02/27/illila 14: 41' 61137436400' SO-U.TE LAW CFFICE PAG!

a 112

THE STATE OF NEW HAMPSHIRE

Strafford Superior Court FEB 2 7 2008
Jusdce &: A.dmln Buildlng
CouncyrFann R02d / Boit 799
Davcr, NH 03820
603 742·306S

NOTICE OF DECISION

JAMES H SCHULTE ESQ (J

ATT.ORNEY AT LAW
660 CENTRAL AVBNUB
DOVER NH 03820

05-E-0074 DIA.~ MQRGAN BT AL VS. CITY OP DOVBR

Enclosed please !ind a copy of the Court's Qrdez dated 2/25 /2QQ8
re lat.ive t:o:
.Court Order

0:2/25 / 2 008 Julie W. Ho.wa.r d

Clei::k of Cour t
cc: ~,= G\ S.<::.OTT, ESO.
ALLAN. KRANS ESQ .
0 2/27 /2008 ! 4 :47 6037436400 SCl-lJLTE LAW Cf'FIC£ PAGE 03

THE STATE OF N:EW HAMPSHIRE

STRAFFORD·COUNTY SUPERIOR COURT

Diane Morgan. et aL

v.
The City of Dover

&ocketNo.: 05-E-0074

ORDER

The petitioners brought this action requesting zn ex parte resc:aining o.rder,

permanent injunction. and dama,ges. following !he Cityof..Dover's ('/the City") project to

wi.9"IJ and repave Bacy; Road. As pan of the project, the City,cut and removed cmain
trees lo the public right ofw~y. The-petitioners. residents along Baek Road, received an

uns,igned nptice of the tree rem.oval. The pctitioQers .assen lhe notice did not comply with

statutory requirements. See RSA 231 (.1993 .&. Su_pp. 2007). The parties entered a

stipulation as to compensation for !lie tree removal. The remaioil)g issue before the court

is the type of notice the Ciiy.must provide abutting landowners in circwnstances of tree

removal. The-petitioners_argue f!ie n.otice the City pl'O"ides is still inadequate and fails to

meet all the statutory reqajrements. 'J"be petitioners fe/juest attorney's foes. The court

be)d a hearing on this matter on October .24, 2007. At the, hearing, tbe parties $Ubroittcd

proposed noijees. After review of the parties' arguments and the applicable taw, the

c.ourt /in<!s and rules as follows.

Following- teVi-ew of the parties' proposed notices, the court adopts the City's

-p~posed notice; witb modifications. The City's pwp.O'se'd noti.ce includes a letter. a
02/27/20~8 14: 47 6037436400 50-llLTE LAW OFFICE PAGE 04

re_spon:se foIIQ., and an attru:hment, Th.e "court ~ts lhe "Owner Respo_nse Form" and,

"Atmchmcnt: Trees Scheduled for CuttiDgffrimmlng" .from the City iD full, and makes

modifications• to \he letter. The modilkations ate attached to this order. The modified

letter, togelhcr with. the "Owner"Respimse Form" and tttacliment: Trees Sc)teduied for
h

Cuttiniffrimmi»g~ shall be used by the City in future acts of tree cutting and trimming 10

pro\-ide abutting.Jandi>v;-n_ers will\ /j_otice.

Tb!> court declines the petitioners' request ibat the CTl:y pi:o:vide-the. adopted notice

to landowners who ~ _trees removed since the beginning :of1his litigation. The court

furthi;r d~lmes to reprariana tlie City for remomng stumps foll~ing tl1is court's April
26, '2005 order. The court, however, holds the City to its representation at, the hearing on

lhi_s matter that it v.iiU train its pcrso(l.l)el involved in road consttuetion .and tree removal

as to tbe rights of landowners.

Mo_reoVet, the court awards 'the petitioners' attorney's fees. "When overriding

considerati.= ~ indidate, thi: award oH'ees lies ,Vill)in the power ofthe·q,urt, and is an
appropriate loo! in the court's arsenal to do justice and ..vindicate rights." N.H. Motor

Trailspon Ass'n v. State, 150 N.H. 762, ?70 (2.004) (quot_il;ions and citation orttitted).

The court awards ·attomey's .fees. where the litigation "conferral. a substantial benefit .-..

n9t only [upon the pa,:ties'] ..., b.ut on the public as well." Id. (quotations and citation

omitted). The court finds that under Uris stan4ai;d, the petftioner.; are entitled 10

attorney's fees. Prior to .this Jitigatil)I), the-City provided notice of-tree cutting via a two-

sc:p.tenoe letter !hat faijed to m:,tify the tcJ:ipjcnt oi his or her appe:al or compensation

righrs. (Memo. Ex. A). As· of April 2006, !be Cicy te\.ised the notice form it pn))lided

laooowners, yet such notice was still :miP.imal. (Memo. Ex. C). The notice adopted by

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the ,ourt as a result of this litigation is comprehensive and complies with all statuJ.o.iy

rcq.uimnents. Therefore, lhe court:tinds that th,is substantial ben~fit is one to the general

pub.lie and ,vammts aftomey'sfeeii tO the petitioners.

So Ordered.

Date
Ck--
Peter'H. rauvcr
Pi:esiding Justice

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KB: NOTICE OP TREE CUTTING A,-..;'I) REMOVAL

Dear.

Please be advised the Commllllity Services Ilq,artment has , scheduled the below
described tree(~) located in the public rigl_\.t of way for cutting and removal or trimming.
The City has de'tennined vou own the iree[s}. The puxpo-se of the cutting/tz;immmg is )b
remove hazardous trees, irees that pose a safety threat znil/or trees inteifcting wilh
hi_ghway construction or alteration.

The tree(s) :have been marked by the staff of the Commuoiiy Services Dc:pa.nment and
phoWgrap_hs of tlfe.maiked tree(s) as marked are enclosed witb tb1s Doti~ A listing of
t!l:e ~es is al~<? en~losed.
ti.sied below.are t!ie-tb,t,e (3) situations that can result in.bu cutting ·or remo:val. I have
checked ihe provisions that apply •t o yom trees.

_ _ Hazardow Ti;~. Since the tree(s) (or p/1115 thereof) described above have been
declared a public nuisance by _reason of denger to the traveling public or spread of tree
disease pursuant to RSA 231:145, you are not ·entitled to comp~ and )lilu are not
required ·10 pay fQr the re.t_noval of the trees (RSA 231:146}. Please find ej)cl9sed.a,cqpy
of 1he declarati9n by the City Man~er.

_ _ Trees.1\-ifb.,a circumfereuce..of 15 inches or more, which have been declared a

safety hazard. Sioce the•tree(s) described above may c3llSe damage or pose a sll.fety
bactaTdio the highway or to the traveiing·publi:c, you are not ¢ntitled to compeasaUon and
>'OD are not required to pay fo, therempval o.f the tiw; (RSA 231 :1 50 aod RSA 23.1:145).
Please ,find enclosed a copy o:fthe dechuation by the City Manager.

In either option above, you have a rigbt to COil.rest \he cutting/removal of the tree(s). You
may appeil. to the S1rafford County $uperlor CoUtt witb.in ·thirfy (30) days after notic~
has been served, and you ~U receive .a speedy.b_eai:ing. .

Highway Constnction or Alteration. Since the remo~-ai of the tree(s) desctjbed

above i~necessaey for il\e construction ot the alteration of a highway ;i;; provicl'ed in RSA
23 1: l i, you liave the right «> compensation. in the- amo.unt of S._ _ __, for the valu.e
of the tree(s), and also have the right to contest the taking of the u-ee(s) by filing a
petition with the.Strafford County·Superior Court within stx;ty (60) days as prpvided in
RSA231:34. .

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02121120ea 14:47 6 8'.374364<10 SCI-U...TE LAW OFFICE PAGE 07.

You have a choice., Please•inake a selection ·and.return the Owner, Response Fonn·to the·
City of Dover in the e,iclo~ stamped, addressed envelope, whi.ch 1 have enc)o~ for
your convenience.

A)so, thew~ from the cutting and !Jjroming will rotnain on the property of the propeny
owner for the use of the pll)_perty O"'Tler unle.s s the pl))perty owner requests that the City
remove the wood. The request for removal ~)lall be made in writing and,included in the
envelope with the Owner.Response Form. · ·

If you h.ave any questiqns, you may ~nt:ac_t the-City staff at _ _ _ _ __ and ~k for

Sincerely,

Douglas Steele
Community Se:rvic~ Director

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