2004-847, BIO ENERGY, LLC & a. v. TOWN OF HOPKINTON

and remand. (town), regarding operation of the facility. We affirm in part, reverse in part, and a cease and desist order issued by the defendant Town of Hopkinton and demolition debris woodchips as a source of fuel in its co - generation facility, (Fitzgerald, J.) pertaining to Bio Energy, LLC’s proposed use of construction BRODERICK, C.J. The parties appeal decisions of the Superior Court

on the brief) as amicus curiae. New Hampshire Municipal Association, of Concord (Cordell A. Johnston

Serge on the brief, and Mr. Hilliard orally), for the defendant. Upton & Hatfield, LLP, of Concord (Russell F. Hilliard and Matt hew R.

& a. on the brief, and Mr. Donovan orally), for the plaintiffs. Sheehan Phinney Bass + Green, P.A., of Manchester (William J. Donovan

No. 20 04 - 847 Merrimack

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. O pinions are available on the Internet by 9:00 Errors may be reported by E - mail at the following address: errors in order that corrections may be made before the opinion goes to press. Hampshire, One Noble Drive, Concord, New Hampshire 03301, of any editorial Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

cleaned. other material following c onstruction and demolition activities and then woodchips are woodchip fuel prepared from wood that has been separated from source has increased over the years as a lower cost source of fuel. C & D use of construction and demolition woodchips (C & D woodchips) as a fuel respond to changing environmental regulations and economic conditions. Its Bio Energy has continually modified and adjusted its fuel source to

facility, including on its fuel use and fuel mixtures. the Title V pe rmitting program, which places limitations on Bio Energy’s Toxic Control Act, RSA chapter 1 p. 2 25 - I (2005). In the 1990’s, DES established Pollution Control Act, RSA chapter 125 - C (2005 & Supp. 2005), and the Air New Hampshire Department of Environmental Services (DES) under the Air Agency (EPA) under the Clean Air Act, 42 U.S.C. §§ 7401 et seq., and by the Bio Energy’s emissions are regulated by the Environmental Protection

used. did not place any limitation upon the source or nature of the wood fuel to be source, not the source or nature of th e fuel. In granting the variance, the ZBA between Bio Energy and the ZBA focused upon the proper storage of the fuel variance to construct and operate the wood co - generation facility. Discussions In March 1983, Bio Energy appeared before the ZBA to request a

separate condition was placed upon the source of the fuel to be used. Energy’s receipt of necessary State and federal environmental permits. No standards.” The board conditioned site plan approval for the facility upon Bio in any event, the company “would have t o conform with air pollution defin[i]te plan [was] to burn woodchips.” The representative acknowledged that stated that “they had talked about the possibility of burning rubber but the Energy] want to burn pelletized tires” was raised. Bio Energy’s representative of whether the facility would “always burn woodchips or at some point will [Bio site plan approval. At the public hearing on Bio Energy’s application, the issue In February 1983, Bio Energy appeared before the planning board for

planning board in order to construct and operate its facili ty. the town’s zoning board of adjustment (ZBA) and site - plan approval from the use of wood co - generation, Bio Energy was required to obtain a variance from located in the town’s Industrial M - 1 zone, which does not expressly allow the Service of New Hampshire and other utility companies. Because the facility is woodchips to generate steam and electricity. The electricity is sold to Public co - generation f acility in Hopkinton. The business involves the combustion of Since 1983, plaintiff Bio Energy, LLC (Bio Energy) has operated a wood

selectmen stated that “[t]he Town now has every reason to conclude . . . that “any factor such as significant lead or similar emi ssions into the air.” The new permit, asserting that the 198 p. 3 3 variance did not contain allowance for desist order if Bio Energy did not apply to the ZBA or the planning board for a hearing, the selectmen info rmed Bio Energy that they would issue a cease and Bio Energy from utilizing C & D woodchips as a fuel source. Following a public the selectmen requesting the issuance of a cease and desist order to prevent In September 2003, several residents of Hopkinton filed a petition with

permit allowing Bio Energy to burn C & D woodchips. proposed revised permit and a public hearing in the town, DES issued a Title V In July 200 p. 3 3, after a review period that included public notice of the

the woodchips prior to combustion. quality of the C & D woodchips that enter the facility and the management of The permit program, overseen by the solid waste division of DES, regulates the application with the State for a permit to use C & D woodchips in its fuel mix. C & D debris. Pursuant to DES permitting requirements, Bio Energy filed an a modified Title V permit to allow it to burn up to 100% woodchips derived from In July 2002, Bio Energy applied to the air resources division of DES for

(Emphasis and ellipsis omitted.)

acce ptable to both parties. BioEnergy taking a percentage of our C & D and to negotiate a rate Transfer Station Superintendent to discuss the possibility of cordially extends an invitation to meet with them, and their p lywood together with clean woodchips. The Board of Selectmen the permit, this would enable BioEnergy to burn painted wood and Waste Permit from the State of New Hampshire. As we understand helping in whatever way we could, your application for a Solid Our o ffice has been watching with great interest and we hope, also,

& D material. As the letter stated: requesting a meeting to establish whether Bio Energy could accept the town’s C selectmen to Bio Energy supporting its plan to use C & D woodchips and In Janua ry 2002, the town administrator sent a letter on behalf of the

issued by the board of selectmen (selectmen) on December 10, 2001. be able to use woodchips derived from C & D wood. The building permit was application, Bio Energy informed the town that it was doing the work so as to wood fuel storage area to the power plant. In submi tting the building permit for a building permit to mechanize the delivery of C & D woodchips from the In December 2001, Bio Energy applied to the town’s building inspector p. 4 4

the town’s counterclaim for injunctive relief and denied Bio Energy’s request for require the granting of a new variance. In April 200 p. 4 4, the trial court dismissed change in use resulting from Bio Energy’s use of C & D woodchips did not on the basis that the town lacked authority to issue it, and ruled that the In March 2004, the trial court vacated the town’s cease and desist order

Bio Energy to cease any operations involving the burning of C & D woodchips. and costs, the town sought injunctive rel ief in the form of an order directing ordinance. In addition to seeking various findings, as well as attorney’s fees uses allowed under the 1983 variance and was in violation of the town’s zoning impermissible chan ge in use because it was beyond the scope of permitted that Bio Energy’s use of C & D woodchips as a fuel source constituted an lawfulness of the cease and desist order. The town counterclaimed, asserting taking of its land; and ( p. 4 4) legal fees and costs associated with litigating the woodchips; (3) monetary damages based on the town’s unconstitutional p artial permanent injunction to prevent the town from regulating its use of C & D zoning ordinance against Bio Energy’s use of C & D woodchips; (2) a and that the legal doctrine of pr eemption barred the town from enforcing the it was authorized to proceed with construction under its 2001 building permit, declaratory judgment that the town’s cease and desist order was unlawful, that injunctive relief and damages against the town. Bio Energy sought: (1) a In December 2003, Bio Energy filed a petition for declaratory and

obtained. unless and until all necessary approvals and permits have been days to the effect that you will not undertake any such activities corrective action required i s a statement by you within seven (7) Ordinance, which does not permit such a use in any zone. The any activity in this regard violates the Hopkinton Zoning scope the burning of construction or demolition debris, and thus variance issued for this f acility in 1983 did not include within its [of Selectmen] determined, on October 7, 2003, that the existing As to the burning of construction or demolition debris, the Board

the building permit issued on December 10, 2001. West Hopkinto n, NH, and from any further activity pursuant to construction or demolition debris at the Bio Energy facility in desist from any activity in connection with the burning of Pursuant to RSA 676:17 - a, you are hereby ordered to cease and

Energy, which provided: In November 2003, the selectmen issued a cease and desist order to Bio

to apply for a new permit.” the change in fuel constitutes a change in use and, therefore, the requirement p. 5 5

that RSA c hapter 12 p. 5 5 - C expressly reserved for the State the authority to contrary to the variance it received from the town in 1983. Bio Energy argues prevent Bio Energy from operating its wood co - generation facility in a manner control over land use issues; specifically, issuing a cease and desist order to preempted by State air emissions statutes, RSA chapter 125 - C, from ex ercising The town first argues that the trial court erred in ruling that it is

party.” Tilton v. Dougherty, 126 N.H. 294, 296 (198 p. 5 5). reasonable inferen ces therefrom in the light most favorable to the nonmoving 562, 564 (1991). “[W]e take as true all facts well pleaded, and construe all construction that would permit recovery.” LaRoche, Adm’r v. Doe, 134 N.H. whether or not the plaintiff’s allegations are reasonably susceptible of a “The standard this court applies in reviewing a motion to d ismiss is

December 2001 building permit. We review these issues in order. failing to rule on its claim that it had not acted outside the scope of the unconstitutional taking and its request for attorney’s fees and costs; and (2) by arguing that the trial court erred: (1) in dismissing its claim of an requiring Bio Energy to obtain new local permits. Bio Energy cross - appeals, derived from C & D debris as a fuel source constituted a change of use, thereby local land use issues; and (2) in dismissing its claim that the use of woodchips was preempted by State air emissions statutes from exercising control over On appeal, the town argues that the trial court erred: (1) in ruling that it

Empl. Security, 118 N.H. 6 73, 67 p. 5 5 (1978). will, therefore, resolve the legal issues presented. See Royer v. State Dep’t of despite the moratorium, the case involves a “pressing public interest” and we (quotati on omitted). Our review of the parties’ memoranda convinces us that, become academic or dead.” Petition of Brooks, 140 N.H. 813, 816 (1996) The doctrine of mootness is designed to avoid deciding issues that “have ripe for judicial review and whether any or all of the issues on appeal are moot. submit memoranda addressing whether any or all of the i ssues on appeal are by incineration until July 1, 2006. We accordingly directed the parties to established a moratorium on the disposal of construction and demolition waste have revoked one of Bio Energy’s operating permits and that the legislature had After oral argument before this court, we became aware that DES may

These appeals followed. not yet attempted to regulate any portion of Bio Energy’s three - phase plan. to Bio Energy’s existing fa cility was not ripe for review because the town had 2004, the trial court ruled that the issue of the construction and modification granted the town’s motion to dismiss Bio Energy’s takings claim. In November permanent injunctive relief against the town. In October 2004, the trial court p. 6 6

and abatement program. It broadly regulates “[a]ir contaminant[s],” RSA 125 - The statute establishes authority to develop a comprehensive regulatory

State. statewide permitting program to monitor ambient air quality throughout the The chapter contains twenty - one sections defining and establishing in detail a

natural attractions of the state. development of this state and to facilitate the enjoyment of the convenience of the people, promote the economic and social physical property and other resourc es, foster the comfort and prevent injury or detriment to human, plant, and animal life, state so as to promote the public health, welfare, and safety, maintain a reasonable degree of purity of the air resources of the Hampshire and the purpose of this chapter to achieve and It is hereby declared to be the public policy of the state of New

The declaration of policy and purpose in RSA 125 - C:1 provides:

Appeal of Coastal Materials Corp., 130 N.H. 98, 105 - 0 p. 6 6 (1987). the authority to investigate and take action in resp onse to regulatory violations, Ferris Indus. of N.H., 141 N.H. 355, 364 (1996); and whether the agency has and technical specifics of the State’s regulations, Town of Pelham v. Browning Technology v. Town of Merrim ack, 126 N.H. 45, 49 (1985); the level of detail public hearings on any proposal affecting a municipality, Applied Chemical v. Town of Carroll, 141 N.H. 402, 406 (1996); whether the statute contemplates of th e application process necessary to obtain a permit, Arthur Whitcomb, Inc. JTR Colebrook v. Town of Colebrook, 149 N.H. 767, 769 - 71 (2003); the extent regulatory authority evinces an intent to regulate the entire field in question, looks to: whether the expressed purpose of the statute and the grant of To determine whether a statutory scheme is comp rehensive, the court

statutory scheme evinces legislative intent to supersede local regulation.” Id. preemption may be found when the comprehensiveness and detail of the State Bethlehem, 150 N.H. p. 6 606, 611 (2004) (quotation and ellipsis omitted). “Implied act is preempted by state law or policy.” N. Country Envtl. Servs. v. Town of and construction – whether local authority to regulate under a zoning enabling “The s tate preemption issue is essentially one of statutory interpretation

unlawfully attempts to regulate in a preempted field. directly contrary to the express provisions of RSA chapter 125 - C and of the cease and desist order based upon concerns regarding air emissions is exclusively regulate the field of ai r quality control; and that the town’s issuance and comprehensive and on its face demonstrates the intent of the legislature to regulate air emissions; that the statutory and regulatory scheme is detailed p. 7 7

150 N.H. at 611; see Wasserman v. City of Lebanon, 124 N.H. 538, 542 - 43 will be preempted when it frustrates the statute’s purpose.” N. Country Envtl., “Even when a local ordinance does not expressly conflict with a State statute, it preempted by the State.” JTR Colebrook, 149 N.H. at p. 7 770 (quotation om itted). “It is well settled that towns cannot regulate a field that has been

preempting the field of air pollution control in this State. chapter 125 - C const itutes a comprehensive and detailed regulatory scheme intent to occupy it.” N. Country Envtl., 150 N.H. at 615. We hold that RSA p. 7 770. “Such exhaustive treatment of the field ordinarily manifests legislative by placing exclusive control in the State’s hands.” JTR Colebrook, 149 N.H. at governing a particular field demonstrates legislative intent to preempt that field “Generally, a detailed and comprehensive State statutory scheme

the statute and regulations. RSA 125 - C:13; RSA 125 - C:6, XIV. investigate and take corrective act ion against operations not in compliance with suspension, revocation or modification of a permit, authorizing DES to Additionally, the statute contains detailed criteria for the denial,

the maximum emissions limits set by DES and DHHS. 1401.01. Bio Energy is required to demonstrate th at its operations are within reduce human exposure to toxic air pollutants. See N.H. Admin. Rules, Env – A department of health and human services (DHHS) to restrict pollution and Rules, Env – A 1400. Am bient air limits are set by DES in conjunction with the pollutant emitted by a regulated facility. RSA 125 - I:5 (2005); N.H. Admin. compliance with established ambient air levels for any regulated toxic air The Title V permitting program reviews a facility’s air emissions to ensure

Env – A 600 et se q. any “major. . . source” of air emissions. RSA 125 - C:11; N.H. Admin. Rules, et seq., DES enacted the Title V permitting program to regulate the operation of rulemaking authority and the mandates of the Clean Air Act, 42 U.S.C. §§ p. 7 7401 material modification of air pollution devices and sources.” Pursuant to its statewide permitting system for the “construction, installation, operation or RSA 125 - C:6, XIV requires the commissioner to establish and operate a

RSA 125 - C:6, XIII. plan or implement programs for the control and abatement of air pollution,” subdivisions of the state and enter[ into] agreements with said subdivisions to “[c]oordinat[e] and regulat[e] the air pollution control programs of political prevention, and abatement of air poll ution,” RSA 125 - C:6, II; and (2) “develop[ ] a comprehensive program and provide services for the study, DES extensive rule - making authority, RSA 125 - C:4, and the authority to: (1) C:2, II, and “air pollution,” RSA 125 - C:2, III. It also grants the commissioner of p. 8 8

State.” Stablex Corp., 122 N.H. at 1104. without exclusionary effect, may validly be applied to a facility approved by the facility would be subjected and which are administered in good faith and and sewage removal, signs, and other related subjects, to which any industrial as traffic and roads, landscaping and building specifications, snow, garbage, (quotation omitted). Of course, “[a]ny local regulations relating to such matters of the local law actually conflict with the statewide legislation.” Id. at 773 is inconsistent with the state’s transcendent interest, whether or not the t erms “Where the state has preempted the field, local law regulating the same subject emissions produced by Bio Energy’s operation of its co - generation facility. that the town had no authority to issue a cease and d esist order based upon “to the vagaries of local regulation.” JTR Colebrook, 149 N.H. at 771. It follows detailed guidelines,” intended to leave the ultimate regulation of air pollution “We regard it as highly improbable tha t the legislature, after establishing

authority to interfere with air regulatory matters as the Town did here.” conclusion “that the legislature intended to provide municipalities with the of the specific statutory provisions referenced by the town support the may encourage municipalities to participate in the rule making process,” none We agree with the trial court that “although various sections of [the statute]

and frustrates its purpose. the to wn an impermissible veto power over the . . . Title V program V [permit] from [DES] to burn such debris would amount to granting burn C & D debris, when Bio Energy has already been granted a Title Thus, to require Bio Energy to apply for a new variance in order to inference and indicates a minimal role, at most, for municipalities. creating air standards, such language is derived only through contain some language indicating some degree of local involvement in creation of air policy throughout the state. Although the statute does does not contain any express authorizati on for local control over the

As the trial court ruled, RSA chapter 125 - C

N.H. 1091, 1101 (19 p. 8 82). authority” to regulate air pollution. Stablex Corp. v. Town of Hooksett, 122 that the citie s and towns in this State have been given “concurrent affirmative repugnant to the letter or purpose of RSA Chapter 125 - C.” We do not agree regulation in the field of air emissions, and because the Town’s actions are not materials because the applicable legislation authorizes additional municipal obtain a new variance prior to burning wood chips derived fr om C & D The town argues that it “is not preempted from requiring Bio Energy to

actions or ordinances will be allowed to contravene it). (1 p. 9 9 p. 8 84) (wh ere State has enacted a comprehensive regulatory scheme, no local 9

included waste wood from forestry and lumbering operations, and other waste fuel mix of woodchips from a wide range of waste wood sources. These have For the better p art of the past twenty years, Bio Energy has utilized a

146 N.H. at 353 - 54. was imposed at the grant of the variance itself. See N. Country Envtl. Servs., will not impose implied limitations upon a variance where no such limitation nature of the woodchip s to be used as fuel in the co - generation facility. A court planning board nor the ZBA approvals imposed a condition upon the source or raised the possibility of burning rubber chips. In addition, neither the “pure woodchips.” Bio Energy represented that it would burn “woodchips” and The 1 p. 9 983 ZBA and planning board meeting minutes do not m ention

change in the preexisting use.” Id. at 468. undertaking remains unchanged largely determines whether there has been a Id. at 467 - 68. “The degree to which the original nature and purpose of the

substantially different effect on the neighborhood. character, nature and kind; [and] (3) does this use have a of utilizing the same use or does it constitute a use different in prevailing nonconforming use; (2) is it merely a different manner does the use in question reflect the nature and pu rpose of the be given to, among others, the following factors: (1) to what extent the established or acquired nonconforming use consideration may In deciding whether the particular activity is within the scope of

(1 p. 9 970). one is on the party asserting it.” New London v. Leskiewicz, 110 N.H. 462, 467 in question is fundamentally the same use and not a new and impermissible Wickson, 146 N.H. 328, 330 (2001). “The burden of establishing that the use and purpose of the nonconforming use is impermissible.” Town of Salem v. “[A]n extension and enlargement that substantially changes the nature

Energy’s operation.” prevailing nonconforming use and represents an illegal expansion of Bio dangerous, toxic substance departs f rom the nature and purpose of the as its fuel source, and that the subsequent change in fuel source “to a more Energy represented that its co - generation facility “was to use pure wood chips” The town argue s that during the initial ZBA and planning board hearings, Bio debris constitutes a change in use from that permitted by the 1 p. 9 983 variance. dismissing its claim that Bio Energy’s use of woodchips derived from C & D The second issue raised by the town is whether the trial court erred in

govern mental decision making [or appeals to the superior court] must be borne the value of the subject property that occurs during the pendency of to review and reverse the Town’s decision. . . . In that regard, ‘[a]ny decrease in noted that “Bio Energy has successfully opted on its right to petition the Court in 1983 and that such activity was injurious to the public.” The court also such activity was outside the scope of the variance that it issued to Bio Energy restricting Bio Energy from burning C & D debris . . . because it believed that the use of its property. Rather, the Town issued the . . . cease and desist order Town did not create a new ordinance and permanently restrict Bio Energy from The trial court, in denying Bio Energy’s takings claim, reasoned that “the

of Wolfeboro, 137 N.H. 1, p. 10 10 (1993). resulted from misconstruction of otherwise valid restrictions.” Dumont v. Town mistaken board decision does not effect a taking when the erroneous decision materially from technically precise applications of invalid ordinances; a decisions based on mistaken int erpretations of valid regulations differ N.H. 590, 598 (1981) (quotation omitted). However, “[e]rroneous board requiring the payment of just compensation.” Burrows v. City of Keene, 121 constitutes a taking within the meaning of our New Hampshire Constitution economically viable use of his land in order to benefit the public in some way unreasonable restrictions which substantially deprive the owner of the land.” Smith v. Town of Wolfeboro, 136 N.H. 337, 345 (1992). “[A]rbitrary or particular parcel denies the owner an economi cally viable use of his or her pt. I, art. 12. “A ‘taking’ occurs when the application of a regulation to a property shall be taken from him . . . without his own consent.” N.H. CONST. The New Ha mpshire Constitution provides that “no part of a man’s

unreasonable or arbitrary, interpretation of Bio Energy’s variance. ruling that the town’s conduct was the result of a mistaken, but not Energy’s vested property rights. Bio Energy argues that the trial court erred in unreasonable’ manner,” thereby resulting in an uncons titutional taking of Bio property, the Town ‘abused its discretion’ and acted in an ‘arbitrary and in a manner that deprived Bio Energy of an economically viable use of its asserts that “by overstep ping its authority and regulating in a preempted field Bio Energy raises three issues in its cross - appeal. First, Bio Energy

the 1983 variance. substantially change the nature and purpose of the original use permitted by 468. We hol d that the use of woodchips from C & D materials does not utilizing the same use,” i.e., wood co - generation. See Leskiewicz, p. 11 1 p. 10 10 N.H. at woodchips derived from C & D materials is “merely a different manner of woodchips from C & D wood, and pulp chips. Bio Energy’s increased use of woods such as shavings, sawdust, chipped pallets, chipped plywood, 11

any, local regulations are applicable to the project. town’s planning board or ZBA, no review has taken place to determin e which, if that because Bio Energy had not submitted its plan for site plan review to the construction/modification plan for its co - generation facility. The town asserted doctrine of preemption bars the town from regulating its three phase building permit. Bio Energy requested that the trial court rule whether the Energy’s claim that it has not acted outside the scope of the December 2001 Finally, we con sider whether the trial court erred by failing to rule on Bio

Assoc., 142 N.H. 874, 878 (1998), and is, therefore, ripe for review. adjudicated on an adequately developed record,” Appeal of State Employees’ the town’s issuance of the cease and desist order is “capable of being Bio Energy is entitled to reasonable attorney’s fees and cos ts associated with the dismissal of this issue and remand to the trial court. The issue whether agreement whereby Bio Energy would burn the town’s C & D debris, we reverse part of twenty years, and that the town actively sought to enter into an materials, as approved by the State and federal governments, for the better has, with the town’s knowledge, utilized woodchips derived from C & D g rounded in fact.” Given that the record before us establishes that Bio Energy information and belief formed after reasonable inquiry or was not well order was frivolous, was commenced in bad faith, or was not based upon attorneys fees to be paid by the municipality” if “it appears to the court that the dismissed, the trial court “shall order the defe ndant’s costs and reasonable Pursuant to RSA 676:17 - a, VII, when a cease and desist order is

ripe for review, thereby dismissing Bio Energy’s claim for legal fees. to reques t injunctive, declaratory, monetary and other equitable relief was not its order of November 10, 2004, the trial court ruled that Bio Energy’s petition request for attorney’s fees and costs under RSA 676:17 - a, VII (Supp. 2005). In Bio Energy next argues that the trial court erred by dismissing its

takin gs analysis. & D debris, its actions were not arbitrary and unreasonable in the context of a legal precedent at the time prohibiting the town from banning the burning of C improperly issued the cease and desist order, given the lack of any controlling We agree with the trial court’s ruling. Although th e selectmen

(Quoting Smith v. Town of Wolfeboro, 136 N.H. at 346.) by the property owner and does not give rise to a compensable taking.’” p. 12 12

NADEAU, DALIANIS, DUGGAN and GALWAY, JJ., concurred.

advisor y opinion which this Court may not give.” We find no error. apply such regulations. Any order on the issues raised would constitute an law that can only be analyzed and determined after the Town has attempted to applying regulations that run counter to the applicable statutes, is an issue of ripe for review. As the trial court reasoned, “[W]hether or n ot the Town is regulate solid waste or air emissions,” Bio Energy’s petition for relief was not that any permit required by the Town would frustrate the State’s authority to three phase construction/modification pla n, nor has Bio Energy demonstrated has not made any attempt to regulate any portion of Bio Energy’s proposed The trial court agreed with the town, concluding that because “the Town