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Judge says Briarcrest case to be decided on meaning of 'good faith'

LACONIA — The dispute over the future ownership of Briarcrest Estates moved closer to trial this week when Justice James D. O'Neill , III of Belknap County Superior Court denied the motion of the Lakemont Cooperative to dismiss the petition of Mark and Ruth Mooney, owners of the manufactured housing park, asking the court to approve their sale of the park to Hometown America Corporation. In the process, O'Neill clearly signaled that the case will turn on what it means to negotiate in "good faith".
The dispute hinges on a statute that requires park owners, upon receiving an offer to purchase their park, to "consider any offer received from the tenants or a tenants' association" and to "negotiate in good faith with the tenants concerning a potential purchase." Failure to comply carries a liability to the tenants of $10,000 or 10 percent of the purchase price, whichever is greater.
In July the Mooneys accepted a $10-million offer from Hometown America. Tenants representing a minority of the 241 units in the park incorporated as the Lakemont Cooperative and matched the $10 million offer.
In response, the Mooneys asked the court to approve the sale to Hometown America, claiming that since a majority of tenants preferred commercial to cooperative ownership of the park, approving the transaction would be in keeping with the intent of the statute to safeguard the best interests of tenants. Subsequently a majority of tenants petitioned the court opposing a sale to the cooperative and asking to intervene on behalf of the Mooneys.
The Lakemont Cooperative, represented by attorney Robert Shepherd, asked the court to dismiss the Mooneys' petition, arguing that as the owners of the park they were in no position to represent the interests of its residents. Moreover, Shepherd reminded the court that the law does not prescribe that the cooperative include a specific number, let alone the majority, of tenants to make an offer and pursue the transaction.
In objecting to the cooperative's petition to dismiss, Fitzgerald argued that the term "tenants" and "tenants association," which are nowhere defined, are ambiguous, but can only reasonably be taken to refer to a majority of the tenants. Consequently, he concluded that the Mooneys "owe conflicting duties of good faith" to both the cooperative and the majority and could face a liability of $1 million for failing to bargain in good faith with either. He asked the court to resolve the ambiguity of the statute.
At a hearing in November, Shepherd insisted that the law is not at all ambiguous and that Fitzgerald, by reading tenants to mean majority, was seeking to add words to it that amounted to "a distortion of the plain meaning of the statute." He said that since the majority of tenants have not tendered an offer for the park, there was nothing to negotiate with them.
In declining to dismiss the Mooney's petition O'Neill found that the issues it raised did not qualify for dismissal proceedings. At the same time, he held that the court need not find the statute ambiguous. Instead, he ruled that the essence of the Mooney's claim is by choosing to sell to Hometown America because a majority of the tenants do not want the park to be owned by a cooperative they have met the requirement to negotiate in good faith. "Thus," he concluded, "the crux of this matter is what constitutes 'negotiate in good faith,' not what constitutes tenants or tenants association."
The case is expected to be tried on March 22.

Last Updated on Thursday, 26 December 2013 10:59

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Mean-spirited theft fails to stop 9-year-old's drive to help New Hampshire Humane Society

LACONIA — The Monday before Christmas, 9-year-old Jet Wang, a fourth grader at Holy Trinity School, was named honorary director for the day at the New Hampshire Humane Society.
The honor was bestowed on the youngster after he delivered $1,100 he had collected at his parents' Shang Hai Restaurant on South Main Street in his own personal fundraiser for the society.
''It was a wonderful gift and it sets a great example for other children,'' said Marylee Gorham-Waterman, director of development at the society.
She said that Wang's family also added to the gift he brought, having gone on a shopping spree earlier that morning at BJ's Wholesale Club in Tilton , where they spent $100 on cat and dog food, animal toys, paper towels, a dog bed and even bleach for disinfecting the animal cages at the shelter.
Wang came up with the idea for the fundraiser last summer after he and his Aunt Annie visited the Humane Society.
''They had been at the restaurant and he was bored. So I suggested that he and his aunt go up there to see the animals,'' said his mother Hong Yan, who along with her husband runs the restaurant.
When Jet returned he told his mother that he would like to adopt a dog.
But Yan said that as much as she would like for him to have a pet, that it just wouldn't be fair to the dog as both she and her husband work 12 hours a day at the restaurant and there wouldn't be time to properly take care of a pet.
Wang was still determined to do something for the animals at the shelter and came up with the idea of raising money for the Humane Society by putting a "swear jar" on the bar. Every time one of his mother's patrons curses, he or she has to put some money in the jar for the Humane Society.
The goal was to raise $200 for the Humane Society and one of Yan's regular customers said he would match up to $200 if Jet and his "swear jar" could raise that much money.
Yan said she too would match Jet's $200.
But in early September some young people stole all of the paper money the jar, which was clearly marked as a fundraiser for the Humane Society.
''I was kind of mad, but mostly really sad about the money being taken,'' says Jet.
But after a story about the theft ran in The Daily Sun on September 14, things turned around for the fundraiser.
The Bank of New Hampshire contributed $200 to the cause even set up a collection box to help out. And the restaurant's customers gave generously, with several even chipping in $100.
''People sent us checks and cash in the mail. A lot of it anonymously,'' said Yan.
''One girl at school even gave me her lunch money to help the animals,'' said Wang, who says that he learned that while there may be bad people in the world who will steal there are many more people who have good hearts and are willing to help.
''I feel good that I was able to do this for the animals at the shelter and that so many people helped me,'' said Wang.
Yan said her family has been in Laconia for 25 years and the community has been so good to them that they wanted to do something for Laconia and the Humane Society. With the $1,100 delivered Monday the earlier Bank of N.H. donation pushed the total raised to $1,300.
''We are so grateful to all the people who helped out, especially Harry, Nick, Donna, Annie and Rich. We can't say thank you enough,'' says Yan.

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9-year-old Jet Wang is presented with a certificate naming him honorary director for the day at the New Hampshire Humane Society by Marylee Gorham-Waterman, director of development at the society. New Hampshire Humane Society. (Roger Amsden/for the Laconia Daily Sun)

Last Updated on Thursday, 26 December 2013 01:23

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30-year-old man found dead at Laconia hotel

LACONIA — Police are investigating the untimely death of a 30-year-old man who was found at the downtown Landmark Inn on Tuesday at 2:46 p.m.

Hotel staff called emergency responders after they went to check on the man after a member of his family asked them to.

Police said he was pronounced dead at the scene. They said there were no obvious signs of trauma but the N.H. State Medical Examiner and city police are investigating the cause.

Identification is being withheld pending notification of family members.

Anyone with any information is asked to call the Laconia Police Department at 524-5252 or to leave an anonymous tip at the Greater Laconia Crime Line at 524-1717.

Last Updated on Thursday, 26 December 2013 01:14

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2 key March votes would put construction of Belmont's Winnisquam Scenic Trail on front burner for 2014

BELMONT — The money for Phase I of the Belmont's portion of the Lake Winnisquam Scenic Trail is ready to be build in the spring of 2014 said selectmen at their meeting last week.

The 1.7-mile long trail will extend from the Agway store on Route 3 near the Mosquito Bridge to the Laconia city line. It will run behind the Belknap Mall and will provide walking and bicycle route into Laconia and will cost $755,872 — 80 percent of which is being reimbursed by a N.H. Department of Transportation Highway Grant.

The Laconia City Council voted Monday night to approve a package of seven downtown enhancement projects that include extending the city's WOW Trail from Veterans Square to Fair Street. Private trail supporters say they will soon have sufficient funds to complete the trail from that point to Belmont, which will mean about nearly four continuous miles of walking and bicycling trails in the two communities.

There are two articles that will appear on Belmont's Annual Town Meeting warrant that must be approved so the Belmont portion of the trail can be completed. No new additional taxpayer money is needed, however one article will require voters to re-purpose about $62,000 raised years ago by voters for a second phase of the trail that will not likely be built in the near future.

According to Planning Administrator Rick Ball, each year for three years in the mid 2000s, voters agreed to put $20,000 a year into a Capital Reserve Fund for Phase II of the trail.

Town officials said the $62,000 that is in that account must be applied to Phase 1 in order to complete it. The re-purposing of a capital account requires a 2/3 majority vote but will not require any additional money to be raised by taxpayers.

In additional voters will be asked to "gross appropriate" or raise an appropriate the sun of $142,050 for the trail — all of which is already available.

Ball said that a yes vote on both of the two warrant articles will allow the trail to be built in 2014.

He said the state Department of Transportation agreed that the Phase II money can be used to complete Phase I but the hurdle is conveying the message to the voters to the degree that they will give the town the 2/3 majority it needs to take the money from Phase II to Phase I.

Last Updated on Thursday, 26 December 2013 01:11

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