Stanley Emanuel v. Town of Bow, New Hampshire & a.

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2020-0295, Stanley Emanuel v. Town of Bow,
New Hampshire & a., the court on May 13, 2021, issued the
following order:

Having considered the briefs and record submitted on appeal, we
conclude that oral argument is unnecessary in this case. See Sup. Ct. R. 18(1).
The plaintiff, Stanley Emanuel, appeals an order of the Superior Court
(Kissinger, J.) granting summary judgment in favor of the defendants, the Town
of Bow, New Hampshire, and Ted Severance, with respect to Emanuel’s claims
that the Town engaged in unfair bidding practices when selling certain real
property. We affirm.

The pertinent facts are as follows. The property at issue is a 28.23-acre
parcel located in the Town’s business development district. Pursuant to RSA
41:14-a, I (2012), the Town’s Conservation Committee, Heritage Commission,
and Planning Board held meetings to approve the proposed sale. The
Conservation Committee recommended that the property be sold subject to the
recommendations of the Heritage Commission, which, in turn, recommended
that the Town retain ownership over a historic mill site and stream flow on the
property. The Planning Board also recommended that the property be sold,
“preferably to a bidder who has immediate plans to develop it and get it back
on the tax roll.”

In March 2019, the Town solicited sealed bids for the property by issuing
a notice of offer to sell town parcel, which described the property, the bidding
process and requirements, and other conditions of the sale. The notice
provided, among other things, that:

 “Bidders must use the Bid Form in this packet”;
 “In the case of a tie bid, the Town reserves the right to use the earliest
post marked date and time on the sealed bid envelope”;
 “The Town retains the right to reject any and all bids and to waive any
formality in the bidding process”;
 “There is an historic mill site on the land. The Quit Claim Deed will
include an easement to the Town for access to the mill site and the right
to maintain and preserve the mill site”;
  “Bidders may provide information regarding their plans for future
development of the Premises. This information may be considered by the
Board of [Selectmen] when evaluating the bid proposals”; and
 “Bidders are advised there is a snow mobile trail across the land . . .
Bidders are encouraged to commit to reach an agreement with Bow
Pioneers for continuation of the trail.”

The notice did not include the minutes of the Conservation Committee,
Heritage Commission, or Planning Board meetings, nor did it detail their
discussions or recommendations.

The Town attached to the notice a summary of the business development
district zoning ordinance, which provides:

The purpose of the Business Development District Ordinance is to
attract environmentally acceptable commercial, industrial,
recreational, and institutional uses to the District; to encourage
diversity in the community tax base through appropriate flexibility
in land use and land use development; to optimize financial return
on public infrastructure investments and expenditures . . . ; to
minimize adverse traffic impacts . . . ; and to preserve valuable
historical, cultural, and natural features within the District and to
minimize adverse environmental impacts to water and air, while
reducing light and noise pollution, flooding, clear cutting of
vegetation, and the blocking of scenic views.

The Town also attached a required bid form, which asked bidders to
submit certain identifying information, the amount of their bid, and to certify,
among other things, that the bidder “understand[s] that the Town reserves the
right to reject any and all bids and to waive any formality in the bidding
process.” The bid form also included a section asking bidders to submit
information about their plans to develop the property, but noted that this
section was “not required.”

In April 2019, the Town received five bids for the property. Emanuel’s
bid offered the highest purchase price, but did not identify any proposed
development plans for the property. Severance’s bid was lower, but stated that
he intended

to develop the premises as quickly as possible into a retail store for
building material. Bidder is a sustained and successful
businessman in the Town and has a vested interest in the future of
the Town. The new store will create new local job opportunities
and create a much needed and convenient place for the people of
the Bow community to purchase building materials. In addition,

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 the Bidder, if successful, will meet with the Bow Pioneers to
discuss terms and conditions for the continuation of [the] existing
snowmobile trail.

In late April 2019, at a meeting of the Town Board of Selectmen, the
board reviewed the submitted bids to determine “which would provide the most
long-term benefit to the Town, including the future use of the land.” Emanuel
objected to the application of that standard, questioning “whether it was
appropriate for the Town to consider future development of the site instead of
only the bid offer.” The vice chair of the board responded that “it has been the
intent of the Business Development Commission to develop that land.”
Thereafter, the board selected Severance’s bid as the winning bid. Emanuel
filed a request to reconsider, which, following a hearing in May 2019, was
denied. Emanuel then sued the Town and Severance in superior court. The
parties filed cross-motions for summary judgment, and, in an order issued in
April 2020, the trial court granted summary judgment in favor of the Town and
Severance. The trial court denied Emanuel’s motion for reconsideration, and
this appeal followed.

“In reviewing a trial court’s rulings on cross-motions for summary
judgment, we consider the evidence in the light most favorable to each party in
its capacity as the non-moving party,” and, “if no genuine issue of material fact
exists, we determine whether the moving party is entitled to judgment as a
matter of law.” Langevin v. Travco Ins. Co., 170 N.H. 660, 663 (2018). “If our
review of that evidence discloses no genuine issue of material fact and if the
moving party is entitled to judgment as a matter of law, then we will affirm the
grant of summary judgment.” Id. “We review the trial court’s application of the
law to the facts de novo.” Id.

On appeal, Emanuel first argues that the trial court erred by granting
summary judgment in favor of the Town and Severance because Emanuel’s bid
“was the highest bid that conformed to the terms of the auction sale,” and that,
under the “general rule” described in Perry v. West, 110 N.H. 351, 355 (1970),
and the cases cited therein, the property must be awarded to the highest
bidder. See id. We disagree.

Emanuel’s argument is based on the following statement in Perry: “The
general rule that a municipality must accept the highest bid only requires
acceptance of the highest bid which conforms to the terms of the auction sale
consistent with the governing municipal ordinance.” Id. (citations omitted).
However, Perry involved a tax sale, and the issue in that case was “whether a
municipality can be compelled to accept a bid for property sold for taxes
accompanied by a bank draft or a cashier’s check when the municipal
ordinance and the announced terms of the auction sale require[d] the bid to be
accompanied by ‘cash or certified check.’” Id. at 352. Accordingly, the “general

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rule” articulated in Perry was not essential to the holding in that case, and,
therefore, as the trial court correctly noted, is non-binding dicta. See In re
Estate of Norton, 135 N.H. 62, 64 (1991).

Moreover, New Hampshire law is clear that “absent a competitive bidding
statute,” which, here, the Town does not have, “cities and towns are free to
exercise discretion in determining what property to sell and how to sell it,” and
that, because “the decision by a [municipality] to accept a bid on the sale of
municipal real estate has been said to be discretionary, . . . [a] sale cannot be
avoided unless the plaintiff shows that the decision was arbitrary, capricious,
unjust, or illegal.” Toy v. City of Rochester, 172 N.H. 443, 449-50 (2019)
(quotations and brackets omitted) (observing that such discretion can include
the ability to reject a higher bid in favor of a lower one); see also Irwin Marine,
Inc. v. Blizzard, Inc., 126 N.H. 271, 274-75 (1985) (observing that “[t]he
judiciary’s role should not be to write competitive bidding procedure into
municipal sales on a case-by-case basis”). Accordingly, Emanuel’s reliance on
Perry, and the inapposite or non-binding cases cited therein, is misplaced.

Next, Emanuel argues that “if the Town intended to consider non-price
factors, . . . it had a duty to put those criteria into its Notice of Offer to Sell.”
Accordingly, he contends that, because the Town did not do so, he was treated
unfairly when the Town “rendered a decision awarding the property to a third
place bidder on the basis of unpublished decision-making criteria of which [he]
had no notice.” We disagree.

As we have observed, “absent a competitive bidding statute, cities and
towns are free to exercise discretion in determining what property to sell and
how to sell it.” Toy, 172 N.H. at 449 (quotation omitted). Nonetheless, “a
municipality’s discretion in matters concerning the sale of public property,
even absent a statute, must be bounded by notions of fairness in order that the
public interest and public confidence in governmental actions be upheld.” Id.
at 449-50 (quotation omitted). Indeed, even when a municipality is not bound
by a competitive bidding statute or ordinance, once it “has chosen a public
bidding procedure in the sale of its realty, the public interest and public
confidence in government require the municipality to treat all bidders fairly and
equally.” Id. at 450 (quotation omitted); see also Irwin Marine, 126 N.H. at
275.

We can discern no unfairness or inequality in the Town’s bidding process
or decision-making in this case. The notice of offer to sell expressly states that
a bidder’s “plans for future development of the Premises . . . may be considered
by the Board of [Selectmen] when evaluating the bid proposals.” Further, the
Town attached to the notice a summary of the business development district
zoning ordinance, which sets forth the Town’s specific goals for development in
that district. Additionally, the notice provided, and Emanuel certified that he

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understood, that “[t]he Town retains the right to reject any and all bids and to
waive any formality in the bidding process.” Lastly, we note that the bid form,
which was attached to the notice, included a section where bidders were asked,
but not required, to provide information as to their development plans for the
property. We agree with the trial court that, in light of these facts, it is evident
that all of the bidders received adequate notice that the Town was interested in
the bidders’ development plans, and that it retained the discretion to consider
such plans when evaluating their bids. Although Emanuel was free to decline
to provide such information, as he did, it is not unfair or unequal, on these
facts, for the Town to select another bidder who chose to provide development
plans that aligned with the Town’s development goals. Nor was it “arbitrary,
capricious, unjust, or illegal” for the Town to do so in this case. Toy, 172 N.H.
at 451 (quotation omitted).1

Next, Emanuel argues that the trial court erred when it found “the facts
of this case similar to Toy and the case controlling.” Emanuel contends that
Toy is distinguishable because, in that case, there were “two factors [that]
sufficiently notified bidders that the City would be making its decision on
considerations other than price: (1) that the Notice of Sale reserved the right to
reject any bid ‘if deemed to be in the best interests of the City’; and (2) that the
Notice of Sale required bidders, in the very next paragraph, to provide
information concerning their intended use of the property. These were
essential facts controlling the result in Toy, and neither fact was present in this
case.” (Citation omitted.) We are not persuaded.

As we have explained, and as the trial court found, the express
provisions of the notice of offer to sell in this case were sufficient to put all
bidders on equal notice that a bidder’s “plans for future development of the
Premises . . . may be considered by the Board of [Selectmen] when evaluating
the bid proposals,” and that the Town “retains the right to reject any and all
bids.” Toy does not require that specific language be used in a notice of offer to
sell; it merely requires that, absent a competitive bidding ordinance, the Town,
having chosen a public bidding procedure, must “treat all bidders fairly and
equally,” and may not exercise its discretion in an “arbitrary, capricious,
unjust, or illegal” manner. Toy, 172 N.H. at 449-51 (quotations omitted).
Here, those requirements have been met, and we are not persuaded that the
minor factual distinctions advanced by Emanuel mandate a different
conclusion.

Nor are we persuaded that, as Emanuel argues, the presence of a first-
in-time tie-breaking provision in the notice of offer to sell implies that the Town

1 Emanuel’s argument that the Town cannot consider the bidders’ development plans because

the notice of offer to sell provided that the Town may consider such information instead of
providing that the Town would consider such information does not warrant further discussion.
See Vogel v. Vogel, 137 N.H. 321, 322 (1993).

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would only consider bid price, and undermines the notion that the Town might
consider the bidders’ development plans. First, any such inferences are
precluded by the express terms of the notice providing that development plans
“may be considered.” Second, the presence of a first-in-time tie-breaking
provision is not inconsistent with the Town’s ability to consider bidders’
development plans. Given that bidders were not required to disclose their
development plans, the first-in-time tie-breaking provision provided the Town
with an objective basis upon which to select a winning bid in the event that
there was a tie bid where no bidders opted to provide such plans.

Emanuel also contends that, because the Town has been more specific
about non-price decision-making criteria in other bidding contexts, it should
have done so here, and its failure to do so was a deliberate attempt to generate
interest in the property by misleading potential bidders into thinking that price
would be the Town’s only consideration. However, the pertinent inquiry is
whether this bidding process was fair and equal. See Toy, 172 N.H. at 450;
Irwin Marine, 126 N.H. at 275. Whether the Town has taken a different
approach in a different context is not dispositive of that inquiry. Moreover,
Emanuel’s arguments notwithstanding, the notice of offer to sell was simply
not misleading — it expressly informed all bidders that their development plans
may be considered by the Town when evaluating their bids.

Lastly, Emanuel argues that Severance’s bid “should have been rejected
as non-conforming,” because “it failed to provide the information called for by
the Bid Form, while submitting additional, vague, immaterial, non-binding
pledges about job creation.” We disagree. First, to the extent that Emanuel
argues that Severance’s bid was non-conforming because it failed to answer
one or more of the specific questions pertaining to the bidder’s development
plans, we note that, even if true, those questions were “not required.” Indeed,
Emanuel opted not to answer any of them. Nor are we persuaded by
Emanuel’s argument that Severance’s bid was non-conforming because it went
beyond the scope of the specific questions asked on the bid form, and because
it took the form of “an uncalled-for narrative, not a ‘yes or no’ answer” to those
questions. The notice of offer to sell provided that “[t]he Town retains the right
to . . . waive any formality in the bidding process,” and invited bidders to
“provide information regarding their plans for future development of the
Premises.” The information Severance provided in his bid form was responsive
to that request, and the Town was free to waive any formalities with which it
may not have conformed.

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 Because the additional issues raised in Emanuel’s notice of appeal were
not briefed, they are waived. See In re Estate of King, 149 N.H. 226, 230
(2003).

Affirmed.

Hicks and Donovan, JJ., concurred; Houran, J., retired superior court
justice, specially assigned under RSA 490:3, concurred.

Timothy A. Gudas,
Clerk

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