OSSIPEE — A judge in Carroll County Superior Court has granted a motion that will allow a group of Ossipee Lake shore-front property owners to ask the Supreme Court to approve class action suit status.
Through their attorney, Amy Manzelli of BCM Environmental and Land Law PLLC in Concord, property owners Roland Cherwek and James J. Fitzpatrick and more than 100 other “similarly situated” Ossipee Lake area landowners are seeking permission for a class action suit against the defendant, the town of Ossipee. The plaintiffs argue that the town, through its tax assessor, set a disproportionately high base tax for the value of their land.
In order to file a class action lawsuit, the case must meet certain criteria. In January, Carroll County Superior Court Judge Steven Houran disallowed the class action certification and later denied a motion for reconsideration.
However, Houran granted the plaintiffs' request to bring the question of class action status to the New Hampshire Supreme Court. In the motion granted July 16, Houran said the issue has not been directly addressed by the New Hampshire Supreme Court.
“In the present case the issue presented, concerning class certification of a group of real property taxpayers seeking abatement concerning a base land rate, while not terribly complex, is significant, and is an issue that at least in these particulars has not yet been directly addressed by the New Hampshire Supreme Court,” wrote Houran in his order.
“Resolution of this issue would clarify further proceedings of the litigation by resolving whether this case should proceed as a class action, or must, as it now stands, proceed on the basis of claims asserted by each of the up to 110 individual property owners, whether or not consolidated,” stated Houran.
He granted the request on the condition both parties — Ossipee town counsel Richard Sager of Sager & Haskell, and plaintiffs' counsel Manzelli — can agree upon an interlocutory appeal statement. Houran also granted the attorneys' request to extend the filing deadline due to vacations.
Manzelli said on Wednesday that attorneys are working on the interlocutory appeal that will be submitted to the Supreme Court, and once filed, several things can happen.
“We're hoping the Supreme Court accepts the appeal … the case involves unsettled questions between laws in New Hampshire and the law in other states.”
She said the Supreme Court can decline the appeal and not look at the question.
In previously filed court documents, Sager argued that each parcel requires separate consideration and should not be lumped together for a class action lawsuit.
“Given that each parcel of real estate is unique in its physical characteristics and location, it is impossible for the court to establish a ruling that would adequately result in fair assessment to all 60-plus properties of which the plaintiffs seek to have the various owners certified as class,” stated Sager. “Rather, each parcel has to be examined individually to determine whether or not it is assessed proportionately.”