Commerce Park Condominium Association

2. Whether the trial court erred in concluding that the Appellant/Declarant was required to substantially construct convertible land (i.e. Building C) within a specified 5 to 10

1/26/2023 2:23 PM Rockingham Superior Court This is a Service Document For Case: 218-2019-CV-01349

on

Document Sent to Parties

Clerk's Notice of Decision

01/26/2023

THE STATE OF NEW HAMPSHIRE

ROCKINGHAM, SS SUPERIOR COURT

COMMERCE PARK CONDOMINIUM ASSOCIATION

v.

LITTLE DEER VALLEY, LLC

218-2019-CV-01349

DEFENDANT’S MOTION FOR RECONSIDERATION

NOW COMES Little Deer Valley, LLC (“LDV”) by and through its counsel Orr &

Reno, P.A. and moves for reconsideration of the Court’s January 26, 2023 Order granting

Commerce Park Condominium Association’s (the “Association”) motion for summary

judgment and denying LDV’s motion for summary judgment. In support, LDV states as follows.

INTRODUCTION

The Court has conflated “conversion” with “construction” in contravention to the New

Hampshire Supreme Court’s holding in Condominiums at Lilac Lane Unit Owners’ Ass’n v.

Monument Garden, LLC. 170 N.H. 124 (2017). “To convert convertible land into units, a

declarant must ‘record an amendment to the declaration describing the conversion’ along with

applicable site plans and floor plans.” Id. at 130 (quoting RSA 356-B:23). Recordation is the

requirement – not construction. Despite the fact that LDV met the recordation requirement, the

Court concluded that construction was required in order for LDV to have legally converted the

convertible land – i.e. Building C. LDV respectfully requests this Court to reconsider its decision

and grant summary judgment in favor of LDV.

Filed File Date: 2/6/2023 12:04 PM Rockingham Superior Court E-Filed Document or misapprehended. Motion DENIED. of law or facts that the Court has overlooked The defendant has not raised any points Honorable Daniel I. St. Hilaire February 16, 2023

on Document Sent to Parties Clerk's Notice of Decision 02/16/2023 2/16/2023 10:26 AM Rockingham Superior Court This is a Service Document For Case: 218-2019-CV-01349

ARGUMENT Despite Supreme Court precedent to the contrary, this Court concluded that LDV was required, by law, to start physical construction of Building C by 2015 in order for LDV to trigger conversion of convertible land. In doing so, the Court relied on Shepherds Hill Homeowners Ass’n, Inc. v. Shepherds Hill Dev. Co., LLC. No. 2013-CV-241 (NH Super. March 18, 2014)(Colburn, J.). Shepherds Hill is distinct from this case and the Court’s conclusion is contradictory to New Hampshire’s Condominium Act. By relying on Shepherds Hill, the Court misapprehended the facts and applicable laws of this case. In Shepherds Hill, the declarant realized that the time to convert was about to expire, but had no recordable plans for its convertible land. Shepherds Hill, No. 2014-0306 at *2-3. To avoid missing the conversion deadline, the declarant converted the land into three “land only units” that it could convert into units of its choosing in the future. The declarant identified the units as “convertible space.” Id. The Shepherds Hill court examined New Hampshire’s Condominium Act which defines “unit” as “a portion of the condominium designed and intended for individual ownership and use” and determined that the land only units were “not intended for individual ownership and use, but rather are large swaths of land upon which actual units may be constructed in the future.” Id. at *5-6. Units must be defined and identified for individual ownership and use for conversion to occur and for the units to be created. Id. It is not enough to set aside land that “may” be converted into units of the declarant’s choosing at a later date. Id. Standing in stark contrast to Shepherds Hill, LDV did define and identify its units. LDV’s 2010 Amendment to its Declaration listed each unit’s number, approximate square footage, number of rooms, common area access points, and ownership percentage. It created each unit through its conversion and committed to constructing the units identified, the same units it had identified in its Original Declaration in 2005. Also, unlike LDV, the declarant in Shepherds Hill did not create units. Rather, it Attempted to preserve its right to do so beyond the statutory limits by creating “land only units” that could be converted into units of its choosing in the future. Id. at *3. The Shepherds Hill declarant argued that its attempt to convert its convertible land into land units that could be converted again later complied with New Hampshire’s Condominium Act. Id. at *5-6. The declarant’s intention and the legal questions posed are distinct from this matter. LDV successfully converted its convertible land into units intended for individual use. It did not attempt to preserve its conversion deadline beyond the statutory deadline. Moreover, the Shepherds Hill’s declarant failed to provide any site plans and floor plans. Failing to provide any adequate notice to the condominium holders regarding future construction caused the court to find that the conversion was contrary to the Act’s purpose of protecting the reasonable expectations of the parties. Id. at *6-7. Everything from duplexes to 8-Plexes could have been added to the Shepherds Hill condominium, thus running counter to the express purpose of the Act to give condominium purchasers/owners adequate notice of future construction. Here, LDV committed to the location of the units and identified them, as the statute requires. The Commerce Park condominium owners knew that Building C was going to be built in the future and would have the same exact layout as the existing Buildings A and B. LDV adequately described the conversion and met the express language of the New Hampshire’s Condominium Act. Once a condominium is created, the Act does not impose construction deadlines on the declarant. N.H. Rev. Stat. Ann. § 356-B. Construction is permitted at the declarant’s leisure as it is feasible. Id. This makes sense because construction is different for every condominium depending on the materials needed, the size of the project, unexpected delays, etc. The referenced ten-year deadline is the deadline to convert convertible land into defined and identified units. N.H. Rev. Stat. Ann. § 356-B:23. It does not apply to the rest of the Act. This Court has misinterpreted the Act by concluding that indefinite construction is against the purpose of the Act. In its Order, the Court attempts to draw a comparison between LDV and the Shepherds Hill declarant by concluding that simply recording an amendment to a declaration for construction at some unknown time in the future is “clearly violative of the wording and spirit of the ten-year maximum set forth in RSA 356-B:23, III.” Order at 6. But the declarant in Shepherds Hill argued something very different from LDV’s argument. They argued that a declarant can define the use of convertible land at any time in the future. This is clearly against the express requirements of RSA 356-B:23, II. In contrast, LDV actually followed the statute by recording an instrument that described Building C. This is the most important and significant difference between the LDV and Shepherds Hill declarants. Nevertheless, the Court concluded that because LDV’s units were not “actually” constructed they were not created. The Court’s ruling fails to recognize the legally supported concept of “paper units.” The New Hampshire Supreme Court recognized the existence of paper units in Condominiums at Lilac Lane Unit Owners’ Ass’n v. Monument Garden, LLC. 170 N.H. 124 (2017) (“Lilac Lane”). While interpreting New Hampshire’s Condominium Act, the court explained that units depicted on the Declarant’s plans and recorded with the Registry of Deeds are “units” under the New Hampshire Condominium Act even if they are not yet built. Id. at 131. In Lilac Lane, the declarant was seeking to build the unbuilt units that were created in 2010, along with the condominium. Id. at 130-131. The court concluded that the units had been in existence since 2010. Id. at 131. This led the court to hold that a condominium can be created prior to construction of all units and that the unbuilt units are still units under the Act. Id. Although the Lilac Lane case addressed a phased development, not convertible land, the court’s holding that unbuilt units are still units under the Act affirms that actual construction is not required for units to exist under New Hampshire’s Condominium Act. This Court misapprehended the law by concluding that actual construction, or substantial construction, is required for a unit to exist under the Act. In summary, this Court’s order granting the Association’s Motion for Summary Judgment misapprehended the facts and law applicable to this case. LDV respectfully requests that this Court reconsider its order and grant LDV’s motion for summary judgment. WHEREFORE, LDV requests this Honorable Court to: A. Reconsider its January 26, 2023 Order and grant LDV’s Motion for Summary Judgment; and B. For such other and further relief as is deemed just and appropriate. Respectfully submitted, LITTLE DEER VALLEY, LLC By their attorneys. ORR & RENO, P.A. Dated: February 6, 2023 By:/s/ Meredith Farrell Goldstein James F. Laboe (N.H. Bar No. 14571) Meredith Farrell Goldstein (N.H. Bar No. 271584) 45 South Main Street P.O. Box 3550 Concord, New Hampshire Telephone: (603) 224-2381

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing has on this 6th day of February 2023 been

provided to all parties and/or counsel via the Court’s electronic filing system.

Dated: February 6, 2023 By:/s/ Meredith Farrell Goldstein

Meredith Farrell Goldstein, Esq.