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Everett Ashton, Inc. v. City of Concord

Supreme Court of New Hampshire

April 29, 2016

EVERETT ASHTON, INC.
v.
CITY OF CONCORD

Argued: February 10, 2016

Rockingham

Bianco Professional Association, of Concord (James J. Bianco, Jr. and Thomas P. Colantuono on the brief, and Mr. Bianco, Jr. orally), for the plaintiff.

City Solicitor's Office, of Concord (Danielle L. Pacik, deputy city solicitor, on the brief and orally), for the defendant.

New Hampshire Municipal Association, of Concord (Stephen C. Buckley and Margaret M.L. Byrnes on the brief), as amicus curiae.

Smith-Weiss Shepard, P.C., of Nashua (Robert M. Shepard and Tanya L. Spony on the brief), for New Hampshire Community Loan Fund, as amicus curiae.

HICKS, J.

The defendant, the City of Concord (City), appeals an order of the Superior Court (Delker, J.) requiring it to issue demolition permits to the plaintiff, Everett Ashton, Inc. (Everett Ashton), so that Everett Ashton may remove three abandoned, valueless manufactured homes from its manufactured housing park. The court also ruled that the City could not place a lien on Everett Ashton's park for the unpaid water bills of the former residents of the abandoned homes, and that, by withholding demolition permits, the City engaged in a regulatory taking, entitling Everett Ashton to compensation and attorney's fees. We affirm the court's ruling that the City must issue the demolition permits, reverse its rulings concerning the unpaid bills and the regulatory taking, vacate the award of attorney's fees, and remand.

The trial court recites in its order, or the record supports, the following facts. Everett Ashton owns a manufactured housing park in Concord. The park is divided into lots that individuals may rent for their manufactured homes. Tenants of the park own the manufactured homes, and they alone pay property taxes on the homes. See RSA 73:16-a (2012). Each lot receives water and sewer services from the City. Everett Ashton installed utility meters on the homes in its park. The City bills the tenants directly for water and sewer services.

After neglecting to pay rent for a number of months, three tenants abandoned their manufactured homes. Everett Ashton obtained writs of possession, and the City condemned the homes. Because the homes had no value, even as scrap metal, Everett Ashton sought to remove them from its park.

Everett Ashton applied for demolition permits from the City. The City refused to issue the permits because of outstanding property taxes owed on the homes. Everett Ashton requested that the City abate the taxes. The City partially granted that request, abating the taxes on two of the homes for the 2013 tax year. Everett Ashton asked the City to reconsider its refusal to fully abate the taxes on the grounds that it was not obligated to pay them. The City declined to issue the demolition permits until the taxes were paid. Everett Ashton alleges that, in a telephone conversation, a representative of the City told Everett Ashton's president that "the homes could just sit there until you pay [the taxes]."

The City sent tax bills for all three homes to Everett Ashton as well as a notice of tax lien on one of the homes. The City filed tax liens on all three homes in Everett Ashton's name with the Merrimack County Registry of Deeds. The City also sent Everett Ashton water bills for one of the homes.

Everett Ashton sued the City, seeking declaratory and injunctive relief and damages. It requested that the court issue a declaration that it is not liable for its former tenants' taxes or water bills and order the City to either remove the manufactured homes or issue demolition permits. It claimed that, by withholding the permits, the City engaged in a taking for which Everett Ashton was entitled to compensation. It also requested costs and reasonable attorney's fees.

Following a preliminary injunction hearing, the trial court ruled that the City must issue the demolition permits. The court scheduled a final hearing, and on the day of that hearing, the parties agreed to submit trial ...


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