Baldwin & Callen,
PLLC

Court Rulings

Maude Anderson et al v. Motorsport Holdings, LLC, opinion issued May 30, 2007

Attorney Callen represented the New Hampshire Association of Conservation Commissions (NHACC), as amicus, in this successful case involving a proposed private 3.1 mile automobile race track and motorsports country club, that Motorsports Holdings, LLC wishes to build on the shoulder of Mount Whittier, in the Town of Tamworth. The club would also build garages, a clubhouse, a hotel, and a restaurant for its guests. The access road and race track would cross and require fill in streams and wetlands in 17 locations. Although applicant received State and Federal wetlands permits, it refused to apply to the Town for a similar permit required under the Tamworth Wetlands Conservation Ordinance, claiming that it was exempt from that requirement because it had State and Federal permits. Abutters sued and won a judgement in Superior Court holding that Motorsports was subject to the local Ordinance; and Motorsports appealed to the Supreme Court. The Supreme Court held, much to the relief of NHACC and Towns all over the State, that the local Ordinance is not pre-empted, and despite being shorter, might be applied more stringently and more protectively than the more comprehensive Federal permitting process. All other grounds for appeal were also rejected, leaving a severe setback for Motorsports, and a clear victory for local control.

Ossipee Bluffs Association v. Donald R. Lee, Sr., Carroll County Superior Court, Docket No. 04-E-0077 (9/27/06)

Attorney Callen represented Ossipee Bluffs Association (comprised of 107 households which jointly own a beach and mooring field in Bradford Cove, on Lake Ossipee). The action sought injunctive relief against defendant who, in 1988, had constructed an unpermitted breakwater structure, approximately 90 feet long, from concrete blocks, gravel, rock and sand extending into the lake from one of his lots. Defendant was in violation of a DES Order to remove the breakwater, but refused to remove it. Plaintiffs were able to prove, through aerial photography, and expert testimony, that over several years, the breakwater caused the formation of a sandbar and deposited large amounts of sand and organic debris into Bradford Cove, literally choking the cove. The Superior Court issued an order granting exactly what Plaintiffs sought: Defendant must hire a qualified professional engineer, at his sole expense, to apply to DES for permits to implement a plan to remove the entire sandbar.

Riss v. Town of Madison, No. 2004-0323 (Oct. 20, 2005)

Attorney Baldwin represented the petitioner before a three justice panel arguing that a portion of property owned by the petitioner was a private way and not a public road. The Town argued that the road became a highway through prescription. The panel disagreed and upheld the lower court's findings that the Town had the burden to demonstrate that the contested property was used by the public continuously for twenty years and that the Town failed to meet this burden. Read more.

Sanford v. Town of Wolfeboro, 152 N.H. 1 (2005)

The plaintiff challenged the extent of a flowage easement owned by the Town of Wolfeboro in connection with operation of its dam controlling water levels in Lake Wentworth. Attorney Baldwin represented the interests of the intervener, the Lake Wentworth Association, supporting the Town's position. The plaintiff urged the Court to assess the scope of the easement by looking at its actual extent, rather than the intent of the Town in using the easement. The Court disagreed, finding that since no use can ever be exactly duplicated, the flow of water over the plaintiff's land did not have to be consistent year after year to establish the extent of the easement. The Court upheld the Town's use of the easement, stating that the Town, as owner of the dam, has the right to maintain water levels as high as it deemed necessary to accomplish its purpose in controlling the dam. Read more.

New Hampshire Motor Transport Association
v. State of New Hampshire, 150 N.H. 762 (2004)

In 2004, Attorney Callen filed an amicus brief in the Supreme Court on behalf of the New Hampshire Railroad Revitalization Association. The State sought to use some of the highway funds it collects from taxes on motor fuels, to fund planning and construction of the Nashua Commuter Rail Project (extending the commuter rail line from Lowell Massachusetts to Nashua). The expenditures were challenged by the NH Motor Transport Association as violating a provision of the NH Constitution that limits the expenditure of such funds to the support and maintenance ... of public highways within the State... We urged the Court to accept that investment in light rail was a farsighted method of maintaining the public highway, as it would relieve congestion on Route 93, and thereby prolong its useful life. It was a long shot, and predictably unsuccessful. Read more.

Town of Lyndeborough v. Boisvert, 150 N.H. 814 (2004).

Attorney Callen represented over 30 neighbors and abutters opposed to the opening of an ATV park on private land. The landowner had refused to submit to local land use controls, including site plan review, although his proposal was covered by the local regulation. He then enrolled his land in the State ATV Trail program, and claimed that doing so allowed him to host unlimited numbers of ATV's at unlimited times on his property, and to be exempted from any local regulation. The Town challenged that assertion in Superior Court, and the neighbors intervened on their side. After a defeat in Superior Court, the town appealed to the Supreme Court, and won, establishing that local land use control is not pre-empted by the State laws regulating ATV trails. Read more.

June Balke, et al. v. City of Manchester, 150 N.H. 69 (2003)

Attorney Callen filed suit against the City of Manchester and the State on behalf of 19 residents of Manchester, Auburn, Bedford, Goffstown, Hooksett and Londonderry who drink public water supplied by the Manchester Water Works. Plaintiffs claimed that when Manchester began to add fluoride to the public drinking water supply after a referendum held only in Manchester, it violated their statutory right to vote on whether their water would be fluoridated. The Superior Court issued an order requiring Manchester to cease fluoridation by April 1, 2004 unless the surrounding towns first held and passed fluoridation referenda, or the State statute was amended. Manchester (and NH) appealed the decision to the Supreme Court and on September 30, 2003, the Supreme Court ruled in our favor, but extended the deadline for cessation of fluoridation without representation until June 30, 2005. As an update to this case, the Legislature amended the fluoridation referendum statute at Manchester's request, and the NH Secretary of State conducted a remedial referendum in September 2004, again excluding the voters of Auburn and Derry, based on Manchester's interpretation of the amended statute. We represented a number of Manchester, Auburn and Derry citizens in a second suit claiming that the voting rights of the Auburn and Derry residents had again been violated. On November 10, 2005 the Superior Court issued a split decision, holding that the right to vote on fluoridation held by the Auburn residents had again been violated; but the Derry residents had no such rights under the amended statute. Read more.

Manchester School District v. Kimberli M., and Pittsfield School District, U.S. First Circuit Court of Appeals (2002)

Attorney Callen represented the Pittsfield School District, home to the Brock Home, a home for developmentally disabled children. Kimberli M., a then 14 year old severely disabled child, had been a resident in the home since the age of seven months. After her birth in Manchester, she was placed there by her parents and the NHDHHS. Her parents subsequently moved out of State and have no contact with her. The Manchester School District has been paying for Kimberli free appropriate public education guaranteed to her by both federal and state law. In this case, they sought to end their financial obligation. We were successful in preventing the burden from shifting to Pittsfield, as doing so would almost guarantee that no Town would permit homes for disabled children needing special education to open or remain within their borders. Read more.

Malnati v. State of New Hampshire, 148 NH 94 (2002).

In 2002, Attorney Callen was asked by the Rails- to-Trails Conservancy to file an amicus brief on their behalf in a Supreme Court appeal by landowners who objected to the State's statutory right to take, for fair compensation, old Railroad rights of way across their land, and convert the old rail beds into public access recreational trails. We filed for the Conservancy, on the side of the State, arguing the constitutionality and desirability of preserving the old railroad rights of way as 21st Century travel and recreational trails. The Supreme Court agreed with the statute, the State, and the Rails-to Trails Conservancy, and upheld the preservation of the trails for the long term benefit of the public. (The owners of land crossed by the old rail beds are entitled to, and paid, for the land.) Read more.

Heron Cove Ass'n v. DVMD Holdings, Inc., 146 N.H. 211 (2001).

The Planning Board and Zoning Board of Adjustment approved defendant's site plan for the construction of an office complex. The Boards concluded that defendant's land was exempt from certain setback requirements set forth in the Town's Wetland and Watershed Protection District and Environmental Overlay. Portions of the proposed complex would have been within 200' of an adjacent brook and wetland, in violation of the ordinance. The Plaintiffs, represented by Attorney Baldwin, appealed the Town boards decisions to the Superior Court which reversed both the Planning Board and ZBA. The Supreme Court affirmed the Superior Court's ruling. Read more.

Phetteplace v. Lyme, 144 N.H. 621 (2000)

Plaintiffs filed an appeal for a property tax abatement in Superior Court. NH RSA 76:17 requires that appeals be filed no later than September 1 following notice of tax. The Superior Court received the appeal on September 2 and dismissed the appeal as untimely. The Plaintiffs argued that the dismissal was unfair because if they had filed their appeal with the BTLA instead of the Superior Court, it would have been timely because the BTLA would have used the postmark date to determine if the appeal was timely filed. The NH Supreme Court found that the statutory language is unambiguous and that the plaintiff failed to timely file their appeal, because it was not received by the Court by September 1. Read more.

Caspersen v. Lyme, 139 N.H. 637 (1995)

Attorney Baldwin represented the Town of Lyme to defend the Town's zoning ordinance which required minimum lot sizes of fifty acres in a Mountain and Forest zoning district. Attorney Callen filed an amicus brief on behalf of the American Planning Association, in support of Lyme. The Court affirmed the Superior Court's decision upholding the ordinance. In its decision, the Court rejected the plaintiffs argument that the Town did not properly enact the zoning ordinance, holding instead that the town complied with the zoning enabling act in adopting the ordinance. The plaintiffs also argued that the ordinance violated their substantive due process and equal protection rights. The Court disagreed, finding that the minimum lot size requirement was rationally related to the Town's goals of encouraging forestry and timber harvesting in the district zoned for those purposes.

Grey Rocks Land Trust v. Hebron, 136 N.H. 239 (1992)

The Plaintiffs, represented by Attorney Baldwin, appealed a decision of the Superior Court upholding a use variance granted by the Town of Hebron Zoning Board of Adjustment (ZBA) to the Newfound Lake Marina. The marina operated as a pre-existing nonconforming use along the Cockermouth River and sought to expand its operations by constructing a boat storage building. The plaintiffs argued that the marina failed to establish that it would suffer unnecessary hardship if the variance were denied. The Court agreed with the plaintiffs on this point and reversed the lower Court's decision. In doing so, the Court affirmed the principle that the party seeking the variance bears the burden of establishing each of the requirements for a variance. In further support of its decision, the Court found that the boat storage building would have an impact on the neighborhood that was substantially different from its existing nonconforming use.

Victorian Realty Group v. Nashua, 130 N.H. 60 (1987)

The Planning Board denied Plaintiff's request to relocate a boundary line between two contiguous lots in order to convert a carriage house on one of the lots and a home on the other lot to 3 and 4 unit apartment dwellings in Nashua's Historic District. The Nashua Historic District Commission expressed concern that the plan would have a detrimental effect on the character of the residential neighborhood and that it would separate the carriage house from the main building on the site. Attorney Baldwin represented the Intervener, supporting the town's position. The issue on appeal was whether the Planning Board had the authority to deny the Plaintiff's application for lot line relocation based on the historical character and significance of a property located in an historic district. The Court held that the Planning Board may properly consider recommendations of the Historic District Commission, and that the Planning Board had sufficient evidence to deny the Plaintiff's application.

Dalzell v. Harlow, 129 N.H. 43 (1986)

Back lot owners without shore frontage sought a declaration of rights on property subject to a condominium declaration to use a dock located on the shore front lots of the condominium complex. The trial court found the phrase in question to be unambiguous, excluded parol evidence, and determined that the back lot owners had the right to moor a boat on the dock. Attorney Baldwin appealed on behalf of defendants. The NH Supreme Court reversed the lower court's ruling, holding that the language was ambiguous and that the defendants should have been allowed to introduce evidence that would bear on the meaning of the phrase in question.