Brouillard v. Atwood, 7525
| Decision Date | 30 December 1976 |
| Docket Number | No. 7525,7525 |
| Citation | 116 N.H. 842,367 A.2d 596 |
| Parties | Carmen H. BROUILLARD v. Marion ATWOOD and Henry Spear, Commissioners of Belknap County. |
| Court | New Hampshire Supreme Court |
Richard P. Brouillard, Charles H. Bradley III, Laconia, and Stanley M. Brown, Manchester, for plaintiff.
Upton, Sanders & Smith, Concord (Frederic K. Upton, Concord, orally), for defendants.
Petition for writ of mandamus, injunction and other extraordinary relief, seeking to disqualify two of the county commissioners from acting in condemnation proceedings initiated under RSA 26:1 for the taking by Belknap County of the plaintiff's premises in Laconia, New Hampshire.
In 1973 the Belknap County commissioners appointed a building committee to study the adequacy of the county courthouse facilities. Included on this committee were the three commissioners, the clerk of the superior court, the sheriff, the clerk of the county convention and the chairman of the executive committee of the county convention. After consultation and study the committee recommended the construction of an addition to the existing facility requiring the acquisition of adjoining properties including that of the plaintiff herein. The proposed expenditure was in excess of one thousand dollars and as mandated by RSA 24:13 the plans were submitted to the county convention. On June 3, 1974, after a public hearing, the convention authorized the commissioners to borrow the required funds for the project and to enter into negotiations with the abutting owners for the acquisition of such property as they might deem expedient and necessary. The commissioners were also instructed that if they were of the opinion they could not acquire the land by contract for a reasonable price they were to so inform the convention which would then consider the propriety of eminent domain proceedings. In July 1974, the convention authorized the commissioners to negotiate with the plaintiff for the purchase of her property at a price not to exceed $40,000 and in the event the negotiations were unsuccessful, to proceed directly by eminent domain. The negotiations were unsuccessful, and condemnation proceedings instituted.
On December 4, 1974, the commissioners, acting pursuant to RSA 26:1, after notice, conducted a hearing on the proposed taking. The hearing was confined to the matter of 'whether there is occasion or necessity for taking Mrs. Brouillard's land in these proceedings.' Plaintiff, claiming bias challenged the qualifications of the commissioners to sit at the hearing, citing their prior involvement and pronouncements in the matter. The commissioners disavowed any interest in the outcome and refused to disqualify themselves. Plaintiff immediately announced the filing in the superior court of pleadings, including a petition for an injunction, and suggested a temporary recess. The proceeding was recessed. On December 16, 1974, the Superior Court (Keller, C. J.) denied relief, and the plaintiff seasonably perfected her appeal from that ruling.
The term of office of one of the commissioners expired on December 31, before the hearing could be resumed. In January of 1975 the original proceeding was discontinued and a new hearing held before the two original commissioners (defendants herein) and the new one. The plaintiff renewed her claim of bias. The commissioners found her property to be required for the enlargement of the courthouse and filed a proper return of location.
The plaintiff appealed to the superior court pursuant to RSA 26:2. The parties have agreed that our decision of the issues transferred by the plaintiff from the original proceedings shall apply to and govern the new condemnation proceedings which raise identical issues. The case was reserved and transferred by Batchelder, J.
Plaintiff's first argument for disqualification is statutory in nature. RSA 26:1 establishes the procedure for condemnation of land for county uses. She contends that this section incorporating 'all provisions for the hearing of highway petitions before selectmen . . . so far as the same are applicable,' should be held to...
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Town of Rumney v. Banel, 78-133
...reasonably be made on the evidence. There is no indication in the record of fraud, bad faith or abuse of discretion. Brouillard v. Atwood, 116 N.H. 842, 367 A.2d 596 (1976). Defendant's exceptions are therefore The town excepts to the order of the court requiring the payment of rent to defe......