St. Germain v. Town of Barnstead, Doc. No. 211-2000-E-012 (Belknap Super. Ct., February 7, 2000) (Perkins, J.)

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No. 00-E-0012


The petitioner, Diane St. Germain, seeks to enjoin the consideration of the repeal of a zoning ordinance at a planning board hearing scheduled for February 5, 2000 and invalidation of action taken by the respondent, the Town of Barnstead, during a planning board meeting because of a failure to comply with New Hampshire "Right to Know" laws. See RSA chapter 91-A. The respondent has filed an answer and a motion to dismiss. An expedited hearing pursuant to RSA 91-A:7 was conducted on February 4, 2000. At the hearing the parties conceded that an injunction was not necessary because the Court could invalidate the board's action after the February 5 hearing. As such, the Court only considers the request to invalidate the planning board's action in this matter. After testing the facts contained in the petition against applicable law, the Court finds that the petitioner's requests are not reasonably susceptible of a construction that would permit recovery. Accordingly, the respondent's motion to dismiss is GRANTED.

The facts in this case are undisputed. Last year, the petitioner worked on a committee to address sewage and sludge issues in the town. This work culminated in a warrant article being placed on the March 1999 ballot. The voters of the town approved of this article (hereafter "article 11") by ballot at the March 1999 town meeting. The petitioner later attended the January 6, 2000 planning board meeting to see if the planning board would address article 11. Article 11 [2] was not discussed at this meeting. The minutes of the January 6 meeting reflect that the work session was discussed and planned for January 13. In the meantime, on January 5, 2000, the planning board published and posted notice of a January 22, 2000 public hearing which listed several items to be discussed but contained no mention of article 11 or the possibility of repealing it.

In between its meeting and the scheduled hearing, the planning board conducted a work session on January 13. It is undisputed that the work session was open to the public. No minutes were taken at the January 13 work session. However, the respondent admits that it was discovered at this work session that the notice for the January 22 public hearing had failed to list the article 11 issue. The planning board attempted to issue a revised notice for the hearing. The revised notice was not published until January 19; a mere three days before the planned hearing.

At the January 22 hearing, the petitioner addressed the planning board. She presented a letter to the board stating that the hearing was in violation of RSA 675 because the notice failed to notice consideration of the repeal of article 11. The planning board agreed to set a new date of February 5 to review the items missing in the previous notice. At the end of the January 22 meeting, it was again announced that another public hearing would be held on February 5 regarding this issue. On January 25, the Concord Monitor ran the announcement of the February 5 public hearing. The issue of repealing article 11 was specifically listed as one of the subjects to be discussed at this hearing.

The petitioner asserts that the board failed to mention its intention to propose the repeal of Article 11 of the town zoning ordinance at its January 6, 2000 meeting. She also argues that the planning board failed to properly notice or to keep minutes of its January 13 work session. Because of these deficiencies, she argues that the town's subsequent attempts to property notice the [3] issue for a February 5 hearing were insufficient. She asserts that the voters of the town have a right to a record of the planning board's discussions and decisions on this matter. In making this argument she relies on RSA 91-A:1 regarding the importance of openness in the conduct of public business and stating that the purpose of RSA chapter 91-A is ensure, to the greatest extent possible, that the public has access to records of meetings so that there may be accountability to the townspeople.

The respondent argues that it provided notice of the work session in its minutes of the January 6 meeting. The respondent concedes however that this type of notice may be deemed to constitute technical noncompliance with RSA 91-A:2. The respondent also notes that it does not routinely keep minutes of work sessions. The respondent argues however that to the extent that it did not properly notice the issue of repealing article 11 at the January 22 hearing, it corrected this problem by properly noticing the matter for a February 5 hearing. It also argues that its mistake was inadvertent and that there was nothing secretive about how it went about trying to address the issues surrounding article 11.

In ruling on the defendants' motion to dismiss, the court must determine whether the plaintiff's allegations are "'reasonably susceptible of a construction that would permit recovery.'" Bohan v. Ritzo, 141 N.H. 210, 212 (1995), (quoting Wenners v. Great State Beverages, 140 N.H. 100, 102 (1995), cert. denied, 516 U.S. 1119 (1996) (quotations omitted). This determination requires the court to test the facts contained in the petitioner against applicable law. Jay Edwards, Inc. v. Baker, 130 N.H. 41, 44 (1987). In rendering such a determination, the court "assume[s] the truth of all well-pleaded facts alleged by the plaintiff[s] and construe[s] all inferences 'in the light most favorable to the plaintiff.'" Bohan, 141 N.H. at 213, (quoting Wenners, 140 N.H. at 102). "The plaintiff must, however, plead sufficient facts to form a basis for the cause of action [4] asserted." Mt. Springs Water Co. v. Mt. Lakes Vill. Dist., 126 N.H. 199, 201 (1985). A court "need not accept statements in the complaint which are merely conclusions of law." Id.

RSA 91-A:1 is the preamble to RSA chapter 91-A. It states that "[o]peness in the conduct of public business is essential to a democratic society." Thus, the purpose of RSA chapter 91-A " to ensure both the greatest possible public access to the actions, discussion and records of all public bodies, and their accountability to the people." Id. Public proceedings are defined as "...the transaction of any functions affecting any or all citizens of the state by...any board....of any ." RSA 91-A:1-a. RSA 91-A:2, II further requires, in pertinent part, that "[m]inutes of all such meetings including...a brief description of the subject matter discussed and final decisions, shall be promptly recorded and open to the public for inspection... ." Finally, RSA 91-A:8 states that "The court may invalidate an action of a public body or agency taken at a meeting held in violation of the provisions of this chapter, if the circumstances justify such invalidation." RSA 91-A:8, III (emphasis added).

In this case, the respondent concedes that the January 13 work session was a public meeting and that as such, minutes should have been taken. Nor would the Court find that the work session should be anything but a public session. The work session was clearly a public proceeding as defined under RSA 91-A:1-a. For whatever reason however, no minutes were taken. The Court agrees with the respondent in finding that this is merely a technical violation in this case however. The Court finds that there are simply no facts or circumstances here that would justify invalidating the board's actions. Regardless of whether the petitioner was present at the January 13 work session, she was able to postpone the public hearing on article 11 until it could be properly noticed. When informed of the improper notice on January 22, the board promptly agreed that a notice problem had occurred and it rectified the situation. It would be inappropriate to invalidate [5] the planning board's action on the facts presented here. A public hearing on the matter has been accomplished. The townspeople will have ample opportunity to address the planning board's reasons for proposing the repeal of this article if they so desire at the hearing.

The Court would like to caution the respondent however. RSA chapter 91-A is clear. All public meetings should be properly noticed and proper minutes should be kept. The planning board had enough time to rectify the situation in this case. Thus, there were insufficient facts to justify invalidating the board's actions. The Court reminds the respondent however that it should pay closer attention to both the letter and the spirit of the RSA chapter 91-A in the future.

For the foregoing reasons, the respondent's motion to dismiss is GRANTED.


Date: February 7, 2000    /s/