2006-860, GUILDHALL SAND & GRAVEL, LLC v. TOWN OF GOSHEN

The plaintiff, Guildhall Sand & Gravel, LLC, appeals, and

Government Center, as amicus curiae. C. Christine Fillmore, of Concord, by brief, for the New Hampshire Local

on the brief and orally), for defendant Town of Goshen. Gardner, Fulton & Waugh, P.L.L.C., of Lebanon (H. Bernard Waugh, Jr.

Alexander on the brief, and Mr. Alexander orally), for the plaintiff. to press. Errors may be reported by E-mail at the following address: Ransmeier & Spellman, P.C., of Concord (Timothy E. Britain and John T.

editorial errors in order that corrections may be made before the opinion goes No. 2006-860 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Sullivan Readers are requested to notify the Reporter, Supreme Court of New ___________________________

THE SUPREME COURT OF NEW HAMPSHIRE

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. Opinions are available on the Internet by 9:00

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

which the parties agree: that the superior court erred by not ruling upon the Bearing in mind these general principles, we begin with the point upon

dealing with that field runs counter to the state statutory scheme. Id. control in the State’s hands. Id. In such circumstances, municipal legislation demonstrates legislative intent to preempt that field by placing exclusive comprehensive state statutory scheme governing a particular field legislative intent underlying a statutory scheme. Id. Generally, a detailed and preempted if it expressly contradicts state law or if it runs counter to the Town of Colebrook, 149 N.H. 767, 770 ( p. 2 2003). Municipal legislation is cannot regulate a field that has been preempted by the State. JTR Colebrook v. Inc. v. Town of Carroll, 141 N.H. 402, 405 (1996). It is well-settled that towns expressly or impliedly granted to them by the legislature. Arthur Whitcomb, Towns are subdivisions of the State and have only such powers as are

A. Preemption and Excavation Regulations excavation. developed to render rulings on the eighteen remaining sections that pertain to II. Discussion preempted by RSA chapter 155-E, but that the record was not sufficiently motion in part, holding that three sections of the Town’s ordinance were chapter 155-E. ordinance provisions, but contends that none of them is preempted by RSA agrees that the court erred by failing to rule upon the validity of all of the concluding that they all are preempted by RSA chapter 155-E. The Town ruling upon the validity of all of the ordinance provisions and by not On appeal, the plaintiff contends that the superior court erred by not

motions for summary judgment. The superior court granted the plaintiff’s p. 2 2006) and are therefore unenforceable. The plaintiff and the Town filed crossexcavation regulations are preempted by RSA chapter 155-E (2002 & Supp. action, seeking to have the superior court declare that the Town’s new In anticipation of this renewal, the plaintiff filed a declaratory judgment

which were enacted after the plaintiff received the p. 2 2004 permit. permit, its application will be subject to the Town’s new excavation regulations, permit, which will expire during 2007. When the plaintiff applies to renew the 1950’s. On March 20, 2004, the Town issued to the plaintiff an excavation business, which is located in Goshen and has been in operation since the The facts are not in dispute. The plaintiff owns a commercial excavation

I. Background excavations that do not require a permit. p. 3 excavations that require a permit whereas the express standards apply to operational and reclamation standards. The minimum standards apply to 155-E:4-a ( p. 2 2002), :5 (2002) and :5-a (2002) set forth “minimum” and “express” “reasonably necessary to carry out the provisions of this chapter.” Finally, RSA

would review

RSA 155-E:11 (Supp. 2006) allows the regulator to adopt regulations

are preempted by RSA chapter 155-E constitutes a question of law, which we

regulator’s decision, and enforcing the requirements of RSA chapter 155-E. application, holding hearings on applications, issuing permits, appealing a (2002) and :10 (2002) describe the processes for amending a permit whether to grant the permit. RSA 155-E:6 (2002), :7 (Supp. 2006), :8 (2002), :9

excavation regulations. However, whether the Town’s excavation regulations superior court erred by not ruling upon the validity of all of the Town’s development is not necessary to resolve this textual inquiry. Accordingly, the

limitations of RSA 155-E:4 (2002), the regulator is authorized to decide county commissioners. RSA 155-E:1, III (Supp. 2006). Subject to the legislature did not see fit to include. locality’s planning board, board of selectmen, zoning board of adjustment or RSA 155-E:3. Depending upon the circumstances, the regulator is either the used. the local “regulator” applications that contain certain required information. See RSA 155-E:2, :2-a. In order to obtain a permit, applicants must submit to excavation projects not specifically enumerated in the statute require a permit. not be found to impermissibly contradict the other. Further factual highway excavations, among others. See RSA 155-E:2, :2-a (2002). All other certain types of existing excavations, stationary manufacturing plants, and RSA 155-E:2 (2002). Excavation projects that do not require a permit include between p. 3 excavations that require a permit and those that do not. See, e.g., We first describe the contours of the statute. The statute distinguishes

not consider what the legislature might have said or add language that the Id. We interpret legislative intent from the statute as written and will language of a statute, we ascribe the plain and ordinary meaning to the words of Town of Bethlehem, 154 N.H. 314, 319 (2006). When examining the intent as expressed in the words of the statute considered as a whole. Appeal statute. The end result of that analysis necessarily will be that one will or will matters of statutory interpretation, we are the final arbiters of the legislature’s analysis that involves scrutinizing the text of the ordinance and the text of the Deciding this question requires us to interpret RSA chapter 155-E. In state law or run counter to the legislative intent – calls for a purely legal superior court to decide it on remand. (2005); thus, we now decide the preemption question rather than direct the

de novo, Carlisle v. Frisbie Mem. Hosp., 152 N.H. 762, 770

this case – whether the Town’s excavation regulations expressly contradict validity of all of the Town’s ordinance provisions. The question presented by that are less stringent than those imposed by the State, are given no effect.

p. 4 course, means that municipal requirements (for excavations requiring permits) standards,” this language unambiguously supports our analysis. It also, of those in RSA chapter 155-E and underscoring the absolute nature of “express

E:11, I. By acknowledging that local regulations may be more stringent than

applicability of express standards under RSA 155-E:2, I, III, and IV.” RSA 155controlling, except that no local regulation shall supersede the sole applications and issue the required permits. provision which imposes the greater restriction or higher standard shall be

RSA chapter 155-E, local officials – the “regulator” – evaluate the permit “Whenever . . . local regulations differ from the provisions of this chapter, the Another aspect of the scheme also supports our analysis. Pursuant to

See RSA 155-E:4, :4-a, :5, :5-a.

stringent regulations upon those types of excavations. permit, it follows that municipalities are not preempted from imposing more

issues before us, the statute also provides, in pertinent part, including adopting a permit fee schedule.”). Significant for purposes of the may be reasonably necessary to carry out the provisions of this chapter, regulations. RSA 155-E:11, I (“The regulator may adopt such regulations as Indeed, the statute authorizes local regulators to promulgate their own

155-E contains only “minimum” requirements for excavations that require a words.”). Thus, because the legislature has clearly stated that RSA chapter and presume that the legislature did not enact superfluous or redundant (2002) (“When construing a statute, we must give effect to all words in a statute See Winnacunnet Coop. Sch. Dist. v. Town of Seabrook, 148 N.H. 519, 525-26 the type of excavation, there would be no need to use the word “minimum.” particular, absolute or express standards on a statewide basis, regardless of statute advisedly.” (quotation omitted)). If the legislature wanted to set is presumed to know the meaning of words, and to have used the words of a Pennichuck Corp. v. City of Nashua, 152 N.H. 729, 735 (2005) (“The legislature required in the case of excavations that do not require a permit. See the phrase “express standards” indicates a set of standards that are statutorily stringent standards may be imposed upon excavations that require a permit, things). Whereas the phrase “minimum standards” indicates that more that where legislature uses two different words, it generally means two different permits differ. See Fischer v. Hooper, 143 N.H. 585, 588 (1999) (explaining standards applied to excavations requiring permits and those not requiring (Emphasis added.) These two phrases evince a legislative intent that the standards” and “express standards” in RSA 155-E:4-a and :5 is telling. making this determination, the legislature’s use of the phrases “minimum intended to preempt the entire field of excavation regulation. For purposes of We now determine whether, by enacting this scheme, the legislature p. 5 1989 law. 5

communities and residents.

paragraph II leaves no doubt as to the correctness of our holding today. exempt projects, which may be subject to more “stringent” local regulation,

clarify the special exception criteria set forth in the

141 N.H. at 406, requires us to conclude that the Town’s excavation The plaintiff, however, contends that our holding in costly litigation and other negative impacts on local Arthur Whitcomb, unintended policy consequences have resulted in

enactment took effect, various technical problems and

projects, which are subject to the express regulations of the statute, and non- Laws 1991, 310:1 (emphasis added). By distinguishing between permit-exempt

operating procedures and reclamation, and to further with powers to ensure environmentally sound site enacted in the 1989 law and to provide local regulators clarify certain technical and legal uncertainties permits are required. The act is also intended to Hampshire. In the intervening period since the 1989 standards more stringent in circumstances where at the local level with clear powers to make such standards set forth in the act and to provide regulators permits under the law but are subject to the express definitions of excavations which are exempt from II. The purpose of this act is to further clarify the

included a statement of purpose, providing: enacted House Bill 742, which generally amended RSA chapter 155-E, it ascertain legislative intent). For example, in 1991, when the legislature to legislative history and the circumstances of a statute’s enactment to

the citizens and taxpayers of the state of New

legislature’s intention,” availability of construction material for the benefit of

express purpose of which were to enhance the amendments to RSA 155-E were enacted in 1989, the

of excavations. I. The general court finds that extensive

determining whether legislature intends to preempt a field, it is proper to look (1987), the legislative history also provides compelling clues. See id. at 103 (in

Although “[t]he words in the statute itself are the touchstone of the

surprising that the legislature authorized municipalities to regulate these types level of local control and involvement in the permitting process, it is not in its brief, the plaintiff concedes that water resource protection is “one area for 6 p. 6 Regulations protecting water resources need not be purely procedural. In fact, municipality’s local water resources management and protection plan . . . .” provisions for the protection of water resources, consistent with the

II, which provides that municipal regulations “may include reasonable RSA 155-E:11, II, states that such regulations permitting process. The plaintiff’s argument is undermined by RSA 155-E:11, 155-E:11, I, its argument is not supported by the plain language of the statute. procedural – but not substantive – regulations pertaining to the excavation asserts is the more general rule against substantive regulations found in RSA 155-E:11, I. chapter,” manifests a legislative intent to allow municipalities to enact this case are not “reasonably necessary” as a substantive matter. See RSA because the plaintiff does not argue that the particular regulations at issue in regulations, as the Town did here. And with that conclusion, our inquiry ends the statutory scheme envisions that municipalities will promulgate substantive language to the statute. Bethlehem, 154 N.H. at 319. Thus, we conclude that general rule or exception as claimed by the plaintiff and we refuse to add area. Accordingly, nothing in the text of RSA 155-E:11 bespeaks any type of water resources. It in no way limits the regulations to that single substantive requirements. may include measures to protect

regulations for the protection of water resources are an exception to what it to adopt regulations “reasonably necessary to carry out the provisions of th[e] Although the plaintiff contends that RSA 155-E:11, II, means that

substantive regulation.” (Emphasis added.)

municipalities to burden that type of excavation with their own substantive language but correctly reasoned that RSA chapter 155-E does not authorize regulating the permit-exempt manufacturing plant at issue, we used broad

The plaintiff also argues that RSA 155-E:11, I, which allows the regulator

holding applies only to permit-exempt excavations. Thus, while we do not retreat from Arthur Whitcomb, we do clarify that its be made or drawn between permit-exempt and permit-requiring excavations. Whitcomb, though, did not require us to consider whether a distinction should

See Arthur Whitcomb, 141 N.H. at 408. Deciding Arthur

analyzing whether the legislature intended to preempt the Town of Carroll from expressly exempt from having to obtain a permit. See RSA 155-E:2, III. In Whitcomb, however, involved a stationary manufacturing plant, which is constitutes a comprehensive, detailed regulatory scheme,” id. at 406. Arthur chapter 155-E, governing the operation and reclamation of excavations, intended to preempt the field of excavation, id. at 409, and observed that “RSA regulations are preempted. In Arthur Whitcomb, we held that the legislature p. 7 7

Town’s ordinance does just that and is therefore not preempted. to impose regulations more stringent than those contained in the statute. The

BRODERICK, C.J., and DALIANIS, GALWAY and HICKS, JJ., concurred. not preempted and the superior court erred in reaching a contrary conclusion. It follows that the more stringent requirements set forth in the ordinance are Reversed and remanded. within the scope of permissible municipal regulation under RSA chapter 155-E. requiring a permit. By limiting itself in this way, the ordinance fits snugly

authorizes municipalities, in the context of excavations that require a permit, For the foregoing reasons, we conclude that RSA chapter 155-E

regulations.” Thus, by its own terms, the ordinance applies only to excavations exempted from permits under RSA 155-E:2 and :2-a, are exempt from these material on the same land where it is excavated, as well as those excavations authority under RSA 155-E. Excavation for a land-owner’s personal use of “appl[ies] solely to commercial excavations over which the Planning Board has they would be preempted. However, the ordinance expressly provides that it not require a permit, then, consistent with our holding in Arthur Whitcomb, RSA chapter 155-E. If these sections purported to regulate excavations that do establish setback requirements that are more stringent than those contained in section III, 4-a, B of the Town’s ordinance are preempted because they The superior court ruled that section III, 4, A, section III, 4-a, A and

B. The Town’s Ordinance