2010-798 Curtis Avery & a. v. New Hampshire Department of Education & a.

No. 2010-798

Merrimack

the Superior Court (McNamara HICKS, J. The petitioners, Curtis and Deborah Avery, appeal an order of

Upton & Hatfield, LLP

a Michael A. Delaney

Concord School District. O'Shaughnessy on the brief, and Mr. O’Shaughnessy orally), for respondent

for respondent New Hampshire Department of Education. attorney general, and Kristen A. Fiore, attorney, on the memorandum of law),

Spinella, Jr. on the brief and orally), for the petitioners.

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 to press. Errors may be reported by E-mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any 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

sufficient to state a basis upon which relief may be granted. Ossipee Auto to determine whether the allegations contained in the petitioners’ pleadings are Generally, in ruling upon a motion to dismiss, the trial court is required

N.H. Admin. Rules not limited to pertinent data relative to” the petitioners’ property. (Quoting contiguous or not, that can be acquired to enlarge a school site’ including but brackets omitted). A jurisdictional challenge based upon lack of standing is “‘pertinent data relative to land values and the availability of other property, relief.” Baer v. N.H. Dep’t of Educ., 160 N.H. 7 p. 2 27, 729 (2010) (quotation and requirements in Rules 321.03(h) and 321.30 because it failed to include whether the [petitioners] ha[ve] sufficiently demonstrated [their] right to claim motion to reconsider. This appeal followed. insufficient as a matter of law and did not fully comply with” the waiver [petitioners’] unsubstantiated allegations and determine, based on the facts, standing to bring the action. The trial court agreed and denied the petitioners’ petitioners alleged that the District’s waiver application “was factually claim but, instead, raises certain defenses, the trial court must look beyond the The respondents moved to dismiss, asserting that the petitioners lacked motion to dismiss does not challenge the sufficiency of the [petitioners’] legal waiver of the minimum lot size requirement is “invalid and void.” The In August 2010, they filed a petition seeking a declaratory judgment that the as true, construing them most favorably to the petitioners. Id. “When the The petitioners own rental property adjacent to the Kimball School lot. determination, the court would normally accept all facts pled by the petitioners Parts v. Ossipee Planning Board, 134 N.H. 401, 403 (1991). To make this

school building aid. See (the waiver rules). DOE granted the waiver request and the District received size requirements with DOE pursuant to Rules 3 p. 2 21.30 and 321.03(g) and (h) 321.03(f)(1). As a result, the District filed an application for a waiver of the lot size requirements set forth in New Hampshire Administrative Rules, Ed The lot size for the proposed new school building did not meet the minimum lot School Board for the District voted to demolish and rebuild Kimball School. The following facts are taken from the record. In December 2009, the the waiver threatened to diminish the value of their property. waiver and that DOE acted illegally in granting the waiver. They claimed that contended that the District failed to satisfy the regulatory requirements for the

(amended p. 2 2010) (school building aid statutes). RSA 198:15-a (Supp. 2010); RSA 198:15-b (2008)

(DOE). We affirm. District (District) by respondent New Hampshire Department of Education judgment relating to a lot size waiver granted to respondent Concord School p. 3 “question the validity of a law.” Benson v. N.H. Ins. Guaranty Assoc. and effect of a relation between [a petitioner] and the [respondent]” as well as to 491: p. 2 22 provides a means to obtain a “judicial declaration as to the existence DOE’s waiver decision pursuant to RSA 491:22 and RSA 541-A:24. RSA 3 The petitioners sought a declaratory judgment regarding the validity of

must demonstrate that he or she has standing to do so. See To maintain an action under RSA 491:22 or RSA 541-A:24, a petitioner

application, but was not.” potential for enlargement that was required to be disclosed in the waiver Comm., 128 N.H. 539, 541 (1986) (construing predecessor to RSA 541-A:24). been acquired to enlarge the lot for which the waiver was requested – a 491:22.” Baer, 160 N.H. at 730; see Town of Orford v. N.H. Air Resources prejudice to their personal rights . . . as abutters whose property could have for standing under the general declaratory judgment statute set forth in RSA test for standing under RSA 541-A:24 because they “allege impairment or pursuant to RSA 541-A:24 must, as a threshold matter, meet the requirements school building aid statutes. The petitioners further argue that they satisfy the 730; Asmussen, 145 N.H. at 587. A declaratory judgment action “brought visited injury on” them, irrespective of the purpose of the waiver rules and the Baer, 160 N.H. at that [the District’s failure to include their property in its waiver application] has in an action under RSA 491:22 (2010) and RSA 541-A:24 (2007), “[i]t is enough challenged was designed to protect.” (Emphasis omitted.) They contend that, (2000). demonstrate that they “suffered a legal injury against which the rule being procedures act. Asmussen v. Comm’r, N.H. Dep’t of Safety, 145 N.H. 578, 586 The petitioners argue that the trial court erred in requiring them to for challenging the validity or applicability of a rule under the administrative against the other.” (quotation omitted)). RSA 541-A:24 provides a mechanism to rights or titles justiciable without proof of a wrong committed by one party new right created by the [declaratory judgment] statute is to make disputes as 590, 593 (2004); see Gitsis v. Thornton, 91 N.H. 192, 193 (1940) (“The only

waiver. Relying upon Baer rules and the school building aid statutes under which the District sought the property values within a municipality, is unrelated to the purpose of the waiver standing to challenge the waiver because the purported injury, protection of In this case, the trial court determined that the petitioners lacked

they therefore have no standing to challenge the waivers.” is no different from that of any other taxpayers in the City of Concord, and . . .

trial court’s determination on standing de novo. See id. such a defense. Id. Since the relevant facts are not in dispute, we review the p. 4 4

Id We reject the petitioners’ contention that New Hampshire Bankers

at 587 (noting, in action brought under RSA p. 4 491:22 and RSA 541-A:24, that thereby.” Baer, 160 N.H. at 730 (quotation omitted); see Asmussen, 145 N.H. unless [they] show[] that some right of [theirs] is impaired or prejudiced petitioners will “not be heard to question the validity of a law, or any part of it, whether the petitioners have standing in this case. through a decree of a conclusive character. find no error in the trial court’s application of this framework to the question RSA 491:22 and RSA 541-A:24. As discussed above, under these statutes, the which will permit an intelligent and useful decision to be made the petitioners’ action properly falls under RSA 491:22 and RSA 541-A:24, we at 128-29. Here, however, the petitioners brought their action pursuant to future cases. Furthermore, the controversy must be of a nature petitioners lacked standing to challenge the waiver decision. Whether or not interest is within the zone of interests regulated or protected by the statute. Id. Here, the trial court applied the above framework in determining that the chapter 541 requires only injury in fact, not a showing that the asserted cases. Nelson, 113 N.H. at 127. In that case, we held that standing under RSA appeal under RSA chapter 541, governing rehearings and appeals in certain utilized an erroneous legal standard to assess standing. Nelson involved an Association v. Nelson, 113 N.H. 127 (1973), demonstrates that the trial court

set of facts, and it cannot constitute a request for advice as to

under which the action has occurred. Cf. id. legal or equitable right arising out of the application of the rule or statute declaratory judgment action where the party alleges an impairment of a present . at 731 (quotation omitted). Simply stated, a party has standing to bring a

under RSA p. 4 491:22 merely by demonstrating that he has suffered an injury. Cf adverse interests. The action cannot be based on a hypothetical Contrary to the petitioners’ suggestion, a party does not obtain standing definite and concrete touching the legal relations of parties having The claims raised in any declaratory judgment action must be

thereby.” Baer, 160 N.H. at 730 (quotation omitted). any part of it, unless he shows that some right of his is impaired or prejudiced RSA p. 4 491:22, I. “A party will not be heard to question the validity of a law, or RSA 491:22, a party must claim “a present legal or equitable right or title.” independent statutory basis for standing”). In order to have standing under (stating that Massachusetts declaratory judgment statute “does not provide an Enos v. Secretary of Environmental Affairs, 731 N.E.2d 525, 528 (Mass. 2000) .

under RSA p. 4 491:22. See Baer, 160 N.H. at 730. Therefore, we focus our analysis upon whether the petitioners have standing p. 5 5

Such matters of public policy are reserved for the legislature. See the school building aid statutes, they make their argument in the wrong forum. standing to challenge the grant of a lot size waiver under the waiver rules and petitioners argue that, as a matter of public policy, abutters should be afforded and that “[p]ublic policy will not stand for such a result.” To the extent the for failure to apply the waiver rules, DOE’s grant of aid will be unreviewable Finally, the petitioners argue that unless abutters have standing to sue

DALIANIS, C.J.