2018-0649, City of Portsmouth v. 150 Greenleaf Avenue Realty Trust

demonstrate a reasonable present public need for taking the wetlands; (3) authority for taking the wetlands; (2) determining that the City failed to aside the taking based on a finding that the City did not set forth statutory un lawful. On appeal the City contends that the trial court erred in: (1) setting defendant s, 150 Greenleaf Avenue Rea lty Trust and Minato Auto, LLC, was the City’s taking by eminent domain of 4.6 acres o f land owned by the a bench trial in Superior Court (Delker, J.) in which the trial court ruled that DONOVAN, J. The plaintiff, City of Portsmouth (City), appeals following

Manchester (Joshua Wyatt on the brief), for the defendant s. Kuzinevich on the brief and orally), and Devine, Millimet & Branch, P.A., of Law Offices of John Kuzinevich, of Duxbury, Massachusetts (John

Hodgdon PLLC, of Concord (Mark P. Hodgdon on the brief), for the plaintiff. B. Folsom on the brief, and Mr. Felmly orally), and Law Office of Mark P. McLane Middleton, P.A., of Manchester (Bruce W. Felmly and Benjamin

150 GREENLEAF AVENUE REALTY TRUST & a.

No. 2018 - 0649 Rockingham

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

Boyle is also the principal of Minato Auto, LLC. 1 p. 2 29 - page ord er sustaining Boyle’s preliminary objection. The court determined Following a three - day bench trial in May 2018, the trial court issued a

public benefit to the trial court. See id. BTLA transferred the objection concerning necessity, public purpose, or net benefit” of the taking. See RSA 498 - A:9 - b, I ( p. 2 2010). In January 2017, the pr eliminary objection, challenging the “necessity, public use, or net - public Taking” with the Board of Tax and Land Appeals (BTLA). Boyle filed a line and the wetlands. In December 2016, t he City filed a “Declaration of acres of Boyle’s property in fee simple absolute which encompassed the sewe r adopted a resolution regarding the public necessity for the City to take 4.6 to begin i n January 2017. I n September 2016, the Portsmouth City Council In May 2016, the court scheduled a jury trial in the sewer line litigation

N.H. ___, ___ (decided January p. 2 24, 2020) (slip op. at 2 - 3). acquire a property interest in the land. See Boyle v. City of Portsmouth, ___ until it re moved the sewer line or exercise its power of eminent domain to line on his property; and (3) the City would either have to pay rent to Boyle the sewer line; (2) Boyle had authority to revoke permission to keep the sew er determined as a matter of law that: (1) the City had only a revoc able license for 2014, in the context of the sewer line litigation, the trial court, in part, properly maintain culverts under the sewer line (the sewer line litigation). In and that the City allowed water to back up on his land because it did not In 2010, Boyle sued the City, alleging tha t the sewer line was trespassory

City had an easement. purchased the prope rty, there was no record in the registry of d eeds that the State for the sewer line. The State sold the land in 1983. When Boyle and used by the Board. The City never obtained a wr itten easement from the of Education. The land at that time was owned by the State of New Hampshire that land, having received permission to do so from the New Hampshire Board had constructed a sewer lin e in an earthen berm across the western portion of the Route 1 Bypass and Greenleaf Avenue in Portsmouth. In 1968, the City In December p. 2 2003, Boyle purchased 13.78 acres of land on the corner of

Avenue Realty Trust. 1 James Boyle, as h e holds it in trust for himself through the 150 Greenleaf ease of reference, we refer to the land, as did the trial court, as belonging to The trial court found, or the record supports, the following facts. For

defendants was a basis to set aside the taking. We affirm. finding that the City’s purported improper motivat ion to end litigation with the that the burden on the condemnee outweighed the public necessity; and (4) finding that the City’s taking of the sewer line in fee simple was impro per and p. 3 3

RSA chapter 149 - I. Because the City argues for the first time on appeal that court). Thus, the trial court did not err by focusing only upon RSA 47:11 and sufficient to demonstrate that it raised all of its appeal issues before the trial (explaining that the appealing party has the burden of providing a record declaration. See Bean v. Red Oak Prop. Mgmt., 151 N.H. 248, 250 (2004) suffice. Nor does the record demonstrate that the City moved to amend the Declaration of Taking. The City’s general reference to “other statutes” does not RSA p. 3 31:92 (2019). However, the City did not refer to RSA 31:92 in its On appeal, t he City contends that, in fact, the takin g was justified under

RSA chapt er 149 - I (2005 & Supp. 2018). determined that the City based its tak ing authority on RSA 47:11 (2012) and exists under NH RSA 149 - I:2 and other statutes.” Accordingly, the trial court procedures set out in RSA 2 p. 3 30 et seq. and RSA 498 - A et seq.; further authority and to acquire by eminent domain property necessary for that effo rt following lawful power to undertake the ‘layout’ of sewers and drains (for stormwater) of Taking stated that “[p]ursuant to NH RSA 47:11 the City Council has the the condemnation is authorized.” RSA 498 - A:5, I, II(c). The City’s Declaration a “specific reference to the statute, chapter and section thereof, under which only by the filing in the [BTLA] of a declaration of taking” in writing containing RSA 498 - A:5 (2010) pr ovides that “[c]ondemnation . . . shall be effected

the facts de novo. Id. evidence. Id. Nevertheless, we review the trial court’s application of the law to measuring the credibility of witnesses, and determining the weight to be given court’s judgment on such is sues as resolving conflicts in the testimony, as the trial court based upon the same evidence. Id. Thus, we defer to the trial but rather, whether a reasonable person could have reached the same decision We do not decide whether we would have ruled differently than the trial court, support or are legally erroneous. O’Malley v. Little, 170 N.H. 272, 275 (2017). we uphold the court’s factual findings and rulings unless they lack evidentiary In reviewing a trial court’s decision rendered after a tr ial on the merits,

court sustained Boyle’s preliminary objection and set aside the condemna tion. the taking or the nature of the property taken, see RSA p. 4 498 - A:5, III (2010), the authority to amend the declaration of taking to decrease the physical extent of of exercising eminent domain authority.” Recogniz ing that it lacked the over the development” of the property and that this was “not a proper purpose City’s “true motive for seizing Boyle’s land was to cut off any future litigation the condemnation was not justified. Alternatively, the trial court ruled that the simple taking of 4.6 acres of Boyle’s land. Therefore, the trial court ruled that right along the sewer line did not outweigh the aggregate impact of the fee rights, the trial court dete rmined that the public’s need for a limited easement necessity for maintaining the sewer line against the burden on Boyle’s property wetlands, but did justify taking the sewer line. However, b alancing the public that the statutory authority cited by the City did not justify taking the 4

with Boyle. purpos es of stormwater management, but was, instead, to end the litigation that the City’s “true motive” for condemning Boyle’s property was not for trial court’s alternative ground for invalidating the taking, namely, its finding In light of our decision, we need not address the City’s challenge to the

court’s determination that RSA chapter 1 p. 4 49 - I does not authorize the taking. The record supports the trial court’s findings. Accordingly, w e uphold the trial waste treatment works’ on the wetland portion of the condemned property.” stormwater treatment, conveyance, and discharge systems, sewage and/or City has no plans for construction of any ‘drains or common sewers, line,” and the court found tha t the “undisputed evi dence in this case is that the property is not needed for the operation and mainten ance of the existing sewer trial court observ ed, the City’s engineer testified that “much of the condemned concerning a “stormwater syste m” are not supported by the evidence. A s the The City’s statutory construction is unduly strained and its arguments

catchment basins, etc.” arranging parts or elements, including wetlands, water courses, culverts, pipes, system for the subcatchment area that has been constructed by combining or contending that “[t] he property taken by the City is one part of a stormwater ‘ maintain, ’” and “took an unreasonably restrictive view of the word ‘construct, ’” management.” The City asser ts that the trial court “ignored the word can take raw land and keep it in that state for natural stormwater this chapter because its plain language does not suggest “that a municipality The trial court reasoned that taking the wetlands was not justified under

for the pur pose.” in land required by it,” the City “may lay out a sufficient quantity of such land person and the c ity cannot obtain for a reasonable price any land or easement to construct such” systems and/or facilities “across or on the land of any health or welfare.” Under RSA 1 p. 4 49 - I:2 (Supp. 2018), “[w]henever it is necessary treatment, works which [it] adjudge[s] necessary for the public convenience, treatment, conveyance, and discharge systems, sewage and/or waste “construct and maintain all main drains or common sewers, stormwater chapter 149 - I. Pursuant to RSA 149 - I:1 (Supp. 2018), the City has authority to did not justify taking the wetlands. The C ity disagrees, relying upon RSA The trial court determined that the statutory authority cited by the City

decline to address it. See id. grant in RSA 31:92,” the City has failed to preserve this argument, and we there is “clear precedent that [it] had au thority for the taking under the general p. 5 5

retired superior court justice s, specially assigned under RSA 490:3, concurred. HICKS and BASSETT, JJ., concurred; ABRAMSON and BROWN, J J.,