The plaintiffs appeal from the granting by the Trial Court (DiClerieo, J.) of the defendants’ motion to dismiss their class action. They contend, inter alia, (1) that the trial court erred in finding that the plaintiffs did not establish the existence of contractual
The plaintiffs are property owners in the Village District of Eastman (VDE), which is comprised of adjacent sections of the towns of Grantham, Springfield, and Enfield; but they are not residents of those towns. They are also members of the Eastman Community Association (ECA), which is governed by a board of directors and the ECA Council. The ECA Council is a representative body elected by all Eastman property owners. The board of directors was initially elected by the incorporators at the organizational meeting, and members are thereafter elected by the ECA Council. Approximately ninety percent of all Eastman property owners are non-residents of the village. Plaintiff Chasan, a resident of Pennsylvania, owns two lots, one undeveloped and one with a vacation home. He also owns a one-half interest in an Eastman condominium.
Prior to February 15, 1981, the Eastman Water Company and the Eastman Golf Course were owned and operated by Controlled Environment Corporation, the original developer of Eastman. In 1980, the ECA offered to purchase the water company and the golf course from Controlled Environment. Before consummating the deal, the ECA Board of Directors sent a report to all Eastman property owners regarding the proposed purchase, which set forth, inter alia, the price terms of the agreement, along with a detailed explanation of these terms. In its description of the valuation of the water company, the report referred to certain assumptions and projections regarding operating costs and water fee revenues. The ECA board of directors recommended that the outright purchase of the golf course be financed by levying a special assessment against each lot. The revenue thus raised would be used as a down payment to secure interim financing. The ECA board also recommended in its report that a New Hampshire village district be formed pursuant to RSA 52:1 (Supp. 1985) to absorb the municipal functions of the ECA. The report suggested that once formed, the village district would be able to issue tax exempt bonds to cover the purchase price of the water company assets. On February 15, 1981, the ECA voted to approve the purchase of the golf course and water company, and to form the proposed village district.
Following the issuance of the special assessment, the golf course and water company assets were purchased. In accordance with the vote of the ECA Council, the registered voters among the Eastman
Plaintiff Chasan filed a class action in superior court on May 18, 1984, after his individual federal suit was dismissed for failure to state a federal claim. See Chasan v. Village District of Eastman,
Plaintiffs Granville, Lennox, Kovacs, Nicholas and Estey moved to intervene as co-plaintiffs. Their motions were granted, and in December, 1984, the defendants filed a motion to dismiss. After hearing oral argument and considering the complaint and certain other documents referred to by the parties, the court granted the motion. The plaintiffs’ appeal raises the following issues for our review: (1) whether it was procedurally proper for the trial court, in dismissing the plaintiffs’ action, to base its ruling upon documents submitted by the parties in addition to the complaint; (2) whether the trial court was substantively correct in its ruling that the vote of the ECA, in response to the report submitted by the ECA board, did not create a contract; (3) whether the scheme of development proposed by the ECA for the acquisition and financing of the water company and golf course, considered in conjunction with the covenants for Eastman, created an equitable servitude that was binding on the VDE; (4) whether the water rates, fees, and ad valorem taxes imposed by the VDE are violative of part I, article 12 of the New Hampshire Constitution; (5) whether RSA 52:1 requires that a petition presented to the selectmen of a town for purposes of establish
We reject at the outset the plaintiffs’ argument that the court erred in dismissing the complaint without an “evidentiary hearing,” after considering documents in addition to the pleadings. The plaintiffs were heard on the motion to dismiss, and were not denied any request to present evidence, and they cannot now complain of a lack of opportunity to be heard further, or to present additional evidence. Superior Court Rule 58 provides that in a hearing on a motion to dismiss, “all counsel shall be prepared ... to present all necessary evidence.” The plaintiffs’ argument that the trial court erred in not holding an additional “evidentiary hearing” is without merit. The plaintiffs had an opportunity to argue their case.
We next consider whether the trial court erred when it referred to documents submitted with the pleadings in formulating conclusions of law contrary to those alleged in the complaint. A hearing on a motion to dismiss is not, typically, a factual inquiry. M. Green, Basic Civil Procedure 108 (1972). Such a motion “challenge[s] the legal sufficiency of the facts which the opponent has alleged .... [I]t admits . . . that the facts alleged are true, but it avoids the conclusion the pleader wishes drawn from those facts by pointing out that the facts are insufficient under the law to constitute a cause of action.. ..” Id.; see Hartman v. Town of Hooksett,
Ultimately, “the test of the validity of a form of procedure is .. . whether or not it is what justice and convenience require.” Id. In this case, consideration of the VDE Council report, along with reference to the Covenants for Eastman, was required in order for
We do not agree with the plaintiffs that the trial court impermissibly refuted factual allegations of the complaint. While it is true that in ruling on a motion to dismiss, all facts properly pleaded are to be deemed true, and all reasonable inferences therefrom are to be construed in the light most favorable to the plaintiff, the plaintiff must nevertheless “plead sufficient facts to form a basis for the cause of action asserted . . . [The court] need not accept statements in the complaint which are merely conclusions of law.” Mt. Springs Water Co. v. Mt. Lakes Village Dist.
“Contrary to the allegations of the plaintiff, the report, as a matter of law, is insufficient on its face to constitute a contract. . . . The necessary elements of a contract have not been alleged. The mere fact that the ECA Council approved the acquisition does not... as a matter of law, create a contract.”
(Emphasis added.)
The plaintiffs’ reliance upon Cilley v. N.H. Ball Bearings,
An “offer must be so definite as to its material terms or require such definite terms in the acceptance that the promises and performances to be rendered by each party are reasonably certain.” Restatement of Contracts § 32. “[I]t is an expression by one party of his assent to certain definite terms ....” Corbin on Contracts § 11, at 23 (1963). We do not think that the language in the report submitted to the Eastman property owners gave rise to a power of acceptance in the plaintiffs. While language is not dispositive in determining whether or not a proposal constitutes an offer, it is worth noting that the report in this case does not itself purport to be an offer. Nowhere in the report does the word “offer” appear. Nor does the language of the report, either in its substance or tone, make any reference to an intention to be bound, or that it was employed in contemplation of legal consequences. Balfour v. Balfour, 2 K.B. 571, 579 (1919). Rather, the report merely purports to consist of “assumptions” and “projections” with respect to the rates and charges that the property owners might expect. The issuance of the report to the property owners was not the type of “act that leads the offeree reasonably to believe that a power to create a contract is conferred upon him.” Corbin, supra at 25. While it may be true that by voting to approve the report — by “accepting” the board’s “offer”— the property owners had the expectation that contractual obligations would result, we do not think such an expectation was reasonable. The “offer” was not definite in its terms, and did not contain language that would lead a reasonable person to believe that a power of acceptance had been created in the property owners.
The board report in this case is, we think, more in the nature of an expression of an opinion than an “offer” contemplating a contractual relationship. It is well settled that a mere expression of an opinion as to an expectation, however carefully calculated by the party rendering it, is not an offer. Hawkins v. McGee,
Further, any “offer” or “acceptance” in this case was not sufficiently bargained for. Consideration is essential to all contracts, Lang v. Johnson,
Indeed, even if the vote had created a contract, such a contract would certainly not have been binding on the VDE as a successor to the original Eastman Community Association in this case. The VDE was not even in existence at the time the vote took place. Nor is there any evidence on the record that the VDE, as a municipal entity, ever consented to be bound by any contract between the ECA and its members. It is well settled that an unconsenting successor is not bound by contracts between previous parties. American Fed’n Local 298 v. City of Manchester,
We next consider whether the scheme of development proposed by ECA for the acquisition and financing of the water company and golf course, considered in conjunction with the Covenants for Eastman, created an equitable servitude that was binding on the VDE, and whether the ad valorem tax and increased water charges violated any such servitude. The intent and promise to restrict the use of land are essential elements of an equitable servitude. Nashua Hospital v. Gage,
The plaintiffs have not referred to any specific provisions of either the Eastman covenants or the ECA plan in support of their equitable servitude claim. The Eastman Declaration of Covenants and Restrictions makes no reference whatever to any restriction on the formation of a village district to operate the water company and set rates. While article 7.5 of the Declaration of Covenants does provide in pertinent part that “no Owner shall be required to make payments on account of special assessments during any one year in excess of $120 for each lot or Living Unit owned,” these provisions are not violated by increased water charges by a subsequently formed municipality. The provisions do not expressly restrict either the means of operating the water company or the setting of water rates. “[A] provision in an instrument claimed to create ... a servitude is strictly construed, any doubt being resolved in favor of the free use of land.” Town of Vinton v. City of Roanoke,
The plaintiffs allege that the plan submitted to the ECA voters creates an equitable servitude, because the report “projects” that “[e]ach lot without a dwelling unit [will continue] to pay the current availability fee of $60 per year.” This argument is devoid of merit, for at least two reasons.
First, in order for an equitable servitude to arise, there must be a promise. “[A] ‘covenant’ is an agreement between two or more persons to do or permit the doing of a particular act.... It is a promise, an agreement or a contract... .” G. Thompson, Thompson on Real Property § 3150, at 59 (1962) (emphasis added). The language in the report is not promissory in nature, but is cast in the form of a “projection.” The language in the report does not purport
Second, the party that the plaintiffs would find to be under the alleged servitude is not a private party, but a municipality. We agree with the trial court that once the village district was formed, it had all of the authority provided by law to establish, assess and collect water charges. The law permitting the formation of such districts cannot be altered or amended by covenants between parties. Once the water company was acquired by the VDE, it became a public service company, and the State obtained “the power to regulate and control the franchise and to fix rates.” Town of Vinton v. City of Roanoke,
We now consider whether the water rates, fees, and ad valorem taxes imposed by the VDE violate part I, article 12 of the New Hampshire Constitution. It is well settled that special assessments upon property for the cost of public services are in violation of our constitution if they are in substantial excess of the benefits received. Manchester v. Straw,
We begin by noting that the public acts duly issued by the representative bodies of government will be accorded great weight in this court. A representative body is to be afforded deference in the calculation of benefits, Manchester v. Straw, supra at 393,
We do not think the calculation of the charges and the tax in this case was arbitrary or unreasonable in relation to the benefits received. The benefit obtained from having the water system available for future use, and the benefit derived from the presence of the water facilities in the village district, are benefits upon which the charges may be based.
We hold that the plaintiffs, having the burden to show dis-proportionality, Yencing, supra at 583,
We next turn our attention to the language of RSA 52:1 (Supp. 1986) to determine whether that statute requires, as the plaintiffs have alleged, that a petition to form a village district partly in a town, presented to the selectmen of that town, be signed by ten registered voters in the same town. The inquiry must begin with the statutory language itself. In re Robyn W.,
“[u]pon the petition of 10 or more legal voters, inhabitants of any village situated in one or more towns, the selectmen of the town or towns shall fix, by suitable boundaries, a district including such town or towns as may seem convenient____”
RSA 52:1 (Supp. 1986) (emphasis added). Clearly this language does not require the selectmen to be served with a petition signed by ten voters from their own town before they may act. The statute expressly provides that the voters of “any village” in “one or m,ore towns” may petition the selectmen. The plaintiffs have cited no cases or legislative history declaring that the statute should be construed otherwise. Absent an indication of legislative intent to the contrary, the language of the statute controls. Appeal of Concord Natural Gas
We do not agree with the plaintiffs that the statute construed according to its plain meaning is “contrary to all notions of representative government.” The entire statutory scheme, when viewed as a whole, “in harmony, with the law of which it forms a part,” State v. Millette,
We now reach the plaintiffs’ claim that under the circumstances of this case, RSA 670:3 deprives them of the right to vote, in violation of part I, article 1 of the New Hampshire Constitution. The. plaintiffs argue that because the VDE’s “sole purpose” is to supply water to property owners in Eastman, and that because Eastman property owners are as interested in the affairs of the VDE as are non-residents, it is irrational to deny voting rights to non-residents. We find this claim to be without merit.
It is well settled that the right to vote is not absolute. Levitt v. Attorney General,
*821 “No decision of this Court has extended the ‘one man, one vote’ principle to individuals residing beyond the geographic confines of the governmental entity concerned, be it the State or its political subdivision. On the contrary, our cases have uniformly recognized that a government unit may legitimately restrict the right to participate in its political processes to those who reside within its borders.”
Id.
Unlike the statute struck down by the United States Supreme Court in Dunn v. Blumstein,
We do not agree with the plaintiffs that RSA 670:3 is irrational or arbitrary as applied to this case merely because ninety percent of the property owners in Eastman are non-residents, who purchased in reliance on covenants and enjoy full participation in the affairs of the community association. These factors do not outweigh the legitimate policies inherent in RSA 670:3. The fact remains that the plaintiffs are not residents of the locality concerned. “The question is not where a person has a .. . desire to vote, . . . but where the law considers him best qualified to exercise his political rights and privileges.” Moore v. Teller,
“The object in prescribing residence as a qualification for the exercise of the right to suffrage ... is not merely for the purpose of identifying the voter and as a protection against fraud, but also that he should become in fact a*822 member of the community and as such have a common interest in all matters pertaining to its government.”
Id. A bona fide residency requirement serves as “a modicum of protection against those who . . . have no intention of establishing a permanent residence in the area, and hence have little incentive, interest or opportunity to become informed voters on the community needs.” Wright v. Davis Mountain Hospital District,
The plaintiffs argue that because non-resident property owners receive the EC A newsletter and certain special mailings, there is no reason to claim that non-residents are not well informed of VDE affairs. Receipt of miscellaneous “potpourri” contained in a community association mailing is not equivalent to the level of participation available to the permanent residents of a community involved in the day-to-day affairs of the political subdivision.
We reject the plaintiffs’ argument that the VDE is a “special limited purpose municipal district” in which voting rights should be determined by property ownership rather than residency. While it is true that the law elsewhere has recognized the existence of such districts, none has been created in this case. Such districts are the creatures of express statutory enactment. See Associated Enterprises Inc. v. Tottec Watershed Improvement District,
In closing, the plaintiffs in this case knew or should have known of the risks and uncertainties involved in proceeding upon the course of action of creating a village district in which only local residents would have the right to vote. In setting up a bona fide village district under appropriate statutory procedures, the plaintiffs apparently believed that their interests would thus be best served, particularly as to the issuance of bonds at favorable interest rates. Under the circumstances, however, there were no guarantees. The fact that their “plan” did not work quite as expected, and that their expectation was not perfectly realized, does not, without more, convert their expectation into a claim for legal or equitable relief.
Affirmed.