2007-784, DOUGLAS R. GUY, JR. v. TOWN OF TEMPLE

The petitioner, Douglas R. Guy, appeals an order of the

orally), for the respondent. Drescher & Dokmo, P.A., of Milford (Dwight D. Sowerby on the brief and

petitioner. to press. Errors may be reported by E-mail at the following address: Matthew W. Glavey, of New Ipswich, on the brief and orally for the

page is: http://www.courts.state.nh.us/supreme. v.

editorial errors in order that corrections may be made before the opinion goes No. 2007-784 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Hillsborough-southern judicial district Readers are requested to notify the Reporter, Supreme Court of New ___________________________

THE SUPREME COURT OF NEW HAMPSHIRE

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 22 as the $25.00 fee.” The Board also advised him that by signing the application he p. 2 letter, the Board requested that he “complete the application and return it with

“a copy of RSA 236:11 through 236:129 pertaining to junk yards.” In the

evidence that a grandfathered use existed at said premises. application, per [his] request, for a motor vehicle junkyard permit,” as well as which included the following findings of fact:

Neither party appealed this order.

state licensing and regulation.

license valid” for one year. rehearing reinforced the applicant’s original contention and On August 2, 2001, the Board sent Guy a letter enclosing “an initial statute provided that “the legislative body shall issue [the junkyard] owner a conforming status to [Guy]’s automotive-related activities on” the property, was located. RSA 267-A:13 (1966). Upon receipt of that application, the under the Temple Zoning Ordinance and under New Hampshire RSA 674:19.” enterprise is a grandfathered/non-conforming use and is therefore protected Based upon these findings, the ZBA concluded that Guy’s “commercial

body work/garage, public [5. The junkyard phase of the commercial enterprise is subject to

4. New testimony, documents, and photographs presented at the ZBA issued an order reversing the Board’s denial of “grandfathered/nonthe junkyard’s location to “the legislative body” of the town where the junkyard. . . .

2. Said activities have continued since then through the present.

adoption of the Temple Zoning Ordinance in 1972. does not conform to the provisions of this ordinance . . . .” sic] existed at [the property] prior to the adoption of this ordinance may be continued indefinitely, although such use 1. A commercial enterprise including auto repair/junkyard/auto

denied his application, Guy appealed to the ZBA. On October 12, 1999, the other things, submit an application containing various information regarding certification that he was in compliance with local zoning laws. After the Board chapter 267-A (1966), required owners of established junkyards to, among (Board), requesting both a license to conduct state automobile inspections and state laws on this subject . . . .” At that time, the state law on the subject, RSA In 1999, Guy filed an application with the Temple Board of Selectmen

“[a]ny lawful use of land or buildings or parts thereof at the time of the

ordinance, which mandated that all “[m]otor vehicle junkyards . . . abide by the In 1972, the Town of Temple (Town) adopted a comprehensive zoning violation of both Temple’s Zoning ordinance and State of NH RSA’s.

p. 3 State Statutes.

State statutes. To date you have not complied; you are therefore in your auto repair business. thereby the requirement of the 1999 ZBA decision to “grandfather”

violation of the above referenced Temple Zoning ordinance and

you of this ZBA requirement and attached copies of the relevant original site plan.” (RSA 236). The Board . . . subsequently wrote to you reminding discuss your plan to comply with the State’s junkyard statutes and compliance with Temple’s Zoning ordinance and State statutes

As to the junkyard license, the Board stated: license which the [Board is] unable to approve because you are in application for motor vehicle dealer plates constituted an expansion of a non- After receiving this letter, Guy appealed the Board’s “determination that his

decision in support of his position. contested the Board’s determination and submitted a copy of the 1999 ZBA constituted an expansion of [his] non-conforming use.” The same day, Guy moved, expanded on, or enlarged [his junkyard] to occupy more area than [his] Please schedule an appointment to meet with the [Board] to “received confirmation of ‘Grandfathered’ status from the” ZBA and had “not included a requirement that you bring your junkyard into Furthermore, in filing the application, Guy was required to affirm that he had

his non-conforming use and, thus, Guy needed “to file for a special exception.” We are now in receipt of your application for a junkyard

responded on March 8, 2006, informing him that his “request for dealer plates

The 1999 ZBA decision to “grandfather” your auto repair business 236:123, and all other provisions of RSA 236 relative to junkyards.”

license, the Board found that the selling of motor vehicles was an expansion of vehicle dealer license and a junkyard license. With respect to the vehicle dealer On April 19, 2006, the Board sent Guy a letter denying his requests for a

junkyard until 2006, when Guy applied for a vehicle dealer license. The Board

that [his] junkyard . . . is in compliance with all the requirements of RSA junkyard license with the Board. The application form required Guy to “affirm Shortly thereafter, Guy, for the first time, filed an application for a

There were no further communications between the parties regarding the

Guy asserts that he never received this correspondence. would be “affirming that [he] me[t] all the provisions of the State of NH RSA’s.” p. 4 (Supp. 2007).

the application requirements for a new junkyard as provided in RSA 236:115 that, in order to continue operation of his junkyard, Guy had to comply with 2007), the junkyard constituted a nuisance. Accordingly, the Board declared

ZBA.

continue [his] junkyard operation” and, as provided by RSA 236:119 (Supp.

licensing records of the only other junkyard in Temple, which indicated that

Guy appealed the Board’s April 19, 2006 and May 23, 2006 decisions to the his junkyard operation. After the Board denied his motion for reconsideration, to any applicable historic district commission oversight, in order to continue

steps required under the applicable statute[s] to protect [his] vested right to 1999 ZBA decision. Therefore, the Board found that Guy had “not taken the junkyard “ha[d] been expanded, without benefit of permit or license,” since the until 2001 at the earliest. At the same time, however, Guy’s counsel submitted

Board concluded that Guy was required to obtain a special exception, subject that was designated on the tax rolls as current use property. the Town argued that the junkyard had been expanded since 1999 into an area

decision and New Hampshire law. Moreover, the Board asserted that Guy’s fee and, even if it could, the Town did not have an application process in place upon his junkyard that could not be stripped away for failing to pay a license 1999. He further argued that the 1999 decision vested non-conforming status

applicable State Statutes in a timely fashion.” Because Guy had lost his non- not complied with either state statute or the 1999 ZBA decision.” In addition, permitted non-conforming use for reason of [Guy’s] failure to comply with the

in RSA 236:111 through RSA 236:129, as required by both the 1999 ZBA license and demonstrate his compliance with the requirements for a junkyard omitted.) In support thereof, the Board stated that Guy had failed to obtain a rather than expanded, the number and location of cars on the property since RSA 79-A:1 (2003). Guy, in contrast, asserted that he had actually contracted,

enjoyed a grandfathered status, has now lost it . . . [because] the junkyard has junkyard operation referred to in the 1999 ZBA decision is no longer a hearing, the Town contended, among other things, “that the junkyard, if it ever The ZBA held a public hearing on the matter on October 5, 2006. At that

creation, establishment and/or maintenance of a junkyard.” (Emphasis

already indicated in the notice of violation, it was of the opinion “that the “declin[ing] to entertain [his] permit request.” The Board explained that, as On June 23, 2006, the Board sent Guy another letter, stating that it was

“cease and desist any and all activities on [his property] consisting of the

On May 23, 2006, the Board issued a notice of violation, ordering Guy to

a hearing on the matter for July 6, 2006. conforming use requiring a special exception” to the ZBA. The ZBA scheduled that the 1999 decision did not license [Guy]’s junkyard. . . .

p. 5 enclosing an application for a junkyard license, further suggesting

indicates that on August 2, 2001, the Board sent [Guy] a letter law in 1972, it could not be lawful. . . . Further, the record be lawful. Because [Guy]’s junkyard was not licensed under state

following basis: wasn’t licensed.” Ultimately, the ZBA affirmed the Board’s decision on the junkyard that was grandfathered in 1999, it was an illegal one because it it would have been incorrect, given that nonconforming uses must

“members noted that RSA 236:125 came into being in 1966, so if there was a determined that [Guy]’s junkyard was a valid nonconforming use, been licensed. Even if the ZBA, in the 1999 decision, had There is no indication that any junkyard on the property has ever

needed to get the junkyard licensed” in the 1999 decision. Finally, the ZBA claim that the Town did not have a formal junkyard licensing process; (2) show that it was his opinion that the ZBA members had “simply noted that [Guy] trial court ruled that Guy had failed to: (1) present any evidence to support his station.” He stated that the “the junkyard wasn’t an issue at that time” and State law requiring junkyard licensure has existed since 1965. . . .

Temple Zoning Ordinance.

substantial part, upon its interpretation of the 1999 decision. In addition, the whether Guy’s property could “be grandfathered so he could have an inspection the junkyard is subject to state law and licensing requirements.

have an allowable non-conforming use by the definition in the

The trial court then rejected the majority of Guy’s arguments based, in ZBA in 1999, also told the rest of the members that the only issue in 1999 was and how many there were then.” ZBA member Don Kraemer, who was on the property for a junkyard operation because the decision states that located . . . and how many there are as well as where they were located in 1999

superior court. On October 10, 2007, the court ruled:

lawful use, the use is not grandfathered. The applicant does not Temple Zoning Ordinance that a non-conforming use refers to a an unlawful fashion. Therefore, based on the language of the

The 1999 decision did not “grandfather’’ [Guy]’s usage of the discussion the ZBA members “spent a lot of time talking about where cars are

After the ZBA denied his motion for rehearing, Guy appealed to the

The applicant’s junkyard has, at least since 1999, been operated in

to discuss the matter. As indicated in the ZBA’s minutes, during the ensuing

After listening to the parties’ arguments, the ZBA entered closed session

2004, 2005 and 200 p. 6 6. that junkyard had submitted applications for the years 1993, 2000, 2003, 6

related activities on” the property. Nowhere in the decision is this expansive Board’s denial of “grandfathered/non-conforming status to [Guy]’s automotive- In the 1999 decision, the ZBA broadly stated that it was reversing the unconstitutional taking of [his] property.” which we review violated [his] constitutional right of due process resulting in an determinations therein. We agree. contends that the trial court erred in questioning the validity of the ZBA’s the 1999 decision. Because the Town failed to appeal the ZBA’s decision, Guy the ZBA expressly found that his junkyard was a valid nonconforming use in the . . . [Board] to issue [him] a motor vehicle junkyard license in 200 p. 6 6”; and Guy argues first that, despite the trial court’s findings to the contrary, contention that the provisions of RSA 236:125 and related case law required

arguments. (decided July 2, 2008). With these principles in mind, we turn to Guy’s

de novo. See In re Guardianship of Luong, 157 N.H. ____, ____

However, the interpretation of a tribunal’s order presents a question of law, [him] under state law, unreasonably interfered with [his] occupation, [and] ZBA’s decision was unreasonable. Town of Chester, 152 N.H. at 580. finds by the balance of probabilities, based upon the evidence before it, that the reasonable. Id.; see RSA p. 6 677:6 (2008). It may set aside a ZBA decision if it trial court must treat all factual findings of the ZBA as prima facie lawful and & Gun Club v. Town of Chester, 152 N.H. 577, 580 (2005). For its part, the to apply the doctrines of collateral estoppel and laches”; (5) “rejecting [his] unless the evidence does not support it or it is legally erroneous. Chester Rod Warner, 152 N.H. 74, 77 (2005). We will uphold the trial court’s decision Our review of zoning board decisions is limited. Harrington v. Town of

because it was not properly licensed”; (3) “rejecting [his] claim that the [T]own

license in 200 p. 6 6, or afford [him] a hearing thereon, breached [its] obligation to (6) “rejecting [his] claim that the Board’s failure to issue [him] a junkyard unconstitutional taking of his property.” that the Board “violated his constitutional right of due process, resulting in an doctrine of laches applicable; and (3) articulate sufficient support for his claim sporadically enforced up to the time enforcement action was taken”; (4) “failing that the [T]own ever implemented a procedure thereafter, such process was . . . did not have a formal licensing process in effect in 1999, and to the extent

junkyard to be a valid nonconforming use”; (2) “finding [his] junkyard unlawful (1) “finding that the 1999 decision . . . did not determine [his] motor vehicle On appeal, Guy asserts that the trial court committed reversible error by:

unreasonable, or that he suffered prejudice as a result, such as to make the that the Town’s alleged delay in enforcing the licensing requirements was structures or uses, thereby creating a vested right to continue the p. 7 by providing that zoning ordinances shall not apply to existing

nonconforming use.

of collateral estoppel. been resolved and the order was not appealed, would run afoul of the doctrine

enactment of a zoning ordinance. RSA 674:19 protects that right

1999 decision and hold that Guy’s junkyard has been determined to be a valid

subsequently divested of that status. As we have previously explained: 7 was a valid nonconforming use, we must now assess whether the junkyard was

1999 decision. To do so here, where, as indicated above, the issue has already

enjoying their property when their uses were lawful prior to the ordinances, so that property owners may continue using and junkyard was a valid nonconforming use is invalid and must be overturned. bars consideration of this claim. Accordingly, we accept the findings in the property owners from a retrospective application of zoning omitted)). We therefore agree with Guy that the doctrine of collateral estoppel The right to maintain nonconforming uses is meant to protect issue or fact actually litigated and determined in the prior action.” (quotation

Having determined that the 1999 decision established that the junkyard

use.” II the commercial enterprise that it found to be “a grandfathered/non-conforming such an assertion would invariably require us to revisit the substance of the

operation,” again references the junkyard as a “phase of the ordinance.” Thus, the Town argues, any finding in the 1999 decision that the

to a prior action, or a person in privity with such a party, from relitigating any (“In its most basic formulation, the doctrine of collateral estoppel bars a party

alters the fact that the ZBA clearly envisioned the junkyard as a component of Even assuming the Town is correct that the ZBA so erred, to entertain

1999 decision did not ‘grandfather’ [Guy]’s usage of the property for a junkyard permissible only where it legally exists at the date of the adoption of the zoning licensed and “[t]he law is well established that a nonconforming use is ruling that the [junkyard] was grandfathered because” the junkyard was not The Town argues that the ZBA was nevertheless precluded “from legally

that “[t]he junkyard . . . is subject to state licensing and regulation,” in no way enterprise” in question. (Emphasis added.) That the 1999 decision also noted

Indeed, the very sentence relied upon by the trial court in concluding that “the enterprise is a grandfathered/non-conforming use.” (Emphases added.) repair/ junkyard /auto body work/garage” activities and that that “commercial the ZBA clarified that Guy’s “commercial enterprise includ[ed] auto holding qualified in such a way as to exclude the junkyard. To the contrary, payment of any back licensing fees.” p. 8 nonconforming use status because such failure “can be easily remedied by procedure in place; and (2) the failure to obtain a license does not obviate

provide sufficient evidence to prove this claim. zone.” D. Mandelker, nonconforming status because: (1) the Town did not have a formal licensing not unreasonable for the ZBA and the trial court to conclude that Guy failed to nonconforming use “because the power to license is distinct from the power to had a licensing scheme in place during the pertinent years. It was, therefore,

issued, but asserts that his junkyard nevertheless maintains its held that the failure to obtain a license does not terminate a valid that he has not obtained a license for his junkyard since the 1999 decision was 2006. This evidence supports, rather than contradicts, a finding that the Town requirement that he “obtain a state license under RSA 236:114.” Guy concedes

this precise issue, the majority of courts that have considered the matter have submitted license applications in, at least, 1993, 2000, 2003, 2004, 2005 and comply with a licensing statute. Although we have not before been faced with impermissible. nonconforming use because Guy failed to comply with state law, including the whether a valid nonconforming use can be divested for an owner’s failure to changes the nature and purpose of the nonconforming use is Guy’s second argument raises a more complex question; namely,

. . . .” (quotation omitted)). (“The party seeking to set aside the ZBA decision bears the burden of proof 580; Malachy Glen Assocs. v. Town of Chichester, 155 N.H. 102, 105 (2007)

have a formal licensing process indicates that the other junkyard in the Town conforming use.” The Town argues first that the junkyard is no longer a valid evidence he has provided in support of his contention that the Town did not proof. Therefore, an extension and enlargement that substantially Resolution of Guy’s first argument requires little discussion. The only

can be lost if the use is “discontinued for two years” or “superseded by a proposed use is not new or impermissible bears the burden of or enlarge[ment]” of a nonconforming use and states that a nonconforming use the continuance of such uses, and the party asserting that a In this case, the Town’s zoning ordinance bars “substantial[] expan[sion] nonconforming uses, we strictly construe provisions that permit taking of property”). that “[a]n ordinance prohibiting a change in a nonconforming use is not a also D. Mandelker, Land Use Law § 5.79, at 5-75 (5th ed. 2003) (explaining Town of Salem v. Wickson, 146 N.H. 328, 330 (2001) (quotations omitted); see

however, is to carefully limit the extension and enlargement of prior lawful use of land. Because the general policy of zoning law, conducted. p. 9 nonconforming status of the land upon which such an activity is being

operation.”

regulate an activity will not adversely affect the previously determined

the licensing scheme offended “so meaningfully curtail[s] the use to which land

operation or with limitation or distribution or outright suppression of

agree with the majority of courts that the failure to obtain a license designed to

licensing laws, however, the rationale supporting its application weakens when Because the rule is founded upon the distinction between zoning and

use status as junkyards”); community growth,” licensing regulations are generally “concerned with proper

840 N.Y.S.2d at 166 (quotation and emphasis omitted). For these reasons, we nonconforming use). Costa, failure to obtain a license does not render the use unlawful in the sense location.” Dembo, 719 A.2d at 1011 (quotations omitted). As a result, “the business they conduct, and zoning [laws] regulate[] them based on their nonconforming status by failing to maintain a valid mining permit), words, licensing laws typically “regulate[] establishments based on the type of

Primm v. City of Reno, 252 P.2d 835, 839 (Nev. 1953). In other

to obtain a license to operate “did not disqualify the sites from nonconforming which “is primarily concerned with uniformity of land use and stability of planning do not render the type of use unlawful.”); Like these courts, we are cognizant of the fact that, unlike zoning law

where the defect . . . can be easily remedied”); failure to obtain license for his salvage yard did not invalidate his Gerovac, 197 N.W.2d 772, 773-74 (Wis. 1972) (finding that property owner’s law”); dismissed in part, denied in part, 756 N.E.2d 72 (N.Y. 2001); City of Franklin v. accorded under zoning laws simply by its failure to comply with a licensing appeal N.Y.S.2d 246, 248 (App. Div. 1998) (gravel pit owner did not lose

N.Y.S.2d 163, 166-67 (App. Div. 2007) (holding that a junkyard owner’s failure license); Costa v. Callahan, 840 N.W.2d 138, 141 (Minn. 1984) (“Violations of ordinances unrelated to land use

statute sought to prevent disposal of stolen vehicles); destroyed . . . by any failure to comply with local or State licensing provisions 1969) (holding that mobile home park’s nonconforming use status was “not Board of Selectmen of Wrentham v. Monson, 247 N.E.2d 364, 365 (Mass.

(holding “that a property owner will not lose its nonconforming use status license); Baltimore v. Dembo, 719 A.2d 1007, 1011 (Md. Ct. Spec. App. 1998) nonconforming use because of failure of prior owner to renew occupation App. 1997) (holding that an automotive repair center did not lose its

Dempsey v. Newport Bd. of Adjustments, 941 S.W.2d 483, 486 (Ky. Ct.

home park maintains its nonconforming status despite owner’s failure to renew of Adjustment, 218 N.W.2d 645, 648 (Iowa 1974) (explaining how a mobile

property owner’s failure to obtain license to operate his junkyard where the N.E.2d 1344, 1347-8 (Ill. App. Ct. 1982) (finding nonconforming use despite subdivision (new junkyards),

p. 10 license: one for junkyards established after the date of passage of the (1993). The statute provides two distinct processes for obtaining the required and “a certificate of approval for the location of the junk yard.” RSA 236:114

a junkyard without first obtaining “a license to operate a junk yard business”

the statute prohibits an individual from operating, establishing, or maintaining industry within the state.” RSA 236:111 (Supp. 2007). To achieve this end, people of the state through encouragement to the development of the tourist

morals, and welfare, and to further the economic growth and stability of the

junkyards), police power of the state to conserve and safeguard the public safety, health, see RSA 236:125 (1993). The trial court ruled that the date of the protective status of a valid nonconforming use.” 2007), and one for junkyards “already established” on that date (established with the requirements of the [ordinance] . . . preclude[d] them from acquiring see RSA 236:114-:118, :120, :121 (1993 & Supp. the words of a statute when considered as a whole.

legislative intent. abandonment of a pre-existing nonconforming use. legislature did not see fit to include.

In this case, the junkyard licensing statute was “adopted under the

zoning ordinance,” the court held that the junkyard owners’ “failure to comply Doyle, 156 N.H. at 308. However, we are the final arbiters of the legislature’s intent as it is expressed in

Franklin v. Town of Newport, 151 N.H. 508, 509 (2004). feet from any park, bathing beach, school, church or cemetery.” plain and unambiguous, we do not look beyond it for further indication of

regulations that failure to comply with its terms might rise to the level of an Id. When the language of a statute is consider what the legislature might have said, or add language that the conceivable that a licensing scheme could be so closely aligned with zoning statute as written. State v. Doyle, 156 N.H. 306, 308 (2007). We will not ordinary meaning to the words used and discern the legislative intent from the When interpreting the language of a statute, we ascribe the plain and

236:111-:129. junkyard therefore requires analysis of the applicable licensing law. See RSA of land “to such an extent . . . that it could well be designated as a quasi- Guy’s failure to obtain a license will affect the nonconforming use status of his Tp., 402 A.2d 318, 320 (Pa. Commw. Ct. 1979). Determination of whether

junkyard that had not yet been deemed a nonconforming use, it is at least Although O’Rourke is distinguishable to the extent that it involved a

A.2d at 180. After determining that the licensing regulation controlled the use

pursuant to an ordinance that required a licensed junkyard to be, among other instance, in O’Rourke, a junkyard owner had failed to obtain a license 180 (R.I. 1968); cf. In re Chamberlain, 360 A.2d 100, 101-02 (Vt. 1976). For regulates the utilization of land.” Town of Scituate v. O’Rourke, 239 A.2d 176, may be employed . . . as to be deemed the equivalent of an ordinance which location and aesthetic requirements that are imposed upon the approval of a of class IV, class V and class VI highways. p. 11 “approved by the local governing body,” RSA 236:125 effectively renders the highways or located less than 300 feet from the right-of-way lines the right-of-way lines of class I, class II, class III or class III-a

license.” RSA 236:125. By deeming the location of established junkyards yard or automotive recycling yard located less than 660 feet from

located and the owner of the yard considered suitable for the issuance of a are considered approved by the local governing body of the municipality where other causes. In no case may a license be granted for a new junk junkyard licensing statute,] the location of junk yards . . . already established

morals by reason of offensive or unhealthy odors or smoke, or of contrast, is less exacting. This is largely because, “[f]or the purposes of [the reasonably prevented from affecting the public health, safety, or and whether or not the use of that proposed location can be for any type of larceny or receiving stolen goods . . . .” RSA 236:117 (1993). 11 regulations concerning the proposed junk yard . . ., to any record of convictions

established by the department of environmental services.”

The process for obtaining a license for an “established” junkyard, in hospitals, public buildings or other places of public gatherings; RSA 236:118 (1993). with the fencing requirements [under RSA 236:123 (1993)] or other reasonable

from view.” RSA 236:120 (1993). Moreover, the statute also commands that: whether there are “natural or artificial barriers protecting the junk yard . . . and “[c]ertification of compliance with best management practices [as]

surrounding property, such as the proximity of churches, schools, shall take into account the nature and development of consider “the suitability of the applicant with reference to his ability to comply In passing upon the application, . . . [the local governing body]

instance, prior to granting a license the legislative body is required to consider must provide “[a] description of the land to be included within the junk yard” to obtain a license. RSA 236:115 (Supp. 2007). In that application, the owner contains certain location requirements. See O’Rourke, 239 A.2d at 180. For body of the municipality where it is proposed to locate the junk yard” in order In addition, as in O’Rourke, the licensing process for new junkyards

resolving this case.

whether to grant or deny the application, the legislative body is required to

subdivision,” the owner is required to apply “in writing to the local governing With regard to junkyards established after the date of “passage of the

directly challenged this ruling in their briefs, we accept it for purposes of “passage of the subdivision” is April 20, 1981. Because neither party has potential liability for a penalty, p. 12 requirements in the statute, the failure to comply opens the junkyard owner to

another restriction on established junkyards and, as with all other

licensing process for new junkyards. Instead, that sentence simply imposes failure to submit such an application is to subject established junkyards to the license fee . . . .” But nothing in that language suggests that the remedy for

to that licensing scheme has divested him of his nonconforming use status.

any type of larceny or of receiving stolen goods,” use. information as to location which is required in an application, together with the obtain a license does not divest his junkyard of its status as a nonconforming because RSA 236:125 is applicable in this case, we hold that Guy’s failure to

use he may have had by unlawfully expanding his use “onto a lot that was not junkyards is quasi-zoning and, thus, Guy’s failure to obtain a license pursuant The Town also argues that Guy lost whatever right to a nonconforming

Cf. Carroll, 431 N.E.2d at 1348. RSA 236:121, II (Supp. 2007); (5) that the applicant has not been “convicted of this subdivision, however, the owner shall furnish the local governing body the the department of environmental services for the automobile salvage industry,” “certification of compliance with best management practices [as] established by injunction to end the violation,” RSA 236:128 (Supp. 2007). Accordingly, right to “initiate proceedings” to, among other things, seek a “mandatory is a “quasi-zoning” statute, see RSA 236:127 (1999), and gives the Town the

RSA 236:125. Moreover, the Town contends that the licensing process for new information as to location which is required in an application,” as mandated by for a new junkyard because he failed to “furnish the local governing body the second sentence of RSA 236:125 states: “Within 60 days from the passage of RSA 236:125 is inapplicable in this case. To be sure, as the Town notes, the (3) compliance with certain fencing requirements, RSA 236:123, :125; (4) with the Town that the licensing process for established junkyards provided in

We need not pass upon whether the licensing process for new junkyards

junkyards, and not “uniformity of land use and stability of community growth.”

the Town argues that Guy is subject to the more stringent licensing procedure on the date of “passage of the subdivision.” See RSA 236:125. Nevertheless, The Town does not dispute that Guy’s junkyard was already established information as to location which is required in an application,” RSA 236:125; 236:122 (Supp. 2007); (2) the submission to the local governing body of “the established junkyards is a pure licensing scheme. a license for an established junkyard is: (1) the payment of a license fee, RSA Primm, 252 P.2d at 839. As a result, the law governing the licensing of

each of these requirements is concerned with the “proper operation” of [has] not become a public nuisance,” id. Unlike the regulation in O’Rourke,

considerations out of the equation, all that the statute requires for approval of license for a new junkyard inapplicable to existing junkyards. With those power to zone and to license are “distinct powers that do not conflict with each p. 13 circumvention of licensing laws. As already discussed at length above, the

him a license because RSA 236:125 states that upon payment of “the license

status does not confer upon its holder an unfettered right to operate in

nonconforming use. Second, he asserts that the Town was required to issue the manner or operation of use” of the property);

respects – with other applicable laws and ordinances”). Nonconforming use

vested in the Board” when it held in 1999 that his junkyard was a this issue. First, he argues that “the ZBA assumed the licensing authority operate a business and comply with “later police power regulations governing unclear, there appear to be two separate components to Guy’s argument on

(explaining that nonconforming uses “remain[] obligated to comply – in all by the trial court, “[t]he 2006 ZBA findings of fact make no mention of any Costa, 840 N.Y.S.2d at 167 where cars are located . . . and how many there are” in the junkyard, as noted obtained nonconforming use status is still required to obtain a license to neighborhood of the purported expansion, [Board] to issue [him] a motor vehicle junkyard license in 2006.” Although it is See, e.g., Dembo, 719 A.2d at 1015 (holding that a landowner who has unclear”), let alone the character, nature, scope or effect on the surrounding To the extent that Guy is arguing that he is entitled to a license by mere

established” junkyards. (Emphasis added.) We disagree with both arguments. fee . . . the local governing body shall issue a license” to all “already opinion. Accordingly, we must remand this issue for proceedings consistent with this

ZBA hearing mention that the ZBA members “spent a lot of time talking about

that the provisions of RSA 236:125 and related case law required the . . . and remand the matter because it found the text of the [ZBA] decision Guy argues next that the trial court erred in “rejecting [his] contention

to increase the volume, intensity or frequency of the nonconforming use”). change in the use’s effect on the neighborhood, the landowner will be allowed of Hampton v. Brust, 122 N.H. 463, 469 (1982) (“where there is no substantial when in conflict with” the state law). However, while the minutes of the 2006 see Wickson, 146 N.H. at 331; Town

remand to the ZBA appropriate where the superior court “intended to vacate Dummer Zoning Bd. of Adjustment, 155 N.H. 307, 310-11 (2007) (finding determined that Guy had expanded his nonconforming use, see Kalil v. Town of added.) We are therefore unable to ascertain whether the ZBA actually finding that [Guy] unlawfully expanded his junkyard operations.” (Emphasis

for the control of junk yards and explaining that such “ordinances shall control also RSA 236:124 (1993) (expressly permitting the adoption of local ordinances bars “substantial[] expan[sion] or enlarge[ment]” of a nonconforming use. See previously part of the operation.” As noted above, the Town’s zoning ordinance consideration.” p. 14 rights without support by legal argument or authority warrants extended

reference to constitutional claims nor off-hand invocations of constitutional

adverse rulings without developed legal argument, and neither passing repeatedly stated, “[j]udicial review is not warranted for complaints regarding violated” and to sufficiently develop any of these arguments. As we have

he is arguing that his substantive or procedural due process rights were

However, as stated by the trial court below, Guy has failed to “clarify whether due process claim, a substantive due process claim, and a takings claim. paragraph of argument that follows in his brief – are elements of a procedural

[his] property.” Lingering within this sweeping assertion – and the mere

constitutional right of due process resulting in an unconstitutional taking of license. law, unreasonably interfered with [his] occupation, [and] violated [his] afford [him] a hearing thereon, breached [its] obligation to [him] under state

Appeal of Omega Entm’t, 156 N.H. 282, 287 (2007); State v.

order to obtain a license to operate his junkyard, as well as a renewal of such must therefore comply with all of the requirements in the licensing statute in claim that the Board’s failure to issue [him] a junkyard license in 2006, or subdivision including the fencing requirements set forth in RSA 236:123.” Guy

governing body statute. Although it states that upon payment of “the license fee . . . the local

protection to it. Guy’s remaining contention is that the trial court erred by “rejecting [his] legally be carried on in the district, the zoning law . . . furnishes no required in an application” and “comply with all other provisions of this reasons apart from the zoning law why the business may not IV

795 (2005), is inapposite and we decline to further address it. cited by Guy in support of this argument, Greene v. Town of Deering, 151 N.H. license. Guy’s argument on this point ignores the express language of the this subdivision are complied with during the license period”). The only case upon payment of the annual license fee without a hearing, if all provisions of

See RSA 236:121, II (providing that “[l]icenses shall be renewed . . .

must “furnish the local governing body the information as to location which is that may not be expressly excluded therefrom, and if there are 236:125 also explicitly provides that the owner of an established junkyard

shall issue [the applicant] a license,” (emphasis added), RSA

Nor do we agree that RSA 236:125 required the Town to issue Guy a

Marshall v. Holbrook, 177 N.E. 504, 506 (Mass. 1931).

legislative sanction to carry on in a district every kind of business [a] zoning ordinance is not in its legal effect like a license or

2000). Therefore, other.” Willow Creek Ranch v. Town of Shelby, 611 N.W.2d 693, 700 (Wis. p. 15 15

warrant further discussion.

remaining arguments presented in this appeal are without merit and do not

BRODERICK, C.J., and DALIANIS, GALWAY and HICKS, JJ., concurred.

consideration). We therefore decline to address this argument further. The supported by neither argument nor authority warrant no extended 494, 499 (1988) (stating that “off-hand invocations” of constitutional rights constitutional claim renders the argument waived); Keenan v. Fearon, 130 N.H. Chick, 141 N.H. 503, 504 (1996) (explaining that a mere passing reference to a