SAN-KEN HOMES, INC.
NEW HAMPSHIRE ATTORNEY GENERAL, CONSUMER PROTECTION AND ANTITRUST BUREAU
Argued: January 25, 2018
Bernstein, Shur, Sawyer & Nelson, P.A., of Manchester
(Michael A. Klass on the brief, and Gregory E. Michael
orally), for the plaintiff.
J. MacDonald, attorney general (John W. Garrigan, assistant
attorney general, on the brief and orally), for the
plaintiff, San-Ken Homes, Inc. (San-Ken), appeals a decision
of the Superior Court (Ignatius, J.) requiring it to
apply for registration or exemption with the defendant, New
Hampshire Attorney General, Consumer Protection and Antitrust
Bureau (Bureau), under the Land Sales Full Disclosure Act
(Act), and to make certain improvements to Old Beaver Road in
the Oakwood Common subdivision in New Ipswich. See
RSA ch. 356-A (2009 & Supp. 2017). We reverse.
context, we provide a brief overview of the provisions of the
Act. The purpose of the Act is to "prevent fraud in the
sale of house lots in the State." N.H.S. Jour.
373 (1970). In furtherance of that purpose, a subdivider of
subdivided land of more than 15 lots may not offer or dispose
of any lot before the subdivided lands are registered with
the Bureau. See RSA 356-A:3, I(a), :4, I (2009). A
"subdivider" is "a person who is an owner of
subdivided land or one who offers it for disposition. Any
successor of [a subdivider] who comes to stand in the same
relation to the subdivided lands as his predecessor did shall
also come within this definition . . . ." RSA 356-A:1, V
subdivider must register subdivided land by submitting an
application to the Bureau. See RSA 356-A:5 (Supp.
2017). Upon receipt of an application for registration, the
attorney general must initiate an examination to determine
whether, inter alia, "there is reasonable
assurance that all proposed improvements will be completed as
represented," including "evidence of adequate funds
to complete any infrastructure, such as roads." RSA
356-A:7, I(b) (Supp. 2017). The attorney general must also
determine whether the "general promotional plan is not
false or misleading . . . and affords full and fair
disclosure." RSA 356-A:7, I(c) (2009).
allows for exemptions from registration under certain
circumstances. The Act "shall not apply" to an
offer or disposition of subdivided land of not more than 15
lots. RSA 356-A:3, I(a). In addition, a subdivider of
subdivided land of no more than 50 lots may apply for an
exemption from the registration and annual reporting
requirements. RSA 356-A:3, I-a(a) (Supp. 2017). Such a
subdivider "shall be entitled to an exemption" if
certain conditions are met. RSA 356-A:3, I-a(b) (Supp. 2017).
Further, the attorney general may exempt from any of the
provisions of the Act any lots in a subdivision "if it
finds that the enforcement of all of the provisions of [the
Act] with respect to such . . . lots . . . is not necessary
in the public interest and for the protection of
purchasers" because of the "small amount involved
or the limited character of the offering, or because such
property, in the discretion of the attorney general, is
otherwise adequately regulated" by town ordinances or
state or federal statutes. RSA 356-A:3, II (2009).
subsequent to the issuance of an exemption from registration
. . . the bureau has reasonable grounds to believe that
exemption in the particular case is not in the public
interest, the bureau shall . . . revoke the exemption."
N.H. Admin. R., Jus 1305.03(a). Grounds for
revocation shall include the insolvency of the subdivider.
N.H. Admin. R., Jus 1304.03(b)(3).
attorney general may bring an action in superior court
"[i]f it appears that a person has engaged in or is
about to engage in an act or practice constituting a
violation of" the Act. RSA 356-A:10, III (2009). The
attorney general may issue a cease and desist order, RSA
356-A:12, I (2009), or revoke a registration, RSA 356-A:13, I
addition, any time the attorney general has "reasonable
cause" to believe that the subdivider may be unable to
complete the development, it may require the subdivider to
"provide evidence of financial security" to assure
the completion of the development, and any person aggrieved
by the subdivider's failure to complete the development
"may proceed on such bond . . . to recover
damages." RSA 356-A:5, VI (Supp. 2009). Furthermore,
"[a]ny subdivider who disposes of any lot . . . in
subdivided lands in violation of [the Act] or who in
disposing of any lot . . . makes an untrue statement of a
material fact, . . . or omits a material fact . . ., is
liable to the purchaser of such lot," RSA 356-A:16, I
(2009), and "[a]ny purchaser, who is eligible for
relief" may bring an action for injunction and other
specified damages, see RSA 356-A:16, II (2009). The
attorney general may intervene in any suit alleging a
violation of the Act. RSA 356-A:10, IV.
record supports the following facts. Oakwood Common is a
16-lot subdivision originally developed by 112 Chestnut
Street, LLC (112 Chestnut). In June 2006, the New Ipswich
Planning Board (Board) approved the subdivision, conditioned
on 112 Chestnut paving to Town standards Old Beaver Road -