State of New Hampshire v. Shane M. Beattie & a.

S
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                  THE SUPREME COURT OF NEW HAMPSHIRE

                            ___________________________

Coos
No. 2019-0460


                        THE STATE OF NEW HAMPSHIRE

                                         v.

                             SHANE M. BEATTIE & a.

                             Argued: May 13, 2020
                       Opinion Issued: November 19, 2020

      Gordon J. MacDonald, attorney general (Allison B. Greenstein, assistant
attorney general, on the brief and orally), for the State.


      Waystack Frizzell, Trial Lawyers, of Colebrook (Jonathan S. Frizzell and
Sandra L. Cabrera on the brief, and Mr. Frizzell orally), for the defendants.

       BASSETT, J. The defendants, Shane and Trina Beattie, appeal an order
of the Superior Court (MacLeod, J.) dismissing, with prejudice, their
preliminary objection challenging the State’s taking of 0.93 acres of their land
in fee simple, as well as permanent and temporary easements. The Beatties
argue that the trial court erred when, in dismissing their preliminary objection,
which challenged the necessity and net-public benefit of the taking, the trial
court applied the fraud or gross mistake standard of review set forth in RSA
chapter 230 rather than a de novo standard pursuant to RSA chapter 498-A.
See RSA 230:14, :19 (2009 & Supp. 2019); RSA 498-A:1, :9-b (2010). The
State counters that the trial court did not err because RSA chapter 230, not
RSA chapter 498-A, governs the outcome of this case. We agree with the
Beatties, and reverse and remand.

       The pertinent facts are as follows. In November 2013, the Governor and
Executive Council appointed a three-person commission to determine whether
there was occasion for the laying out or alteration of New Hampshire Route 2 in
Lancaster. See RSA 230:14. The proposed project contemplated the
replacement of the existing bridge spanning the Connecticut River between
Lancaster and Guildhall, Vermont. In February 2014, the New Hampshire
Department of Transportation sent a Notice of Hearing to the Beatties because
the proposed project might require acquisition of their property, or it might be
in close proximity to their property. The notice informed the Beatties that the
commission would hold a public hearing on the proposed project in March
2014. The Beatties did not attend the hearing. In April 2014, the commission
issued its report determining that there was occasion for the project.

       In July 2018, the State offered to purchase those portions of the Beatties’
land that it considered necessary for completion of the project. The Beatties
declined the State’s offer, and, in September 2018, the State filed a declaration
of taking with the New Hampshire Board of Tax and Land Appeals (BTLA). The
declaration identified a 0.93 acre portion of the Beatties’ land that the State
intended to take in fee simple, an additional 9,506 square foot area over which
the State intended to take a permanent easement to accommodate the slopes
and embankments necessary to support the highway, and an additional 8,543
square foot area over which the State intended to take a temporary easement
for use while constructing the project.

       In response to the State’s declaration of taking, the Beatties filed an
answer and preliminary objection with the BTLA. See RSA 498-A:9-a, I (2010)
(providing that “any condemnee may file a motion in the office of the board
raising preliminary objections to [a] declaration of taking”). The Beatties
challenged the necessity and net-public benefit of the taking, and, accordingly,
requested that their preliminary objection be transferred to the superior court.
See RSA 498-A:9-b, I. Following the transfer, in January 2019, the State filed
a response and a motion to dismiss the Beatties’ preliminary objection. Citing
RSA 230:14 and :19, the State argued that, because the Beatties had failed to
allege fraud or gross mistake on the part of the commission, their preliminary
objection must be dismissed as a matter of law.

      In its July 2019 order granting the State’s motion to dismiss, the trial
court ruled that, although RSA chapter 498-A is the comprehensive eminent
domain procedure act, courts must look to the enabling statute — in this case,
RSA chapter 230 — for the proper standard of review. Accordingly, the trial
court analyzed RSA 230:14 and :19, and determined that, in their preliminary
objection, the Beatties were required to allege fraud or gross mistake on the



                                        2
part of the commission. Because the Beatties did not do so, the trial court
found that they had “failed to state a claim upon which relief may be granted,”
and concluded that “their preliminary objection must therefore be dismissed.”
This appeal followed.

       “In reviewing the trial court’s grant of a motion to dismiss, our standard
of review is whether the allegations in the [non-moving party’s] pleadings are
reasonably susceptible of a construction that would permit recovery.” Plaisted
v. LaBrie, 

165 N.H. 194

, 195 (2013). “We assume that the [non-moving party’s]
pleadings are true and construe all reasonable inferences in the light most
favorable to [them].”

Id. “However, we need

not assume the truth of
statements in the [non-moving party’s] pleadings that are merely conclusions of
law.” Cluff-Landry v. Roman Catholic Bishop of Manchester, 

169 N.H. 670

,
673 (2017). “We then engage in a threshold inquiry that tests the facts in the
petition against the applicable law, and if the allegations constitute a basis for
legal relief, we must hold that it was improper to grant the motion to dismiss.”

Plaisted, 165 N.H. at 195

. “When, as here, the parties’ arguments require us to
engage in statutory interpretation, our review is de novo.” New England
Backflow v. Gagne, 

172 N.H. 655

, 661 (2019).

       “In matters of statutory interpretation, we are the final arbiter of the
intent of the legislature as expressed in the words of the statute considered as
a whole.” Petition of Carrier, 

165 N.H. 719

, 721 (2013). “We first look to the
language of the statute itself, and, if possible, construe that language according
to its plain and ordinary meaning.”

Id. “We interpret legislative

intent from the
statute as written and will not consider what the legislature might have said or
add language that the legislature did not see fit to include.”

Id. “The legislature is

not presumed to waste words or enact redundant provisions and
whenever possible, every word of a statute should be given effect.” Garand v.
Town of Exeter, 

159 N.H. 136

, 141 (2009) (quotation omitted). “We construe all
parts of a statute together to effectuate its overall purpose and avoid an absurd
or unjust result.” 

Carrier, 165 N.H. at 721

. “Moreover, we do not consider
words and phrases in isolation, but rather within the context of the statute as
a whole.”

Id. “This enables us

to better discern the legislature’s intent and to
interpret statutory language in light of the policy or purpose sought to be
advanced by the statutory scheme.”

Id. We begin our

analysis by setting forth the relevant statutory framework.
RSA 230:14, I, provides, in pertinent part, that the Governor may “appoint a
commission of 3 persons who, upon hearing, shall determine whether there is
occasion for the laying out or alteration of [certain highways] . . . as proposed
by the commissioner of transportation.” RSA 230:14, I. “If such a
determination is made by the commission, the commissioner may purchase
land or other property that is reasonably necessary for the construction,
reconstruction, or alteration and shall lay out the remainder of such highway



                                        3
or alteration.”

Id. “Any such land

or property which cannot be acquired by
agreement with the owner or owners thereof may be acquired in accordance
with RSA 498-A and all issues that are appealed relating to necessity, public
use, and net public benefit shall be determined in accordance with RSA
230:19.”

Id. In turn, RSA

230:19 provides, in pertinent part, that “there shall
be no appeal from [the commission’s] findings on the matter of occasion for the
laying out of the highway or alteration thereof in the absence of fraud or gross
mistake.” RSA 230:19.

       RSA chapter 498-A provides, in pertinent part, that “any condemnee may
file a motion in the office of the board raising preliminary objections to [a]
declaration of taking.” RSA 498-A:9-a, I. Under the statute, a “[p]reliminary
objection shall be limited to and shall be the exclusive method of challenging,”
among other things, “[t]he necessity, public use, and net-public benefit of the
taking.” RSA 498-A:9-a, I. “If a condemnee files a preliminary objection under
RSA 498-A:9-a, I(c) concerning necessity, public use, or net-public benefit, the
board shall transfer that preliminary objection to the superior court . . . .” RSA
498-A:9-b, I. “Upon receipt of the transfer from the board, the superior court
shall require a response from the condemnor and may conduct an evidentiary
hearing before it rules on the preliminary objection.” RSA 498-A:9-b, II. The
stated purpose of RSA chapter 498-A is “to provide a complete and exclusive
procedure to govern all condemnations of property for public uses including
the review of necessity, public uses, and net-public benefit, and the
assessment of damages therefor.” RSA 498-A:1, I. “It is not intended to
enlarge or diminish the power of condemnation given by law to any condemnor
and it is not intended to enlarge or diminish the rights given by law to any
condemnee to challenge the necessity, public uses, and net-public benefit for
any condemnation.”

Id. The statute expressly

repeals all inconsistent acts or
portions of acts. RSA 498-A:29 (2010).

       On appeal, the Beatties argue that the trial court erred by applying the
fraud or gross mistake standard of review set forth in RSA chapter 230 because
RSA chapter 498-A “supersedes” RSA chapter 230 on procedural matters, and,
therefore, exclusively governs such matters. See RSA 498-A:1, :29. They
contend that a standard of review is a matter of procedural law, and that,
under RSA chapter 498-A, the applicable standard is de novo. The State
counters that “in order to successfully state a claim under RSA 498-A:9-a, I(c),
the Beatties must allege that the [c]ommission’s decision finding occasion for
the [p]roject as proposed was fraudulent or the result of a gross mistake.” “In
the absence of such an allegation,” the State contends, “any appeal from the
findings of the [c]ommission is barred by RSA 230:19.” We agree with the
Beatties.

      The stated purpose of RSA chapter 498-A is “to provide a complete and
exclusive procedure to govern all condemnations of property for public uses



                                        4
including the review of necessity, public uses, and net-public benefit, and the
assessment of damages therefor.” RSA 498-A:1, I (emphases added). Because
“[s]tandards of review are procedural in nature,” Town of Hinsdale v. Town of
Chesterfield, 

153 N.H. 70

, 74 (2005) (citing Alison H. v. Byard, 

163 F.3d 2

, 4
(1st Cir. 1998)); see also Merrill v. City of Manchester, 

124 N.H. 8

, 15 (1983)
(explaining that the standard of review is a procedural safeguard necessary to
protect landowners’ fundamental rights), as a matter of procedure, the
standard of review is governed by RSA chapter 498-A, not by RSA chapter 230.
RSA 498-A:1, I.

       Further, we agree with the Beatties that de novo is the appropriate
standard of review under RSA chapter 498-A for the trial court’s review of
preliminary objections, such as the Beatties’, that challenge necessity, public
uses, or net-public benefit. In V.S.H. Realty, we held that a landowner is
“entitled to a trial de novo before the superior court on the issues of occasion
and necessity.” V.S.H. Realty, Inc. v. City of Manchester, 

123 N.H. 505

, 508
(1983). Additionally, in Merrill, we observed that private property ownership
rights are fundamental rights under the New Hampshire Constitution, and,
therefore, we held that “any party aggrieved by the governing body’s findings
with respect to blight, necessity, and public purpose is entitled to a de novo
trial before the superior court.” 

Merrill, 124 N.H. at 14-15

(explaining that it
would violate the equal protection clause of the State Constitution to provide
fewer procedural safeguards to landowners whose property is to be taken for
municipal redevelopment use, as opposed to highway use).

       Although both V.S.H. Realty and Merrill dealt with municipal takings, we
can discern no reason why a less rigorous standard of review should apply to
takings by the State. We cannot ignore the fact that the legislature provided an
exclusive procedure to govern all condemnations. See RSA 498-A:1, I. If we
were to apply different standards of review to different eminent domain
proceedings based solely on the arbitrary distinction of which governmental
entity is involved in the taking, it would not only flout the legislature’s intent,
but, as in Merrill, it would likely violate the equal protection guarantees of our
State Constitution. See 

Merrill, 124 N.H. at 14-15

; State v. Smagula, 

117 N.H. 663

, 666 (1977) (observing that “[i]t is a basic principle of statutory
construction that a legislative enactment will be construed to avoid conflict
with constitutional rights wherever reasonably possible”). Given that private
property ownership rights are fundamental rights under the New Hampshire
Constitution, “we see no compelling governmental interest in providing fewer
procedural safeguards to landowners merely because their property is sought
for [state highway] use . . . rather than for municipal highway use.” 

Merrill, 124 N.H. at 14-15

. Accordingly, we hold that, when a preliminary objection
challenging necessity, public uses, or net-public benefit is transferred to the
superior court pursuant to RSA 498-A:9-b, the trial court’s review is de novo.




                                        5
       We are not persuaded by the State’s arguments to the contrary. First,
the State argues that State v. Korean Methodist Church of N.H., 

157 N.H. 254

(2008), City of Keene v. Armento, 

139 N.H. 228

(1994), and State v. Greene, No.
2004-0185, 

2004 WL 7318752

(N.H. Dec. 1, 2004), each support the trial
court’s decision to apply the fraud or gross mistake standard of review that is
set forth in RSA chapter 230. We disagree.

       As the trial court correctly noted, Korean Methodist is inapposite. In that
case, citing preservation grounds, we expressly declined to consider whether
the trial court erred when it required the condemnee to prove fraud or gross
mistake in order to prevail on its preliminary objection. Korean 

Methodist, 157 N.H. at 257

. Accordingly, because we did not reach the issue that is now
before us, Korean Methodist is of no help to the State.

       Nor are we persuaded that Armento and Greene support the trial court’s
decision. In Armento, we were faced with the question of whether RSA chapter
498-A, rather than RSA chapter 423, controlled the eminent domain
proceedings involving the taking of land for an airport. 

Armento, 139 N.H. at 230

. The crux of the dispute was whether the condemnees were entitled to
have the county commissioners decide the issue of necessity, given that RSA
chapter 498-A, unlike RSA chapter 423, did not provide that the authority for
such a taking was “conditioned on a determination of necessity by the county
commissioners.”

Id. at 230-32.

We concluded that the condemnees were
entitled to have necessity determined by the county commissioners, as set forth
in RSA chapter 423.

Id. at 232.

In reaching that conclusion, we observed that
“RSA chapter 498-A is a comprehensive eminent domain procedure act, not a
comprehensive eminent domain enabling statute,” and that the pre-existing
enabling statutes “contain[ed] both a grant of power and the procedure to be
followed when exercising that power.”

Id. at 231.

Therefore, we reasoned, we
“must look to [the enabling] statutes for the proper procedures in situations
where RSA chapter 498-A does not exclusively control procedure, particularly
where additional procedures are necessary to establish the power to condemn
or preserve the condemnee’s right to challenge necessity.”

Id. In other words,

in Armento, we held that under the version of RSA chapter 498-A in place at
that time, it was appropriate under certain circumstances to look to the
enabling statute to determine the applicable procedure. See

id. However, in 1995,

the year following our decision in Armento, the
legislature amended RSA chapter 498-A by adding the language “including the
review of necessity, public purposes, and net-public benefit” to RSA 498-A:1,
thereby stating explicitly that “[i]t is the intent by the enactment of this chapter
to provide a complete and exclusive procedure to govern all condemnations of
property for public purposes including the review of necessity, public purposes,
and net-public benefit, and the assessment of damages therefor.” Laws 1995,
194:2 (emphasis added). In so doing, the legislature clearly established that



                                         6
RSA chapter 498-A is intended to completely and exclusively govern the
procedure for such reviews. See

id. Further, the legislature

also enacted a new
section, RSA 498-A:9-b, which established the procedure by which preliminary
objections raising issues of necessity, public use, or net-public benefit are
transferred to, and reviewed by, the superior court. See Laws 1995, 194:4.
Accordingly, because the procedure for the superior court’s review of such
preliminary objections is now completely and exclusively governed by RSA
chapter 498-A, it is no longer appropriate to look to the enabling statute to
determine the applicable procedure, and, therefore, the State’s, and the trial
court’s, reliance on Armento is misplaced.

      In Greene, the condemnees filed preliminary objections to the State’s
taking of their land for a highway project, and we affirmed the trial court’s
decision to grant the State’s motion for summary judgment. Greene, No. 2004-
0185, 

2004 WL 7318752

, at *1. However, in Greene, we relied upon
Armento for the proposition that the legislature effectively foreclosed in 1995
when it amended RSA chapter 498-A. Accordingly, Greene provides little
support for the State’s position or the trial court’s decision. In addition,
because Greene is an unpublished order, it is non-precedential. See Sup. Ct.
R. 12-D(3).

      Next, the State argues that our interpretation of RSA chapter 498-A
would impermissibly enlarge the rights of a condemnee to challenge necessity
or net-public benefit in contravention of RSA 498-A:1. We disagree. As we
have observed, a standard of review is a matter of procedural, not substantive,
law. See Town of 

Hinsdale, 153 N.H. at 74

. Accordingly, because a standard of
review “affects only the process of enforcing litigants’ rights and not the rights
themselves,” and “does not in itself create any substantive right,” Freund v.
Nycomed Amersham, 

347 F.3d 752

, 761-62 (9th Cir. 2003) (quotation omitted),
we conclude that the application of a de novo standard of review under RSA
chapter 498-A does not impermissibly enlarge the Beatties’ substantive rights
in contravention of RSA 498-A:1.

      Additionally, the State argues that our interpretation would
impermissibly render the fraud or gross mistake review provisions set forth in
RSA 230:14 and :19 virtual nullities. Although the State is correct that,
whenever possible, “every word of a statute should be given effect,” 

Garand, 159 N.H. at 141

(quotation omitted), and that “[w]e will not construe a statute
in a way that would render it a virtual nullity,” Wolfgram v. N.H. Dep’t of
Safety, 

169 N.H. 32

, 36 (2016) (quotation omitted), it is equally true that
canons of statutory interpretation are “‘only an aid to the ascertainment of the
true meaning of the statute,’” and are “‘neither final nor exclusive.’” 2A
Norman J. Singer & J.D. Shambie Singer, Statutes and Statutory Construction
§ 47.22, at 401-02 (7th rev. ed. 2014) (quoting Helvering v. Stockholms &c.
Bank, 

293 U.S. 84

, 89 (1934)); see also State v. Small, 

99 N.H. 349

, 351 (1955)



                                        7
(observing that a canon of statutory interpretation is “not a judicial ukase in
the ascertainment of legislative intention”); Lockhart v. United States, 136 S.
Ct. 958, 963 (2016) (observing that canons of statutory interpretation are “not
an absolute and can assuredly be overcome by other indicia of meaning”
(quotation omitted)). Here, we are not persuaded that the cited canons of
statutory interpretation compel us to adopt the State’s construction. Indeed,
as we explained above, the State’s construction would not only frustrate the
legislature’s express intent that RSA chapter 498-A completely and exclusively
control “the review of necessity, public uses, and net-public benefit,” RSA 498-
A:1, but it could also violate the equal protection guarantees of our State
Constitution. Further, we are not disposed to adopt the interpretation
advanced by the State that would, in effect, give an appointed, three-person
commission nearly unreviewable power to deprive landowners of their
fundamental property rights. Such an outcome would be unjust if not
unconstitutional. See N.H. CONST. pt. I, art. 12; 

Merrill, 124 N.H. at 14-15

;

Armento, 139 N.H. at 231-33

(recognizing a condemnee’s “right to challenge
necessity”); 

Carrier, 165 N.H. at 721

(observing that, when construing statutes,
we avoid producing an “unjust result”).

       Finally, we note that the State argues that its construction is supported
by the legislative histories of the statutes. However, because we have not
found ambiguity in the applicable provisions, we have no occasion to look to
legislative history as an aid to statutory construction. See Appeal of Pub. Serv.
Co. of N.H., 

125 N.H. 46

, 55-56 (1984) (observing that the lack of ambiguity in
a statute “rules out the need to rely on legislative history in its interpretation”).
Of course, if the legislature disagrees with our interpretation of RSA chapter
498-A and RSA chapter 230, “it is free, subject to constitutional limitations, to
amend the statute[s].” State v. Dor, 

165 N.H. 198

, 205-06 (2013). Given our
decision, we need not address the parties’ remaining arguments.

                                                    Reversed and remanded.

      HANTZ MARCONI and DONOVAN, JJ., concurred.




                                          8

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