2007-662, CHRISTOPHER BENNETT & a. v. TOWN OF HAMPSTEAD; TOWN OF HAMPSTEAD v. CHRISTOPHER BENNETT & a.

No. 2007-662 Rockingham

Soule, Leslie, Kidder, Sayward & Loughman, P.L.L.C.

Sumner F. Kalman, Attorney at Law, P.C.

page is: http://www.courts.state.nh.us/supreme., of Salem (Diane M. a.m. on the morning of their release. The direct address of the court's home CHRISTOPHER BENNETT & reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 petitioners. v. Kalman and Thea S. Valvanis on the brief, and Mr. Kalman orally), for the TOWN OF HAMPSTEAD , of Plaistow (Sumner F.

to press. Errors may be reported by E-mail at the following address:

editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any 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 22 as parked outside” in the yard. She also learned that Bennett had two to three

p. 2 large trailers to transport tractors, two pickup trucks, and a backhoe all

large front-end loader, a large tractor, a bulldozer, a Bobcat, a skid steer, three other landscaping materials”; and (3) that there was “a large dump truck, a pavers and bricks, concrete partitions filled with different types of stone, and

piles of mulch, loam and compost were stored outside, as well as pallets with

Bennett property, eliminating visual screening of the operations”; (2) “[l]arge Specifically, she observed: (1) “that trees had been cleared in the rear of the inspections of Bennett’s property, and confirmed the abutter’s complaints.

continuing. In February and March, King conducted home occupation

Colleen King, to contact the abutter, who confirmed that the problems were In January 2006, Emerson asked the town’s code enforcement officer,

letter was never picked up from the post office.

commercial activity on site.” He wrote a letter to that effect to Bennett, but the

and determined that there appeared to be a “loam/composting operation – chief building official, Kristopher Emerson, viewed the property several times . . . which w[ere] visible from the abutter’s property.” In response, the town’s

the property had “unsightly stockpiles of loam, compost and other materials

materials,” coming from Bennett’s property. The abutter also complained that and dust from heavy machinery, [and a] smell of manure and composting In 2005, an abutter complained to the town that there was “noise, smoke

would not be injurious or obnoxious, and that the lot was screened from view.” two college students working during the summer, that the proposed business would be stored in the garage, that there would be one full-time employee plus

special exception, Bennett informed “the ZBA that fertilizer and other materials

landscaping and property maintenance business.” When applying for the

exception “to permit a home occupation – use of premises in connection with the town’s zoning board of adjustment (ZBA) granted Bennett a special a residential zone of the town that prohibits commercial uses. In June 1998, 2

Christopher and Alycia Bennett have owned and resided at property located in

The trial court found the following relevant facts. Since March 1998,

judgment action against the town. Accordingly, we affirm. were violated, Bennett is not entitled to attorney’s fees for its declaratory hold that, because the trial court did not find that Bennett’s due process rights

appeal two rulings by the Trial Court (McHugh

prevailed in its action for injunctive relief against the petitioners. We further

Bennett, Alycia Bennett, and Bennett Landscaping, Inc. (collectively Bennett), DUGGAN, J. In these consolidated cases, the petitioners, Christopher

attorney’s fees to the respondent, Town of Hampstead (town), because the town We hold that RSA 676:17, II (Supp. 2007) required the trial court to award

p. 3 a court action against you to remedy the violation, you

[U]nder RSA 676:17, should the Town have to initiate

remedy the violation.” The letter also advised Bennett:

days of [its] receipt of th[e] letter come up with an agreement with the Town to

that “to remedy the zoning violations, [Bennett needed to] within five business On May 1, 2006, the town’s attorney sent Bennett a letter informing it

from the property.

needed time to review its options and would not agree to remove the business 2006 to July 10, 2006.” By letter dated April 21, Bennett advised King that it the date of the Cease and Desist on your Home Occupation permit from May 5,

business needs with what is allowed by Hampstead Zoning, I agreed to amend

dated April 12, which stated: “In the spirit of cooperation and balancing your

After Mr. Bennett met with King later that day, King wrote a letter to Bennett

Thursday, April 13, 2006.

The application deadline for the May [ZBA] meeting is

new permit on changed circumstances of the business. are revoked may make application to the [ZBA] for a effective May 5, 2006. Permit holders whose permits

desist all operations of Bennett Landscaping . . .

Permit is being revoked and that you must cease and You are hereby notified that your Home Occupation

residential character of the neighborhood.

equipment, offensive odors and change to the

there have been complaints regarding the noise, scope of your Home Occupation Permit. In addition, grown beyond the originally approved conditions and

Bennett Landscaping Inc. has expanded and has

During that inspection, there was clear evidence that required by the Hampstead Zoning Ordinance IV-6:9. Occupation Inspection for your property . . . as

On February 10, 2006, I conducted a periodic Home

in pertinent part: hand-delivered the same letter to Bennett on April 10, 2006. The letter stated,

conclusions. Because that letter was not picked up, King, with a police escort,

On March 27, 2006, King sent a certified letter to Bennett expressing her

that Bennett had exceeded the terms of the special exception.

time summer employees. Based upon these observations, King determined full-time employees, three to four part-time employees, and six to eight partalso explicitly rejected Bennett’s assertions that: (1) the town’s zoning

p. 4 compliance with the special exception for a landscaping business. The court

preexisting nonconforming use, and that Bennett was not using the property in trial court ruled that Bennett’s use of the property was not protected as a and the abutting properties, and heard the testimony of nine witnesses, the

After a two-day trial, at which the trial court viewed Bennett’s property

Bennett from operating its landscaping business. except during business hours. The trial court did not, however, prevent

cease operation of noisy and heavy equipment at the back of the property

Bennett to remove any piles of commercial compost stored on the property, and composting of any materials on the property. The court further directed causing noise by the screening of loam, and engaging in the commercial

and enjoined Bennett from operating a construction business on the property,

The trial court granted the town’s request for a preliminary injunction,

property. The cases were subsequently consolidated. each day that Bennett continued to operate a commercial business at the

from the property; and (3) impose a penalty pursuant to RSA 676:17, I, for

equipment vehicles, landscaping supplies, compost, loam and other materials commercial activities at its property; (2) order Bennett to remove all commercial enjoin Bennett from operating a commercial business or conducting

requested that the court, among other things: (1) permanently restrain and

ordinance and had expanded the scope of its special exception, the town Asserting that Bennett had violated several provisions of the town’s zoning a petition for preliminary and permanent injunctions against Bennett.

cease and desist order by King was null and void. The town responded by filing

protected as a preexisting use under the zoning ordinance; and (3) that the

Constitutions; (2) that its use of the premises as a landscaping business is the procedural due process provisions of both the State and Federal ordinance unconstitutional both facially and as applied because they violate

that the trial court declare: (1) certain provisions of the town’s zoning

On May 3, Bennett filed a petition for declaratory judgment, requesting

attorney[’s] fees and costs.

and will seek civil penalties and recovery of its

business days, the Town will be forced to go to court with a written agreement with the Town within five . . . . [I]f you do not remedy the situation by coming up

have to pay for the Town’s attorney[’s] fees and costs

2006. Besides paying a civil penalty, you will also That written notice . . . was given to you on April 10, which you first received written notice from the Town.

day that you remain in violation after the date on first offense and $550 for subsequent offenses for each had as a result of his constitutional claims was (sic

p. 5 time of trial conceded that the only damages that he

issued in July of 2006. Mr. Bennett’s counsel at the

Court Order permitting him to conduct that business April of 2006, in fact he never had to do so because a did order him to cease his landscaping business in

for attorney’s fees. The town argued that the statute upon which it sought

into the category of “no harm no foul.” While the Town

trial court applied the wrong legal standard in ruling upon the town’s request

actually revoked the permit on May 5, 2006 there may If in fact Mr. Bennett did nothing and the Town

was corrected alleged were committed by the Town of Hampstead fall [A]ny constitutional violations that Chris Bennett

Thereafter, the town timely moved for reconsideration, arguing that the reasons for its ultimate decision.” In that order, the trial court noted:

warrant the payment of th[o]se fees.”

elected to bring a lawsuit, any due process violation the landscaping business. Because Mr. Bennett its initial directive to cease and desist the operation of

court also issued a written order that “in summary fashion set forth the The trial court made detailed findings of fact and rulings of law. The attorney[’s] fees because it d[id] not find either party had the requisite malice to

lose [the home occupation] permit by a date certain. [The letter from King to Bennett] states that he would

surrendering said permit until July in no way changed

(Emphases added.) The trial court also “elect[ed] not to award either party part of the Town.”

damages flow from it to him.

Chris Bennett’s attorney[’s] fees in this case. . . .

the Town later agreed to extend the date for well have been a due process violation. The fact that

assistance to secure a clearly defined right” and it established “bad faith on the whose position [wa]s patently unreasonable,” or “forced to seek judicial attorney’s fees because it was either “forced to litigate against an opponent

not order the Town of Hampstead to be responsible for attorney[’s] fees. In light of its findings the Court will

had no complete and adequate remedy at law; and (4) it was entitled to ordinance was unconstitutional; (2) its due process rights were violated; (3) it defined and established rights. See

p. 6 Blouin consequently, it was forced to seek judicial assistance to secure those clearly

judicial exception to the general rule that precludes recovery of such fees.” fees because its procedural due process rights had been violated, and, its claim for attorney’s fees. Bennett argued that it was entitled to attorney’s Subsequently, Bennett filed a motion requesting that the court entertain

authorized by statute, an agreement between the parties, or an established “A prevailing party may be awarded attorney’s fees when that recovery is

forth our standard of review.

request for attorney’s fees. We address each argument in turn, but first set [attorney’s] [f]ees . . . .” town attorney’s fees under RSA 676:17, II; and (2) failing to reconsider its party on this issue. Accordingly, the [court] will entertain a claim for On appeal, Bennett argues that the trial court erred by: (1) awarding the property, and the [court] found that he was, then the Town is the prevailing

involves whether or not Mr. Bennett was making an improper use of his to attorney’s fees. The trial court denied Bennett’s motion.

trial court’s decision on attorney’s fees, and uphold the decision if the record

request for reconsideration. It stated: “Given that the majority of this case been awarded “affirmative relief or success on the merits” and was not entitled town was the prevailing party. The trial court, however, granted the town’s clearly defined and established right.” Thus, the town argued, Bennett had not Bennett countered that the trial court had never established that the town acted with bad faith, and the court never found that Bennett “secured a

filed after the ten-day reconsideration period. See The town countered that Bennett’s motion was untimely because it was

applying this standard, we keep in mind the substantial deference given to the attorney’s fees unless it is an unsustainable exercise of discretion. Id. In , 155 N.H. at 708. We will not overturn a trial court’s award of

because Bennett was not a prevailing party, the court never found that the

of the denial of its attorney’s fees. town also argued that Bennett’s motion had no factual or legal support prevailing party in its enforcement action,” the town requested reconsideration Super. Ct. R. 59-A. The party. Because the trial court’s “[o]rder establishe[d] that the Town was the

revisit the subject of attorney[’s] fees, as claimed by both parties.” entitled to mandatory attorney[’s] fees by statute,” equity required the court “to (2007). Bennett also asserted that, because “[t]he town . . . insist[ed] it [wa]s

to recover its fees, but rather that the town simply have been the prevailing attorney’s fees, RSA 676:17, II, did not require a finding of malice in order for it the provision. City of Rochester v. Corpening p. 7 nature of a particular statutory provision primarily from the language used in We determine the legislature’s intent as to the mandatory or directory

thereof.” construction, alteration, or reconstruction” of “any building or structure or part or proceeding to prevent, enjoin, abate, or remove [an] unlawful erection,

pursuant to this title, . . . the municipality shall building code board of appeals decision made

“institute injunction, mandamus, abatement, or any other appropriate action

planning board, zoning board of adjustment or

authority to enforce the provisions of any local ordinance, code or regulation to (Emphasis added.) RSA 676:15 (1996) permits local officials who have enforcement of a statute permissive, and that the word “shall” requires

found to be a prevailing party in the action.

regulation adopted under this title, or to enforce any 676:15 or otherwise, any local ordinance, code or enforce, by way of injunctive relief as provided by RSA

general rule of statutory construction is that the word “may” makes

In any legal action brought by a municipality to

recover its costs and reasonable attorney’s fees

isolation. Id

ordinary meaning to the words used. Id RSA 676:17, II provides, in pertinent part: considered as a whole. In the Matter of Carr & Edmunds ElderTrust of Fla. v. Town of Epsom arbiter of the legislature’s intent as expressed in the words of the statute, 154 N.H. 693, 696 (2007). town in RSA 676:17, II. Thus, we must interpret that statute. We are the final application of a statute present questions of law, which we review de novo. Ipswich, 157 N.H. ___, ___ (decided May 30, 2008). The interpretation and legislative history to aid our analysis. Green Crow Corp. v. Town of New

. Unless the statutory language is ambiguous, we will not examine

interpret a statute in the context of the overall statutory scheme and not in have said or add language that the legislature did not see fit to include. Id. We from the statute as written and will not consider what the legislature might provides some support for it. Demers Agency v. Widney . at 504. We interpret legislative intent 04 (2007). When examining the language of a statute, we ascribe the plain and

The trial court found authorization for its award of attorney’s fees to the

(2007); see also Town of Swanzey v. Liebeler, 140 N.H. 760, 765 (1996).

p. 8 calculated to give the defendant actual notice of the issue to be decided at the “We have held that adequate notice is notice that is reasonably

attorney’s fees under RSA 676:17, II. town’s attorney provided Bennett with notice that the town could recover

The town adds that, on May 1, 2006, prior to filing its enforcement action, the

before bringing an action for injunctive relief to enforce a zoning ordinance. notice that it can recover attorney’s fees if it is found to be a prevailing party counters that RSA 676:17, II does not require a municipality to provide written

cannot recover attorney’s fees when it failed to provide such notice. The town

could be assessed prior to filing its enforcement action, and, thus, the town

that the town failed to provide it adequate written notice that attorney’s fees conflicts with its procedural due process rights. Specifically, Bennett asserts Bennett argues that awarding the town attorney’s fees in this case

attorney’s fees for this action. against Bennett, the trial court was required to award the town reasonable Ordinance.” Thus, because the town prevailed in its enforcement action

Hampstead’s Home Occupation Regulations contained in the Town’s Zoning

activity to the landscaping business, and to “comply with all of the Town of the town on both questions, and, consequently, ordered Bennett to limit its special exception for a landscaping business. The trial court found in favor of

provisions of the town’s zoning ordinance, and that, if it did not remedy the

several provisions of the town’s zoning ordinance, and exceeded the scope of its In its action for injunctive relief, the town asserted that Bennett violated

exceeded the scope of its special exception, Bennett was violating certain

enforcement action. supports the trial court’s finding that the town was the prevailing party in its

Bennett, in writing, before filing its enforcement action that Bennett had

, 140 N.H. at 763 (citations omitted). Here, the town notified “is found to be a prevailing party in the action,” the municipality is entitled

ordinance, code, regulation, or zoning board decision in which the municipality

court awarded the town attorney’s fees for its enforcement action. The record

now mandates that in any legal action brought by a municipality to enforce an

Mr. Bennett was making an improper use of his property.” Accordingly, the th[e] issue” presented in “the majority of th[e] case”; that is, “whether or not Here, the trial court found that “the Town [wa]s the prevailing party on

the legislature removed such discretion from the trial court. RSA 676:17, II request for fees. By amending RSA 676:17, II to use the words “shall recover,” used the words “may recover,” the trial court had discretion to deny the town’s

mandatory enforcement. Id

recover reasonable attorney’s fees actually expended in pursuing that action.

under the prior version of RSA 676:17, II (1996), in which the legislature had

p. 9 for attorney’s fees. In the absence of specific findings, however, a court is The trial court did not specify its reasons for denying Bennett’s motion

established rights, see it was forced to seek judicial assistance to secure those clearly defined and

therefore, Bennett is not entitled to attorney’s fees under state or federal law.

deprived of its procedural due process rights. Bennett contends that, because

expressly ruled that the town did not deprive Bennett of due process, and, attorney’s fees was untimely. The town further submits that the trial court The town counters that Bennett’s request for reconsideration and 9

pay reasonable attorney’s fees. Cf violations and was found to be a prevailing party, Bennett would be required to notice from the statute that, if the town sought legal action to remedy the and rulings of law, Bennett asserts that the trial court found that Bennett was

the Town will be forced to go to court and will seek

Lisa H., 134 N.H. 188, 195 (1991); see also Burns v. Bradley, 120 N.H. 542,

ordinance, code, regulation, or zoning board decision. Therefore, Bennett had upon the trial court’s written order supplementing its detailed findings of fact request for attorney’s fees, and in failing to award it attorney’s fees. Based Bennett argues that the trial court erred in failing to reconsider its coming up with a written agreement with the Town within five business days,

recover attorney’s fees. Cf award attorney’s fees to the town under RSA 676:15, II. under both state and federal law. both its special exception and a town ordinance, and that the town could Blouin, 155 N.H. at 708, it is entitled to attorney’s fees Thus, Bennett had reasonable written notice that it was in fact in violation of

it is found to be a prevailing party in a legal action brought to enforce an

The town’s attorney further explained: “if you do not remedy the situation by [Bennett] w[ould] . . . have to pay for the Town’s attorney[’s] fees and costs.” Town have to initiate a court action against [it] to remedy the violation, . . .

that it did not receive adequate notice and uphold the trial court’s decision to

II clearly states that the town is entitled to recover reasonable attorney’s fees if Further, every person is presumed to know the law, id., and RSA 676:17,

(2001).

violations, the town would take legal action against it. In addition, the town’s

informed Bennett of the possibility that it may have to pay attorney’s fees, but of its attorney[’s] fees and costs.” (Emphases added.) This letter not only

p. 10 language as constituting a finding that Bennett’s due process rights were violation was corrected through the legal process,” we do not read this

there may well have been a due process violation,” and that “any due process A f f i r m e d

for attorney’s fees on this basis.

BRODERICK, C.J.