THE STATE OF NEW HAMPSHIRE

HILLSBOROUGH COUNTY                                                        SUPERIOR COURT
NORTHERN DISTRICT, SS

Goffstown Residents Association

 v.

 Town of Goffstown, School District

VERIFIED PETITION FOR TEMPORARY, PRELIMINARY

AND

PERMANENT INJUNCTION

            NOW COMES, the Petitioner, the Goffstown Residents Association, by and through its counsel, Baldwin, Callen & Ransom, PLLC, and complains against the Town of Goffstown, School District, as follows:

A.  SUMMARY OF THE CASE

            1.              This is an action for temporary, preliminary and permanent injunctive relief against the School District that is commencing the construction of a school building on property that was intended to be used only for recreational purposes.  The State of New Hampshire, Water Resources Board (currently Department of Environmental Services) sold the property to the Town of Goffstown, with the approval of the Governor and Executive Council, and with the intent that its use be recreational.  The recorded deed that followed, however, failed to capture the parties’ intent to keep it as “green space”.  Instead, the deed erroneously refers to the property as capable of being used for any public purpose.  A separate Bill in Equity/Petition to Reform the Deed to accurately reflect the intended limitation on the use of the property is forthcoming.  In the meantime, the School District intends to move forward with the clearing of the land and construction of the school despite the pending controversy over the use of the property, despite pending administrative appeals of the wetlands and site specific/terrain alteration permits and despite other procedural irregularities regarding the Town of Goffstown’s conveyance of a portion of the property to the School District.  The Petitioners respectfully request that any further construction be stayed pending the outcome of: the Petitioner’s Bill in Equity to Reform the Deed, the appeals of the Wetlands Permit and Site Specific/Terrain Alteration Permit, and public hearings to consider alternatives and to openly debate the wisdom of building a school on the subject property.

B.  PARTIES 

            2.          The Petitioner, Goffstown Residents Association, is comprised of approximately 100 residents of the Town of Goffstown, including direct abutters to the proposed building site.

            3.              The Respondent, Goffstown School District, is a New Hampshire corporation (RSA 194:2) with a principal place of business at 11 School Street, Goffstown, New Hampshire, 03045.

C.  JURISDICTION AND VENUE

            5.              This Court has jurisdiction over this equitable matter pursuant to New Hampshire RSA 498:1.  As the land upon which the controversy relates (“subject property”) is located in Goffstown, New Hampshire, and all of the parties are from Goffstown, venue is proper in Hillsborough County, Northern District.

D.  FACTUAL ALLEGATIONS

            6.          In July of 1967, the subject property was privately owned by Public Services of New Hampshire (PSNH).  At a meeting of the PSNH Board of Directors on July 20, 1967, the Board passed a resolution authorizing its officers to sell it to the State for recreational purposes for the benefit of the people of New Hampshire.  (Ex. A).

            7.              In a letter dated July 24, 1967, PSNH wrote to then Governor King and the Governor’s Council stating that it wished to sell the property to the State for recreational and other purposes for the benefit of the people of New Hampshire. (Ex. B).

            8.              By quitclaim deed, PSNH conveyed the property to the State of New Hampshire on December 21, 1967.  (Deed #1972-415)

            9.              Years later apparently, the State chose to divest itself of the subject property, which at the time was held by the New Hampshire Water Resources Board (“WRB”).  Toward that end, on January 19, 1972, the State, through the NH Council of Resources and Development (presently the NH Department of Resources and Economic Development), wrote to the Chairman of the Goffstown Board of Selectmen, Robert Wheeler, to confirm a meeting on January 31, 1972 to discuss the town’s interest in acquiring the subject property owned by the WRB.  (Ex. C).  Also invited to the meeting were the following: Mr. Lawrence Shirley, Chairman, Planning Board; Mr. George Aimo, Conservation Commission; and the Co-Chairmen of the Recreation Commission, Mr. Leon Burke and Mr. Paul Bedard.  (Ex. C). 

            10.            A memorandum summarizing the meeting of February 1, 1972 (apparently the January 31^st meeting was rescheduled to this date) reflects the Town’s interest in the swimming area and certain tracts (Lots A, B, C, G and the areas under the PSNH right of way).  (Ex. D).  Lots A, B, G and the right of way would be used as a wilderness or undeveloped area for a park and the “swimming area” and Lot C would be used for recreational swimming, a boat launch, parking, tables, etc., according to the memorandum (Ex. D).

            11.            On February 29, 1972, the Town Parks and Playground Commission requested the WRB to hold parcels A, B & C for a year to allow the Town an opportunity to further study those lots for future recreational use.  (Ex. E)

            12.            The WRB requested approval from then Governor Peterson to lease the lots to the Town for a year so that it could study the area for recreational use.  See letter dated April 18, 1972. (Ex. F).

            13.            In January of 1974, a selectman and member of the Budget Committee, as well as members of the Town Conservation Commission, Planning Board, Parks and Recreation Commission and interested citizens submitted a petition warrant article requesting the appropriation of $30,000.00 to purchase the subject property for use as a recreational area by Town residents, however, the warrant article failed.  (Ex. G).

            14.            In the Fall of 1975, the Town obtained Community Development Block Grant (CDBG) funds to purchase the property from the State.  In its application for the grant funds, the Town wrote that this may be the last opportunity to provide a public recreation facility on Glen Lake given private development pressures and that the acquisition would increase recreational opportunities for the community.  (Ex. H).

            15.            Upon obtaining the CDBG funds, the Town wrote to WRB requesting to purchase the subject property.  The letter further provided that, “The Town, as far as we know, never intends to sell any of this land, but is desirous to keep it for future use as a community park and playground.” (Ex. I).

            16.            The WRB requested then Governor Thompson and the Executive Council to authorize the sale of the property to the Town stating that, “The town proposes to use the area for conservation purposes and as a community park and playground.”  See Memo of July 16, 1976, attached as Exhibit J.

            17.            At the March 12, 1977 Town Meeting to approve Article 10 for the purchase of the property using only CDBG funds, a Town Selectmen explained the availability of funds for the land to be permanently green areas for no motorized vehicles and that the failure to approve the article would mean the possibility of a housing development starting soon.  The voters approved the measure by a wide margin.

            18.            On September 20, 1977, the State transferred the property to the Town by deed. (Ex. L).

            19.            The deed failed to accurately reflect the intent of the parties to limit the property to recreational uses.  Instead, the language of the deed expanded the use of the property to include any “public purpose”.

            20.            Consistent with the intent of the conveyance, the property has never been developed and has been used only as natural, undeveloped green space for over forty years.

            21.            On the March 2005 Goffstown Ballot, the Board of Selectman proposed a Warrant Article, Article 24, seeking permission to transfer approximately 20 acres to the School District to build a school.  (Ex. M). It provided:

Shall the Town authorize the Board of Selectmen to transfer ownership of approximately 20 acres of Map 5 Lot 14 to the Goffstown School District for the purpose of building a school on such terms and conditions as the Selectmen deem appropriate and to authorize the Selectmen to execute any and all documents to implement this conveyance?

22.            The voters approved the Warrant Article.

            23.            The Town failed to disclose in the Warrant Article that 27 acres of recreation land was actually at stake, a 30 percent increase over the 20 acres represented in the Warrant Article, and failed to clearly identify the property as the Glenn Lake Recreation Area, referring to it instead as Map 5, Lot 14.

            24.            The Town held no public hearing(s) to discuss the Warrant Article or to hear any debate on the proposal as required by RSA 41:14-a.  At no time did the Town offer the public an opportunity to explore alternative locations, including other town owned property.

            25.            The School District applied to the NH DES for a wetlands permit to dredge and fill over 7,000 square feet of wetlands in order to construct an access road for the proposed kindergarten building. (Ex. N).

            26.            Despite an applicant’s obligation to consider alternatives with the least impact to wetlands, N.H. Administrative Rule Wt 302.04(a)(2), the permit application failed to consider alternative sites which will have little or no impact to wetlands.

            27.            The Town owns a 20-30 acre parcel of ready-to-build upon, already cleared land just down the road from the subject property where there would be no need for a wetlands permit or a site specific/terrain alteration permit and where there would be ample room to construct the kindergarten and expand further to include an elementary school and ball fields which is part of the Town’s Master Plan.

            27.            Despite the glaring deficiencies in the application the DES Wetlands Bureau approved the permit on October 14, 2005.

            28.            The Petitioner moved for reconsideration of the permit approval that is now pending before the Wetlands Bureau.  If the Motion for Reconsideration is denied, the Petitioner intends to appeal the decision to the Wetlands Council and will pursue any adverse ruling from the Council to the Supreme Court, pursuant to RSA 541:6.

            29.            In addition to appealing the Wetlands Permit the Petitioner will be asking for reconsideration of the site specific/terrain alteration permit.

            30.            The building land requirements of the Department of Education have been ignored in the School District’s proposal.  N.H. Administrative Rules Ed 321.03(e) and 321.02(a) provides that wetlands and the required setbacks from wetlands may not be considered “buildable land” for purposes of meeting the minimum site size required by the rules.  The Goffstown Zoning Ordinance §12.3.3.2 places a 100 foot setback requirement along all wetlands in the Town.  This setback was not excluded from the buildable land calculations.  Had this 100 foot buffer been excluded as the rules require, the acreage on the lot would be insufficient for an expansion of the proposed Kindergarten into an Elementary school as the Master Plan intends. See Ed 321.03(f)(1).  The New Hampshire Department of Education has unlawfully concluded that local regulations implementing setbacks does not fall under their rules.  However, under such an interpretation of the rule, since Federal and State wetlands setbacks do not exist, these rules become meaningless.

E.  PETITIONER IS ENTITLED TO INJUNCTIVE RELIEF

            31.            The allegations contained in the preceding paragraphs are repeated and incorporated herein.

            32.            A party is entitled to preliminary injunctive relief when:  (1) there is an immediate danger of irreparable harm to the party seeking injunctive relief; (2) there is no adequate remedy at law; (3) there is a likelihood of success on the merits by a balance of the probabilities; and (4) the public interest would not be adversely affected if the court granted the preliminary injunction.  As set forth below, the Petitioner’s allegations sufficiently allege facts to justify the issuance of an immediate injunction.

(1)  Petitioner’s Need For Injunctive Relief Is Present And Immediate

            33.            On November 4, 2005, the Respondent held a public groundbreaking ceremony to announce the commencement of construction.

            34.            Surveyors are marking areas at the subject property and upon information and belief site clearing is scheduled to begin on Monday, November 14, 2005.

(2)  Petitioner Has No Adequate Remedy At Law

            35.            Petitioner seeks to protect conservation land abutting Glenn Lake, one of Goffstown’s finest natural resources.  The loss to Petitioners and the citizens of the State of New Hampshire of half of the fifty acres that was intended to held open for recreational use and enjoyment and which serves to protect Glenn Lake can not be quantified.

            36.            In addition to its preservation goal, Petitioner seeks to ensure that the citizens of the Town of Goffstown are fairly and adequately informed of the alternatives to building public schools at the subject property prior to voting on whether or not to construct a school building(s) at this location.  There is no adequate remedy at law to compensate Petitioner for:

            a.            The Town’s failure to adhere to the recreational use limitation of the property as the parties intended in the 1976 conveyance;

            b.            The Town’s failure to conduct public hearings and open deliberation of the alternatives as required by RSA 41-14-a;

            c.            The loss of valuable and fragile wetlands that are part of the Glenn Lake Watershed and important to its protection; and

            d.            The loss of a large portion of recreation/conservation land enjoyed by residents of the town for over 40 years.

            37.            Petitioner has no other means to protect itself and the citizens of the State of New Hampshire from permanent loss and destruction of a significant portion of the recreation land.

            38.            Granting the injunction will preserve the status quo of the property pending the resolution of Petitioner’s Bill in Equity to Reform the Deed, appeals of wetlands and site specific permits, as well as conducting open public hearings to air the alternatives to developing the property.

(3) Petitioner has a strong likelihood of success on the merits

            39.            Petitioner is likely to succeed on its Bill in Equity to Reform the Deed.

            40.            There are numerous documents, including but not limited to, communications to and from the Town of Goffstown, the Town’s HUD application, and memoranda which indicate that the subject property was to be used for recreational and/or conservational purposes. 

            41.            Petitioner is likely to succeed on its appeal contesting the issuance of the Wetlands permit.

            42.            The Town has failed to consider any potential alternatives where a kindergarten future Elementary school may be built and has failed to show why the subject property will have the least effect on wetlands, despite the existence of Town-owned property located only a few miles away where there are no wetlands.  See Petitioner’s Motion for Reconsideration before the Wetlands Bureau, Nov. 1, 2005, attached as Exhibit O.

(4) The public interest would not be adversely affected

            43.            Construction has not begun on the subject property as of the filing of this Petition.

            44.            A preliminary injunction will preserve the status quo while the above issues (equity action to reform deed, wetlands and site specific appeals, public hearings and consideration of alternatives) are resolved before the Town spends considerable  public funds on construction and before valuable conservation land is impacted.

            45.            A delay in construction will have little to no affect on the citizens of Goffstown.  By contrast, moving ahead with land clearing, road building and building construction in the face of numerous legal challenges, which may ultimately result in a decision to construct the school buildings at a different location, will adversely and unnecessarily impact the environment and be a complete waste of taxpayer money.

PRAYERS FOR RELIEF

            WHEREFORE, the State of New Hampshire respectfully requests that this Honorable Court:

            A.            Grant the State’s Petition;

            B.            Order defendants to cease and desist from performing any additional site work;

C.            Grant such other relief as may be just and equitable.

Respectfully submitted,

Petitioner,

                        Goffstown Residents Association,

Dated:              By:________________________________

Geoffrey J. Ransom

Baldwin, Callen & Ransom, PLLC

101 N. State Street

Concord, New Hampshire 03301

Tel. (603) 225-2585

Verification of Facts

I, Collis Adams, am a resident of Goffstown and a direct abutter to the proposed development.  I am also a member of the Goffstown Residents Association.  I have reviewed the facts set forth in the above Petition and hereby swear and affirm that the facts contained therein are true and accurate to the best of my knowledge and belief.

Collis Adams

Notary Certification