2004-689 RYAN JAMES REALTY, LLC v. VILLAGE AT CHESTER CONDOMINIUM ASSOCIATION & a.

The plaintiff, Ryan James Realty, LLC (Ryan), appeals the

memorandum of law, for defendant Town of Chester.

Wadleigh, Starr & Peters, P.L.L.C., of Manchester (Dean B. Eggert on the

at Chester Condominium Association Mark E. Connelly, of Concord, by brief and orally, for defendant Villages

Bisson on the brief, and Mr. Cronin orally), for the plaintiff. Errors may be reported by E-mail at the following address: Cronin & Bisson, P.C., of Manchester (John G. Cronin and John F.

VILLAGES AT CHESTER CONDOMINIUM ASSOCIATION & a.

page is: http://www.courts.state.nh.us/supreme. v.

errors in order that corrections may be made before the opinion goes to press. No. 2004-689 Hampshire, One Noble Drive, Concord, New Hampshire 03301, of any editorial Rockingham Readers are requested to notify the Reporter, Supreme Court of New ___________________________

THE SUPREME COURT OF NEW HAMPSHIRE

a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as p. 2 “expandable” on the site plan map. leaving approximately 172.9 acres remaining in land designated as

Chester,” describes by metes and bounds the 209.93 acres

Chester Zoning Board of Appeals to subdivide the property.

condominium. Phases I, II, and III totaled approximately thirty-seven acres,

Exhibit B of the Declaration, entitled “Description of Expandable Land for

received title to the 172.9 acres if the Declarant had obtained approval from the

approximately seven and one-half acres from the expandable land to the which provided for construction of ten additional units and submission of right to expand development of the condominium on “expandable land.” May 18, 1988, the Declarant recorded an amendment to initiate Phase III, approximately twenty-two and one-half acres. The Declaration reserved the attached to the Declaration. The map shows that Phase I occupied condominium in the Declaration. The court stated that Ryan might have court found that the Declarant had submitted all 209.93 acres to the behalf of the unit owners of the condominium, had title to the 172.9 acres. The

approximately seven acres of the expandable land to the condominium. On

description by reference to a parcel labeled “Phase I” on a site plan map

After considering the parties’ motions, the court ruled that the Association, on

conveyance to Ryan in 1995. another developer. The property was conveyed multiple times, ending with a II, which provided for construction of ten additional units and submission of Mortgage foreclosed on its mortgage and deeded the remaining 172.9 acres to On October 22, 1987, the Declarant recorded an amendment to initiate Phase Chester,” states the metes and bounds of the submitted land, summarizing the such an amendment no later than seven years from the date of the Declaration. land.” Exhibit A of the Declaration, entitled “Description of Submitted Land for with infrastructure such as roads and sewerage, all within the “submitted the parties to submit motions for summary judgment on the issue of title. regarding its right to further develop the 172.9 acres. The court first ordered In 2003, Ryan petitioned the superior court for a declaratory judgment

property. After the Declarant submitted Phase III, First New Hampshire First New Hampshire Mortgage Corporation held a mortgage on the require an amendment to the Declaration, and that the Declarant could record

Declaration provided for initial development of ten two-unit buildings, along

The Declaration states that any development beyond Phase I would

desire to build a one-hundred-unit condominium on 209.93 acres. The identified in Exhibit A. Declaration established the Villages at Chester Condominium and stated its excluding the land condominium (Declaration) in the Rockingham County Registry of Deeds. This

of Chester, Limited Partnership (Declarant) recorded a declaration of The record supports the following facts. On March 11, 1987, the Villages adding more land.” p. 3 condominium while reserving the right to expand the condominium by later declaring an expandable condominium, a developer may submit land to the

condominium, and numerous other provisions. RSA 356-B:16, III. “By

cite the first page of the Declaration, which states:

description of the “additional land,” which is the land that may be added to the

association, and the developer. to the condominium. the condominium, the developer transfers ownership of those portions of land

209.93 acres to the condominium. To support this assertion, the defendants In the instant case, the trial court ruled that the Declarant submitted all

an explicit reservation of the option to add land to the condominium, a legal I. Submission

defines the rights as among the condominium owners, the condominium Id. at 522.

amends a condominium declaration to submit portions of the additional land to Declaration. Town of Windham, 146 N.H. at 520. When a developer expandable condominium, and, therefore, submitted the entire parcel in the Declarant did not formally subdivide the parcel, the Declarant did not create an

separate the land submitted to the condominium from the disputed land. condominium is an “expandable condominium,” the declaration must contain

condominium instruments include a declaration of condominium, which Town of Windham v. Lawrence Sav. Bank, 146 N.H. 517, 520 (2001). The condominium instruments in the local registry of deeds. RSA 356-B:7, :11; (2001). The Act provides that a condominium is created by recording v. Village of Winnipesaukee Timeshare Owners’ Assoc., 147 N.H. 111, 113 the entire parcel in the Declaration. They also argue that, because the governs all condominiums and condominium projects. RSA 356-B:2; Neumann Entitled the “Condominium Act,” RSA chapter 356-B (1995) (the Act)

152 N.H. 30, 35 (2005). the trial court erred by indicating that subdivision approval was required to application of law to the facts de novo. See Hughes v. N.H. Div. of Aeronautics, that there are any genuine issues of material fact, we review the trial court’s Since both parties moved for summary judgment and neither contends

The defendants agree with the trial court that the Declarant submitted

submitted all 209.93 acres to the condominium. Secondly, Ryan argues that Ryan argues that the trial court erroneously found that the Declarant the 172.9 acres remaining of the parcel after exclusion of Phases I, II, and III. The sole question on appeal is who has title to the “disputed land,” i.e., p. 4 209.93-acre parcel,

Expandable Land for Chester,” describes by metes and bounds the entire

designated as “Phase I.” In contrast, Exhibit B, entitled “Description of the term “submitted land” as used throughout the Declaration as the land would already have had title to the entire 209.93 acres. Interpreting the parcel shown as Phase I” on the site plan map. Exhibit A, therefore, defines

amendments would have been unnecessary because the condominium owners describes by metes and bounds an area that Exhibit A summarizes as “the

entire 209.93 acres to the condominium in the Declaration, these subsequent Declaration. Entitled “Description of Submitted Land for Chester,” Exhibit A condominium from the additional land. Had the Declarant submitted the submitting the land designated as “Phase II” and “Phase III” to the

submitted the entire parcel to the condominium. We disagree.

interpretation is that the “land submitted herein” is defined in Exhibit A of the We note that the Declarant filed two amendments to the Declaration,

and B clearly distinguish between the submitted land and the additional land. plain meaning of the language used in the contract. refers only to land submitted “herein,” the defendants argue that this language ambiguity, however, the parties’ intent will be determined from the excluding the parcel described in Exhibit A. Exhibits A this language does not explicitly refer to the entire p. 4 209.93-acre parcel, and “submits the above land,” which refers to the “land submitted herein.” Though

What the trial court and the defendants failed to consider in their

negotiated, and reading the document as a whole. Absent

only from one page of the Declaration. This first page states that the Declarant The language that the trial court and the defendants reference comes

review statute shall in all cases control over any construction inconsistent therewith”). quotations omitted); cf. RSA 356-B:13 (“a construction conformable with the Lawyers Title Ins. Corp. v. Groff, 148 N.H. 333, 336-37 (2002) (citations and and use, in the manner provided by RSA Chapter 356-B.

circumstances and the context in which the agreement was by the parties its reasonable meaning, considering the When interpreting a written agreement, we give the language used

de novo. Frederick v. Frederick, 141 N.H. 530, 531 (1996). The interpretation of a written document is a question of law, which we

above land and buildings to the condominium form of ownership the entire 209.93 acres] . . . . The Declarant hereby submits the land submitted herein . . . by virtue of a deed [which transferred The Villages at Chester Limited Partnership is the sole owner of the expandable land. p. 5 obligation to obtain approval for further subdivision of that

the lot as “expandable land” did not relieve the developer of the

the planning board’s approval of a site plan showing a portion of

obtain subdivision approval from the planning board. Moreover, expandable land did not relieve the developer of the obligation to transfer property to the condominium association from the

divestment of title to the property.

an expandable condominium. the Condominium Act allowed the developer to reserve the right to

uses unrelated to that of an expandable condominium.

regulations is a fine pursuant to RSA 676:16 (1996), Ryan asserts, not a ownership of the remaining acreage. The penalty for violating subdivision the parcel before submitting part of it to the condominium does not determine Ryan argues that whether or not the Declarant should have subdivided

means that the Declarant was required to obtain subdivision approval to create alternative procedure for subdivision approval. . . . The fact that argument, the defendants rely on Id. at 521-22. The defendants argue that our holding in Town of Windham

condominium did not authorize the bank to further subdivide the property for

submitted.

We do not interpret the Condominium Act as providing an submitted the entire 209.93-acre parcel in the Declaration. To support their Declarant failed to create an expandable condominium and, therefore, Id. at 522. We stated: subdivision approval before submitting land to the condominium, the the local planning board’s initial subdivision approval for an expandable third party, without obtaining subdivision approval. Id. at 519. We held that Id. at 519. The bank then conveyed part of the remaining land to a its mortgage and acquired title to the portion of the parcel that had not been submitted portions of the parcel to the condominium, the bank foreclosed on condominium. condominium. Town of Windham, 146 N.H. at 518-19. After the developer condominium. The remaining 172.9 acres were not submitted to the a mortgage on a parcel of land being developed as an expandable acre parcel. The subsequent amendments submitted Phases II and III to the Town of Windham. In that case, a bank held

Next, the defendants contend that, because the Declarant did not gain

Declaration was only that land designated as “Phase I,” not the entire 209.93- Declaration as a whole, we conclude that the land originally submitted in the fine for each parcel transferred or an injunction. Assuming without deciding

The municipality may enjoin a transfer or sale which violates the

that the penalty for failure to obtain appropriate subdivision approval is a civil sought in this case. In relying upon

RSA p. 6 676:16 and was subject to a fine.

a $500 civil penalty for each lot or parcel transferred or sold without approval.”

penalty of $1,000 for each lot or parcel so transferred or sold . . . . the legislature did not see fit to include. condominium does not affect title to the disputed land. RSA p. 6 676:16 provides subdivision approval is a fine or an injunction, neither of which the Town has was required to obtain subdivision approval before creating an expandable The same reasoning applies to the instant case. Whether the Declarant

the third party, we affirmed the trial court’s conclusion that the bank violated Town of Windham, 14 p. 6 6 N.H. at 520. Rather than voiding the bank’s transfer to

approved by the planning board, RSA p. 6 676:16 provides that the owner shall pay “When a property owner transfers or sells land before a subdivision has been consider our discussion of the municipality’s remedy in that case. We stated: approved by the planning board . . . shall forfeit and pay a civil consider what the legislature might have said or add language that transfers or sells any land before a plat of the subdivision has been Town of Windham, the defendants failed to municipality that has adopted subdivision regulations who against one who transfers land without first obtaining the necessary The above statutory language clearly states that a municipality’s remedy Subdivisions,” states: RSA 676:16 (Supp. 2005).

beyond it for further indication of legislative intent, and we will not a statute’s language is plain and unambiguous, we need not look Any owner . . . of any land located within a subdivision in a ascribe the plain and ordinary meanings to the words used. When

RSA p. 6 676:16, entitled “Penalties for Transferring Lots in Unapproved

omitted). Woodview Dev. Corp. v. Town of Pelham, 152 N.H. 114, 11 p. 6 6 (2005) (citations

first examine the language of the statute, and, where possible, as expressed in the words of the statute considered as a whole. We review de novo. We are the final arbiters of the legislature’s intent The interpretation of a statute is a question of law, which we

Our standard of review for interpretation of a statute is as follows: p. 7 7

have title to the disputed land.

BRODERICK, C.J., and DALIANIS and DUGGAN, JJ., concurred.

accordance with the creation of an expandable condominium, Ryan would still that the Declarant needed subdivision approval to transfer its land in