted). benefit the public in some way constitute a taking within the meaning of our deprive the owner of the economically viable use of his [property] in order to consider whether “arbitr ary or unreasonable restrictions which substantially To determine whether an inverse condemnation has occurred, we

Hampshire, 122 N.H. at 1071. because a regulated utility is involved. Appeal of Public Service Co. of New 598 (1981). We ha ve found no greater right of the government to “take” merely there is an unconstitutional taking. Burrows v. City of Keene, 121 N.H. 590, We look to the individual circumstances of each case to determine whether Appeal of Public Service Co. of New Hampshire, 122 N.H. 1062, 1071 (1982). condemnation may be effected through either physical act or reg ulation. Town of New London, 119 N.H. 839, 8 p. 4 45 (1979) (citation omitted). Inverse in fact but does not formally exercise the power of eminent domain.” Sundell v. “Inverse condemnation occurs wh en a governmental body takes property

de novo. Webster v. Town of Candia, 1 p. 4 46 N.H. 430, 434 (2001). We review the trial court’s determination of the constitutionality of the statute

condemnation law is designed to protect against. from the economic use of its property that New Hampshire inverse persists. It is precisely this effect of depriving an individual or business condemned company while the cloud of threatened condemnation other businesses would consider acquiring or being acquired by the business in a normal fashion [and] makes it a practical imposs ibility that devastating effect of keeping a utility frozen and unable to operate its The sequence of events, allowable under RSA [chapter] 38, has the

no liability for th e costs imposed on the condemnee. Pennichuck argues: condemnor to initiate the taking process, but then walk away years later with result in inverse condemnation because they permit the City or any other Pennichuck argues that RSA 38:1 -:13 are facially unconstitutional and

I. Inverse Condemnation

petition was not barred by laches. the City filed its petition within a reasonable time; and (3) ruling that the condemnation in violation of the New Hampshire Constitution; (2) ruling that ruling that the proced ures of RSA chapter 38 do not create a per se inverse p. 5 5

occurred. which an owner holds property.”). We thus conclude that no taking has [where] the threatened taking is imminent, is but one of the conditions on that at some future time land might be taken under eminent domain, even See Cayon v. City of Chicopee, 277 N.E.2d 116, 119 (Mass. 1971) (“The fact

subject to the sovereign’s exercise of the power of eminent domain. risks of ownership in a system, such as ours, where all property is held fees in fighting the City’s attempted taking, these are simply the inherent proceedings, and while Pennichuck may have incur red legal and other period since the City first announced its intent to institute condemnation uncertainty and the value of its stock may have fluctuated over the While Pennichuck’s business operations may have been affected by

We agree with the trial court’s finding that:

give rise to a taking. Pennichuck was subject to RSA chapter 38 condemnation proceedings did not alleged fluctuation in the value of Pennichuck’s assets which took place while other grounds by Lingle v. Chevron, 12 p. 5 5 S. Ct. 1074 (2005). Similarly, any proceedings. Agins v. Tiburon, 447 U.S. 255, 263 n. 9 (1980), overruled on when a decrease or fluctuation in value results from municipal condemnation United States Supreme Court has refused to find an inverse condemnation dollars in shareholder investments while subject to RSA chapter 38. The occurred, alleging that it has suffered a loss of approximately eighty million Pennichuck, however, argues that an inverse condemnation has already

to the condemnation process h ave been completed. property, nor will such a deprivation occur unless and until all necessary steps 38, Pennichuck has not been deprived of the economically viable use of its Pen nichuck ultimately may or may not be condemned pursuant to RSA chapter operate while subject to RSA chapter 38 condemnation proceedings. While Appeal of Public Service Co. of New Hampshire, Pennichuck remains able to had been approved by the legislature. Id. at 1070 - 72. Unlike the utility in PUC order denying it the means to build the plant, the construction of which Co. of New Hampshire, the utility was unable to operate a plant as a result of a Service Co. of New Hampshire, 122 N.H. at 1071. In Appeal of Public Service consideration in determining whether a taking has occurred. Appeal of Public “distinct investment - backed expectations” is a particularly significant in which we stated that the extent to which a regulation has interfered with ut ility. Pennichuck relies upon Appeal of Public Service Co. of New Hampshire, investment - backed expectations for operating a long - lasting and successful condemnation because it substantially interferes with Pennichuck’s Pennichuck asks us to find that RSA chapter 38 effects inverse p. 6 6

held that a thirty - day time limitation applied to a proceeding for which there time.” Wilson v. Personnel Comm’n, 117 N.H. 783, 784 (1977). In Wilson, we time limitation “will prove a fair guideline as to what constitutes a reasonable constitutes a reasonable time in a substantively analogous situation, such a however, held that where the legislature has provided a time limitation for what limitation for filing a condemnation petition in RSA chapter 38. We have, Here, we presume that the legislature intended not to include a time

rather in the meaning of what it did say.” Id. legislative intent is to be found not in what the legislature might have said, but Geonetics, Inc., 121 N.H. 1048, 1050 (1981) (quotation omitted). “The words, and to have used the words of a statute advisedly.” Caswell v. BCI N.H. 30, 38 (2005). “T he legislature is presumed to know the meaning of statute to discern legislative intent.” Hughes v. N.H. Div. of Aeronautics, 152 statute’s language is clear and unambiguous, we do not look beyond the the language of the statute. We construe each statute as a whole, and if the “As in all cases underlining statutory construction, the star ting point is

condemnation petition.” provide a basis for determining what constitutes a ‘reasonable time’ to file a limitations in RSA [chapter] 38, it does contain some time - limited triggers that Pennichuck argues that “although there is no explicit st atute of

statutes, and, second, that the City’s actions were in fact unreasonable. that the trial court failed to consider time limitations in other condemnation condemnation petition within a reasonable time, Pennichuck contends, first, In support of its argument that the City failed to submit its

Steel Erectors, 150 N.H. at 334. We review the trial court’s application of the law to the facts de novo. Stateline judgment. N.E. Tel. & Tel. Co. v. C ity of Franklin, 141 N.H. 449, 452 (199 p. 6 6). is entitled to judgment as a matter of law, we will affirm the grant of summary that evidence discloses no genuine issue of material fact, and the moving party Stateline Steel Erect ors v. Shields, 150 N.H. 332, 334 (2003). If our review of drawn from them in the light most favorable to the non - moving party. we consider affidavits and other evidence as well as all inferences properly In reviewing whether the trial court properly granted summary judgment,

City did not file its condemnation petition within a rea sonable time. the trial court erred in granting summary judgment to the City because the Pennichuck argues that even if there was not an inverse condemnation,

II. Reasonable Time p. 7 7

domain, and in turn, the utility has only 60 days to respond to the notify the utility that it intends to take the utility’s assets by eminent RSA 38:3. Once this vote is taken, the municipality has only 30 days to The most critical trigger in the statute is the public vote on the taking.

argues that: should apply to the filing of the City’s condemnation petition. Pennichuck limitation which applies to other procedures governed by RSA chapter 38 Finally, we disagree with Pennichuck’s argument that the ninety - day

time period thus does not bar the action.” Id. condemnation action at any time. Failure to comme nce the action within the limitation, since the condemnor is, and in principle should be, free to initiate a Domain Act itself reads, “The time limits prescribed are not true statutes of Domain Act is not the law in this State and the language of the Model Eminent purchase of property. 6 Sackman, supra. However, the Model Eminent authorized, and within three months of the failure of negotiations for the condemnation petition within six months of the date the condemnation is petition. Under the Model Eminent Domain Act, a condemnor must file a Eminent Domain Act should apply to the filing of the City’s condemnation Nor do we agree with Pennichuck that the time limitations in the Model

not apply to municipal condemnation actions. directly controvert the legislative directive that the Eminent Domain Act should applying the time limitation contained in the Eminent Domain Act would by municipalities subject to RSA chapter 38. RSA 498 - A:3 (199 p. 7 7). Thus, Domain Act expressly exempts from its jurisd iction condemnation proceedings to file a condemnation petition. RSA 498 - A:4, III(c) (Supp. 2005). The Eminent Act reflects the legislature’s view that ninety days is a reasonable time in which Pennichuck’s contention that the ninety - day limitation in the Eminent Domain condemnation petition under RSA chapter 38. We do not agree with other condemnation statutes are not substantively analogous to filing a Here, unlike in Wilson, the time limitations governing proceedings in

Sackman, Nichols on Eminent Domain, § 24.0 p. 7 7[2], at 24 - 9 0 (3d ed. 1995). domain power. See, e.g., RSA 38:3, :7; RSA 498 - A:4, III(c) (1971); 6 J. period of time in which a condemnor must act when invoking its eminent found them to reflect the legislature’s view that ninety days is a reasonable Hampshire Eminent Domain Act and the Model Eminent Domain Act, and ninety - day limitation contained in other provisions of RSA chapter 38, the New Pennichuck argues that the trial court should have considered the

11 p. 7 7 N.H. at 7 p. 8 85. proceedings that were substantively analogous to the one challenged. Wils on, was no statutory time period, because the thirty - day period applied to 8

performance was due in a reasonable time); Leavitt v. Fowler, 11 p. 8 8 N.H. 541, brokers and sellers did not specify a time for payment of broker’s fees, Hopewell, 120 N.H. 46, 51 (1980) (where listing agreement between real estate performance is specified by statute or agreeme nt. See, e.g., Belleau v. that performance must be within a reasonable time where no time for This equitable principle is derived from contract principles which require

N.H. 165, 169 (1974). reasonable time. Hughes, 152 N.H. at 39; see also Opinion of the Justices, 114 its right of first refusal to purchase property, the State must perform within a in the absence of a statutory time limitation in which the State must exercise RSA chapter 3 p. 8 8, we a pplied a similar principle in Hughes. There, we held that had the occasion to apply this principle to condemnation proceedings under time. 6 Sackman, supra § 24.07[1], at 24 - 87 to - 89. While we have not before limitation, condemnation proceedings must be instituted within a reasonable Where a condemnation statute does not contain an explicit time

‘specific facts showing that there is a genuine issue for trial.’” reasonable. It argues that Pennichuck “simply did not offer the requisite and within six ty days of when Pennichuck terminated negotiations was chapter 3 p. 8 8, filing within twelve months of Pennichuck’s initial refusal to sell absence of a time limitation for filing a condemnation petition under RSA Nashua’s actions were in fact unreasonable.” The City argues that, in the competent evidence presented by Pennichuck, it should have det ermined that City’s actions were reasonable and argues that, “had the court considered Pennichuck next argues that the trial court erred in finding that the

th e City’s filing of its condemnation petition. apply a time limitation contained in another statutory provision to the timing of negotiations. We thus conclude that t he trial court did not err when it did not analogous to the City’s filing its condemnation petition following failed RSA chapter 3 p. 8 8 contemplates a process less complex and n ot substantively before resorting to filing a condemnation petition. The ninety - day limitation in which the City determined an offer price and waited for Pennichuck’s response condemnation petition, the parties engaged in complex negotiations, during In the fourteen months between the referendum and the City’s filing its considered price terms, appraisal value or the effect of possible negotiations. res pond to the municipality’s notice and, at that stage, need not have the January 14, 2003 referendum. Under RSA 38:3 and :6, a utility must only Pennichuck of its intention to take Pennichuck’s assets within thirty days of Here, the City complied with the provisions of RSA 38:3 and :6 by notifying

its legal sword to attempt to force the taking. must be an agreement in concept to sell, or the municipality must invoke request. RSA 3 p. 8 8:6. Thus, p. 9 90 days from the public vote, either there 9

Pennichuck. Simply put, they were all form and no substance. when in fact, [the City] made no serious or concerted effort to acquire appearance that the parties were talking about a potential acquisition, assets. [The City] plainly intended that these meetings create the never engaged in any meaningful due diligence review of the Pennichuck In short, the meetings were of necessity perfunctory because [the City] price for the Pennichuck assets or to examine tax and operational issu es. expert to advise it in the complex issues associated with establishing a [the City] never having retained a financial, tax, valuation or utility and belief, the superficial natur e of these meetings was a consequence of City], and concerned only issues of a general nature. On information assets. These meetings were always held in response to requests by [the meetings to discuss [the City’s] interest in purchasing Pennichuck or its Following [the City’s] March 26[, 2003] letter, the parties held occas ional

Pennichuck’s verified petition states:

Streeter and McCarthy. other competent evidence to refute the sworn averments of Messrs. Pennichuck’s as sets. Pennichuck has offered no counter affidavits or March 2003 and January 2004 to reach a negotiated acquisition of and Alderman McCarthy detailing the efforts the City undertook between [The City] has produced proof by way of the affidavits of Mayor Streeter

material fact. The trial court found that: Pennichuck argues that the trial court should have found a genuine issue of In determining whether the City’s delay in this case was reasonable,

proceedings was unreasonable). mu nicipality authority to condemn and commencement of condemnation (1 p. 9 909) (almost twelve years between date legislation passed granting of taking was not unreasonable); Lewis County v. McCutcheon, 101 P. 1083 urban redevelopment authority’s receipt of blight certification and declaration Authority of Pittsburgh, 544 A.2d 87 (Pa. Comm w. Ct. 1988) (ten years between unreasonable); In the Matter of Condemnation by Urban Redevelopment condemnation proceedings and exercise of condemnation rights was not years between conference of public service company authority to begin Rural Elec. Membership Corp., 363 N.E. 2d 995 (Ind. Ct. App. 1977) (elev en limitation. See, e.g., Public Service Co. of Indiana, Inc. v. Decatur County within a reasonable time where condemnation statutes lack an explicit time Other jurisdictions have required initiati on of condemnation proceedings

which to perform his obligations under the contract). a party will have a reasonable period of time after the specified closing date in 54 3 (1 p. 9 978) (when time is not of the essence in a purchase - and - sale agreement, p. 10 10

petition within sixty days. Moreover, Pennichuck’s verified peti tion does not with the City on January 27, 2004, and that the City filed its condemnation does not dispute the City’s evidence that Pennichuck terminated negotiations even if accurate, do not create a genuin e issue of material fact. Pennichuck valuation or utility expert” and did not engage in “meaningful due diligence,” Pennichuck’s allegations that the City “never retained a financial, tax,

verified petition in deciding summary judgment. III, the trial court was required to consider the evidence con tained in the incorporated into its cross - motion for summary judgment. Under RSA 491 - 8:a, Pennichuck’s verified petition was confirmed under oath and expressly

omitted). Pond Fish and Game Club v. Cormier, 133 N.H. 648, 653 (1990) (citation “An issue of fact is ‘material’ if it might affect the outcome of the suit.” Horse Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (citation omitted). reasonable [fact f inder] could return a verdict for the nonmoving party.” 141 N.H. at 452. “A dispute of fact is ‘genuine’ if the evidence is such that a do not satisfy the burden in opposing summary judgment.” N.E. Tel & Tel Co., of a genuine issue of material fact. RSA 491:8 - a, IV. “Conclusory assertions The party opposing summary judgment must set forth specific evidence

under RSA 38.” funds for consultants and counsel to plan for and pursue eminent domain moved as quickly as possible in February and March, 2004 to appropriate “Following Pennichuck’s termination of negotiations and filing of suit, the City by its first lawsuit on February 4, 2004.” The affidavit further states, negotiate further until it abruptly did so by letter of January 27, 2004, followed project.” It continues, “At no time did Pennichuck indicate it declined to ninety (190) hours of work during this period on all issues related to the calls between counsel. Outside counsel for the City itemized one hundred Dec ember 2003 there were four meetings between parties and fifteen telephone Alderman McCarthy’s affidavit states, “Between mid - August and

imminent. dozen subsequent statements to the press that a PUC filing was “would now proceed to . . . petition the PUC,” and despite more than a delay continued despite [th e City’s] March 26, 2003 statement that it with the PUC seeking authority to condemn Pennichuck’s assets. This year since the public referendum, [the City] had failed to file a petition Board of Aldermen voted to take Pennichuck[’s] assets and more than a As of February 4, 2004, more than fourteen months si nce the Nashua

The verified petition also states: p. 11 11

Murphy v. Timberlane Regional Sch. Dist., 973 F.2d 13, 17 (1st Cir. 1992). is not applied.” 27A Am Jur. 2d Equity § 179 (1996) (emphasis added); accord no t exist between the asserted prejudice and the delay in bringing suit, laches from the complainant’s delay in pursuing a claim. Where such causation does to apply, the defendant’s asserted prejudice claim must be caused by or result unlikely financial harm. 27A Am Jur. 2d Equity § 192 (1996). “For prejudice prejudice and the evidence must demonstrate more than me re hypothetical and suffered prejudice. A party must present evidence to explain the alleged We begin our laches analysis by considering whether Pennichuck

a laches claim. failed to prove that extraordinary o r compelling circumstances existed to permit pursuing acquisition of Pennichuck’s property.” It also found that Pennichuck the City’s PUC filing, as it has been aware at all times that the City was It found that “Pennichuck . . . cannot seriously claim to have been surprised by reasonable because the City was engaged in negotiations aimed at settlement. that the fourteen - month delay in filing the condemnation petition was negotiations aimed at settlement without litigation. Here, the trial court found allow a plaintiff to assert laches when the parties were actively engaged in reasoning in Petition of Bianco, 143 N.H. 83, 85 (1998), where we refused to law and granted summary judgment to the City. The trial court applied our The trial court found that Pennichuck ’s laches claim failed as a matter of

(2000). circumstances. Town of Seabrook v. Vachon Management, 144 N.H. 660, 668 municipality, it must also show the existence of extraordinary and compelling Weeks, 134 N.H. 237, 240 (1991). Where a party asserts laches against a was unreasonable delay and that prejudice resulted from the delay. State v. laches claim, t he party asserting laches bears the burden of proving that there filing its condemnation petition by the doctrine of laches. To succeed on a Finally, we consider Pennichuck’s assertion that the City is barre d from

III. Laches

that the City filed its condemnation petition within a reasonable time. negotiations with the City was reasonable. Thus, the trial court properly found condemnation petition within sixty days of the date P ennichuck terminated fourteen - month delay was explained by negotiations and that filing a unreasonable. Rather, a reasonable fact finder would have had to find the finder co uld have found that the fourteen - month delay in filing was evidence is considered in light of Pennichuck’s allegations, no reasonable fact telephone calls to negotiate the sale of Pennichuck. When this undisputed dispute the City’s evidence that the parties engaged in numerous meetings and p. 12 12

NADEAU, DALIANIS and GALWAY, JJ., concurred.

ruled that laches did not apply. the City engaged in unreasonable delay. We hold that the trial court correctly circumstances, we need not extend our laches analysis to determine whether Pennichuck cannot prove prejudice or extraordinary or compelling circumstances that would permit a laches claim against the City. Because Pennichuck also offers no evidence of extraordinary or compelling

evidence to show that the City’s delay in filing was th e cause of its losses. a result of the prospect of condemnation proceedings, Pennichuck offered no result of the referendum and Pennichuck’s shareholders may have lost value as Here, while PSC may hav e terminated merger talks with Pennichuck as a