2009-544, City of Portsmouth v. James Boyle, Trustee, 150 Greenleaf Avenue Realty Trust

Suzanne M. Woodland

No. 2009-544

Rockingham

efforts. See injunction against further clear cutting and an order to conduct restoration unlawfully clear cut trees within a wetlands buffer zone. The city sought an

Court’s (Lewis HICKS, J. The plaintiff, City of Portsmouth (city), appeals the Superior

Wholey & Pelech Law Office commenced a zoning enforcement action against Boyle alleging that he The record supports the following facts. In January 2006, the city

RSA 676:15 (2008). In addition, the city requested civil penalties,

Greenleaf Avenue Realty Trust (Boyle). We affirm.

, J.) award of costs to the defendant, James Boyle, Trustee of 150

brief and orally), for the defendant.

and orally, for the plaintiff.

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 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 grounded in fact.” RSA 676:17-a, VII; see p. 2 information and belief formed after reasonable inquiry or was not well “was frivolous, was commenced in bad faith, or was not based upon attorney’s fees and costs to be assessed against a municipality if the action which we review de RSA 676:17-a, which regulates cease and desist orders, authorizes reasonable The interpretation of a statute or a superior court rule is a question of law, recover costs, it would have expressly so provided as it did in RSA 676:17-a. The city’s argument requires us to construe RSA 676:17 and Rule 87. The city contends that if the legislature wanted a non-municipality to

words used. MacPherson, 158 N.H. at 9. We interpret legislative intent from language of the statute, we ascribe the plain and ordinary meaning to the Martinez v. Nicholson, 154 N.H. 397, 398 (2006). When examining the

on municipal efforts to protect the environment. financial exposure due to zoning enforcement actions.” without a finding of bad faith on the part of the city would have a chilling effect municipal enforcement power by protecting [a] municipality from excessive (2008). The city argues that to uphold the trial court’s award of costs to Boyle 87. Rather, by enacting RSA 676:17, the legislature wanted to “strengthen[ ] intend for a party who is not a municipality to recover costs, even under Rule also 677:14 (2008); RSA 677:15, V The city, therefore, maintains that the legislature, through its silence, did not is silent as to the award of costs to a prevailing party other than a municipality. which a municipality may recover its costs for zoning enforcement actions,” but The city notes that RSA 676:17 provides “several mechanisms through

RSA 676:17, RSA 676:17-a (2008), White v. Francoeur is acting in its enforcement capacity.” To support this argument, the city cites this Court do not support an award of costs under . . . Rule 87 when the [c]ity comprehensive municipal zoning statutory scheme and the prior decisions of On appeal, the city first argues that the trial court erred because “[t]he

Court Rule 87 for costs of deposition transcripts and expert witnesses. See and Town of Windham v. Lawrence Savings Bank Subsequently, Boyle moved for taxation of costs pursuant to Superior, 146 N.H. 517 (2001). , 138 N.H. 307 (1994),

court awarded most of the requested costs, and this appeal followed. as provided by these rules, unless the Court otherwise directs.”). The superior Super. Ct. R. 87(a) (“Costs shall be allowed as of course to the prevailing party

150 Greenleaf Avenue Realty Trust, No. 2007-0722 (N.H. July 2, 2008). appealed, and we affirmed. See City of Portsmouth v. James Boyle, Trustee, Boyle’s clear cutting activity violated the city’s zoning ordinance. The city bench trial, the trial court ruled that the city had failed to demonstrate that attorney’s fees, and costs. See RSA 676:17, I, II (Supp. 2009). Following a against a municipality. See p. 3 appeals, all require a specific finding of bad faith to support an award of costs and desist orders, zoning board of adjustment appeals, and planning board contrast, RSA 676:17-a, RSA 677:14, and RSA 677:15, V, which govern cease action from the realm of “civil proceedings” to which Rule 87 applies. In II also does not contain any language that would remove a zoning enforcement of costs when a defendant prevails in an enforcement action. But RSA 676:17, As the city points out, RSA 676:17, II does not expressly provide for the award

zoning enforcement action. RSA 676:17, II; White as well as reasonable attorney’s fees by a municipality when it prevails in a “recoverable costs,” which include inspection fees and investigatory expenses, Based upon its plain language, RSA 676:17 mandates the recovery of

and investigatory expenses. incurred, including but not limited to, inspection fees, expert fees 3

and deposition transcript fees. Compare RSA 676:17, II with Super. Ct. R. court’s discretion whether a party should recover certain costs, such as expert Super. Ct. R. 87(a), (c). Unlike RSA 676:17, II, Rule 87 also leaves to the trial which grants only “allowable costs” and no attorney’s fees to a prevailing party. 676:17, III. This is a much greater recovery than is allowed under Rule 87, petition the court for restitution of additional public funds expended. RSA in a title action rather than an enforcement action). A municipality may also municipality not entitled to costs under RSA 676:17, II because it was engaged recoverable costs shall include all out-of-pocket expenses actually, 138 N.H. at 309 (holding prevailing party in the action. For the purposes of this paragraph, actually expended in pursuing the legal action if it is found to be a

costs where statute is silent). 24 (agreeing with town that no finding of bad faith required for recovery of include.” MacPherson, 158 N.H. at 9; see Town of Windham, 146 N.H. at 523- 676:17, and we refuse to “add language that the legislature did not see fit to finding of bad faith). No such finding of bad faith is required under RSA 10-11 (1993) (trial court denial of costs under RSA 677:15, V upheld where no

municipality shall recover its costs and reasonable attorney's fees ordinance, code or regulation adopted under this title . . ., the injunctive relief as provided by RSA 676:15 or otherwise, any local In any legal action brought by a municipality to enforce, by way of

a zoning enforcement action under RSA 676:15, states, in pertinent part: RSA 676:17, II, which governs the recovery of costs by a municipality in

legislative intent. Taylor v. Town of Wakefield, 158 N.H. 35, 39 (2008). language used is clear and unambiguous, we will not look beyond it to discern said or add language that the legislature did not see fit to include. Id. If the the statute as written and will not consider what the legislature might have p. 4 Affirmed

concurred. 676:17, II; Super. Ct. R. BRODERICK, C.J., and DALIANIS, DUGGAN and CONBOY, JJ., require a finding of bad faith in order for the trial court to award costs. RSA not act in bad faith.” Neither Superior Court Rule 87 nor RSA 676:17, II faith municipal enforcement action” and the trial court found that the city “did discretion in awarding costs because the disputed costs “arose from a good Finally, the city contends that the trial court unsustainably exercised its

cases. Martinez proceeding” for purposes of Rule 87. We disagree. Rule 87 applies to equity private party. The city argues that a zoning enforcement action is not a “civil compliance with the [c]ity’s municipal zoning ordinances” rather than as a “proceeding under its enforcement authority” in order to “seek [Boyle’s]. The city next contends that Rule 87 is inapplicable because it was it awarded Boyle costs. conclude that the trial court did not unsustainably exercise its discretion when the [trial court’s] decision if the record provides some support for it”). We when applying the unsustainable exercise of discretion standard we “uphold others. Bennett v. Town of Hampstead, 157 N.H. 477, 483 (2008) (stating that carefully analyzed Boyle’s requests for costs, granting some and denying

154 N.H. at 399. under RSA 676:15 and RSA 676:17, I, II; therefore, Rule 87 applies. Martinez, engaged in an equitable action when it requested injunctive relief and penalties

, 154 N.H. at 399; Super. Ct. R. 116. Here, the city was

municipality acted in bad faith. trial court from awarding costs under Rule 87 absent a finding that the other). Accordingly, we reject the city’s argument that RSA 676:17 prevents a reasonably possible, statutes should be construed consistently with each Health & Human Servs., 154 N.H. 228, 234 (2006) (directing that when State of N.H., 153 N.H. 120, 144 (2005); cf. Bel Air Assocs. v. N.H. Dep’t of therefore, the two can be construed harmoniously. See Associated Press v. 87(c). In practical terms, RSA 676:17 does not conflict with Rule 87 and,