2007-381, STATE OF NH v. KOREAN METHODIST CHURCH of NH

The defendant, Korean Methodist Church of New

Cronin on the brief, and Mr. Cronin orally), for the defendant. Cronin & Bisson, P.C., of Manchester (John F. Bisson and John G.

general, on the brief and orally), for the State. to press. Errors may be reported by E-mail at the following address: Kelly A. Ayotte, attorney general (Lynmarie C. Cusack, assistant attorney

KOREAN METHODIST CHURCH OF NEW HAMPSHIRE

editorial errors in order that corrections may be made before the opinion goes No. 2007-381 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Rockingham Readers are requested to notify the Reporter, Supreme Court of New ___________________________

THE SUPREME COURT OF NEW HAMPSHIRE

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. 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 p. 2 22 as for $100,000. Notably, the Church did

preliminary objection. Church has a pending agreement to sell a portion of the area to a third party third-party damages for the partial use of the easement area; and (5) the

Church did not seek leave to submit a reply to the State’s response to its denied.” The State contends, and the Church does not dispute, that the Church’s property unfairly saddled the Church with tax liability and liability for ruled that, based upon the record before it, the “preliminary objection must be included the area where the Church’s property is located. that the Church is a voluntary organization; (4) taking an easement on the After reviewing the State’s response to the preliminary objection, the court taking was insufficient to warrant taking the Church’s principal asset, given hearing “on the issues of necessity, public purpose and net public benefit.” were available for purchase on the open market; (3) the net public benefit of the transfer its preliminary objection to the superior court for an evidentiary matter of public necessity; ( p. 2 2) other unimproved parcels suitable for mitigation Consistent with RSA 498-A:9-b, the Church requested that the BTLA

to the State’s declaration of taking on December 4, p. 2 2006. grossly mistaken. See RSA 230:14, :19, :45. finding of an occasion for laying out the mitigation area was fraudulent or

that there was occasion for the laying out of the mitigation area, which attend this hearing. Following the hearing, the special committee determined State contends, and the Church does not dispute, that the Church failed to rights of affected landowner and burden imposed upon municipality). The In it, the Church contended that: (1) the taking of its property was not a

A:5 (Supp. p. 2 2007) (amended 2006). The Church filed its preliminary objection take a conservation easement interest in the Church’s property. See RSA 498- New Hampshire Board of Tax and Land Appeals (BTLA), indicating its intent to On November 1, 2006, the State filed a declaration of taking with the

which belong to the Church. acquire approximately 760 acres for preservation, approximately four acres of whether “occasion” exists involves balancing public interest in layout against Rodgers Dev. Co. v. Town of Tilton, 147 N.H. 57, 59-60 ( p. 2 2001) (determining See RSA 230:14 (Supp. 2007) (amended 2006), :19 (1993), :45; see also economic, social and environmental effects of the proposed mitigation efforts. the layout of the proposed mitigation area and to hear evidence regarding the property owner, see RSA 230:17 (1993), to determine if there was “occasion” for Executive Council held a public hearing, preceded by notice to each affected On April 8, 2004, a special committee appointed by the Governor and

To compensate for these environmental impacts, the State has sought to approximately twelve acres of wetlands and one acre of the Merrimack River. p. 3 3

of statutory construction that the word ‘may’ is permissive in nature . . . .” that the superior court “may” hold an evidentiary hearing. “It is a general rule preliminary objection to a declaration of taking. RSA 498-A:9-b, II provides

Lambert, 147 N.H. 295, 296 (2001). Unless a party establishes that such a objective basis sufficient to sustain the discretionary judgment made.” State v. Under this standard, we review only whether “the record establishes an under our unsustainable exercise of discretion standard. See id. at p. 3 355-56. We review the superior court’s decision to hold an evidentiary hearing

the Matter of Bazemore & Jack, 15 p. 3 3 N.H. 351, 354 (2006).

court, preliminary objection, the BTLA must transfer the objection to the superior superior court with the discretion to hold an evidentiary hearing on a The Church concedes, as it must, that RSA 498-A:9-b, II vests the challenge the necessity, public use and net-public benefit of the taking. declaration of taking. See RSA 498-A:9-b, IV; see also RSA 498-A:9-a, V. must then determine the damages, if any, due the condemnee, and dismiss the taking within thirty days after the return day of the notice. (Supp. 2007). If the superior court grants the preliminary objection, the BTLA compensation due the condemnee for the taking. See RSA 498-A:9-b, III, :25 objection, the BTLA must then proceed to determine the amount of just objection,” RSA 498-A:9-b, II. If the superior court denies the preliminary “may conduct an evidentiary hearing before it rules on the preliminary see RSA 498-A:9-b, I, which must then require the State to respond and

RSA 498-A:9-a, I(c). If this is the ground upon which the condemnee files a

There are three permissible grounds for the objection, one of which is to

(1997). The condemnee may file a preliminary objection to the declaration of deeds and notice must also be given to the condemnee. See RSA 498-A:7, :8 the declaration must then be filed with the applicable office of the registry of to due process. discretion, and, second, that it violated the Church’s State constitutional right first file a declaration of taking with the BTLA. See RSA 498-A:5. A record of asserts, first, that this failure constituted an unsustainable exercise of condemnation proceedings. See RSA 498-A:4, IV(c). To do so, the State must See RSA 498-A:4, IV(b). If the offer is rejected, the State may commence 498-A:4 (Supp. 2007). If the offer is accepted, title may then be transferred. it, submit an offer to purchase the property to the property owner. See RSA obtain an independent appraisal of the property to be taken and, based upon Supp. 2007). Before the State may initiate a condemnation proceeding, it must process under the Eminent Domain Procedure Act, RSA chapter 498-A (1997 & Before addressing the Church’s first argument, we briefly outline the

an evidentiary hearing before ruling on the preliminary objection. The Church The focus of the Church’s appeal is upon the trial court’s failure to hold p. 4 4

have ample support in the record, we uphold them. concern the Church’s failure to plead gross mistake or fraud. As these findings lacked support for certain findings. The only findings relevant to this appeal

the Church failed to provide the court with the other side. rights to due process. See N.H. CONST. pt. I, art. 15. conduct an evidentiary hearing violated the Church’s State constitutional We turn next to the Church’s contention that the trial court’s failure to

evidentiary hearing was unsustainable because without it, the trial court Third, the Church asserts that the trial court’s decision not to hold an

fraud. If the trial court had “only one side of the debate” before it, it is because fraudulent or grossly mistaken. because the Church’s preliminary objection failed to plead gross mistake or there was an occasion for the laying out of the mitigation area as proposed was that this is true, it is not because there was no evidentiary hearing, but objection, the Church had to establish that the special committee’s finding that evidentiary hearing, it considered “only one side of the debate.” To the extent preliminary objection. The trial court ruled that, to prevail on its preliminary Second, the Church argues that because the trial court did not hold an

250. preserve this argument, and we decline to address it. See Bean, 151 N.H. at prove fraud or gross mistake was error. Accordingly, the Church has failed to to show that the Church ever argued before the trial court that requiring it to see Sup. Ct. R. 13, 16(3)(b). The record provided in this appeal, however, fails before the trial court. Bean v. Red Oak Prop. Mgmt., 151 N.H. 2 p. 4 48, 250 (2004); with a record sufficient to demonstrate that it raised all of its appeal issues As the appealing party, the Church had the burden of providing the court

agree. trial court’s decision not to hold an evidentiary hearing on the Church’s The State counters that the Church failed to preserve this argument, and we Church contends that requiring it to prove fraud or gross mistake was error. The Church asserts three arguments against this conclusion. First, the

to hold an evidentiary hearing was an unsustainable exercise of discretion. offer of proof. Absent this, we decline to hold that the trial court’s decision not however, failed even to allege fraud or gross mistake, much less provide an

Here, the record establishes an objective basis sufficient to sustain the

case, it will not be disturbed. Id. ruling was clearly untenable or unreasonable to the prejudice of the party’s p. 5 5

requirements would entail. administrative burdens that the additional or substitute procedural

government’s interest, including the function involved and the fiscal and

BRODERICK, C.J., and DALIANIS, GALWAY and HICKS, JJ., concurred.

deprivation of such interest through the procedures used, and the probable decline to review it. See id. private interest affected by the official action; (2) the risk of an erroneous these circumstances, therefore, we consider this argument undeveloped and received, it also had a right to an evidentiary hearing in superior court. Under establishing that, in the face of the process that the Church indisputably of Nottingham, 1 p. 5 53 N.H. at 552, and points to no controlling precedent “neither cites nor discusses the foregoing three-factor analysis,” Appeal of Town (2006); see Mathews v. Eldridge, 424 U.S. 319, 335 (1976). The Church

superior court, we normally would examine the following three factors: (1) the To determine whether due process required an evidentiary hearing in the