2009-098, Roger Bedard & a. v. Town of Alexandria

The defendant, the Town of Alexandria (Town), appeals an

and John L. McGowan on the brief, and Mr. Boldt orally), for the defendant. Donahue, Tucker & Ciandella, PLLC, of Portsmouth (Christopher L. Boldt

Colin W. Robinson, of Lyme, on the brief and orally, for the plaintiffs. to press. Errors may be reported by E-mail at the following address:

page is: http://www.courts.state.nh.us/supreme. ROGER BEDARD & a.

No. 2009-098 editorial errors in order that corrections may be made before the opinion goes Grafton Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any 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 it into the stream of commerce.” Thus, the plaintiffs attempt to distinguish the p. 2 “commercial taking of earth” means “removing earth for the purpose of placing

“commercial taking of earth.” RSA 155-E:1, II. The plaintiffs assert that

furthermore, that such action is not “excavation” because it is not a requires all slopes to “be graded to natural repose.” They contend, “excavation,” but, rather, reclamation under RSA 155-E:5, III (2002), which pleading requesting attorney’s fees. The court denied the request. for attorney’s fees pursuant to RSA 155-E:10, II (2002), the Town submitted a regulations. Because the trial court’s order did not address the Town’s request

area. They argue, however, that creation of the slope did not constitute

undertake reclamation in accordance with RSA 155-E:5 and the Town’s

isolation, but in the context of the overall statutory scheme. ordinary meanings to words used. We interpret statutes not in found in the statute, and where possible, we ascribe the plain and

plaintiffs acknowledge that they created a forty-five degree slope in the setback reclamation is “excavation” pursuant to RSA 155-E:1, II (Supp. 2009). The earth within fifty feet of an objecting abutter’s land for the purpose of plaintiffs impermissibly excavated in the setback area and ordered them to setback area do not constitute “excavation.” The trial court ruled that the summary judgment, arguing that, as a matter of law, their activities in the of law on the court’s interpretation of RSA chapter 155-E, we review this issue

construing the meaning of a statute, we first examine the language

The plaintiffs assert that the trial court erred in finding that moving

Id. (quotations and citations omitted). reclamation of the setback area. The plaintiffs filed a cross-motion for in denying their summary judgment motion. Because this appeal turns

sought to be advanced by the entire statutory scheme. When legislature’s intent in enacting them, and in light of the policy construction. Our goal is to apply statutes in light of the We are guided by a number of well-settled principles of statutory

2009). de novo. Coco v. Jaskunas, 159 N.H. __, __ (decided Dec. 16,

partial summary judgment, requesting from the court authority to require meaning of RSA chapter 155-E. The Town subsequently filed a motion for We first address the plaintiffs’ argument that the trial court erred the soil in the setback area does not constitute “excavation” within the

which leads up through the sandpit to Platts’ property line. area contains a slope of bare dirt, approximately forty-five degrees in grade, such materials from the pit. As a result of the plaintiffs’ activities, the setback

The plaintiffs sought a declaration from the trial court that movement of

disturbed materials from and within the setback area, they did not remove prohibition by excavating within the setback area. Although the plaintiffs in the excavation.

p. 3 disapproving abutter.” We agree with the trial court’s conclusion. violated RSA 155-E:4-a, II by excavating within 50 feet of the boundary of a setback area. The trial court further found that removed earth, for commercial purposes, from an area contiguous to the rectify.” Thus, implicit in the trial court’s order is the finding that the plaintiffs

part of the area used for commercial taking. The slope is included

“exceeded the scope of the [excavation] permit issued by the Town in 1999 and

was created to enable the commercial taking and was, therefore,

creating the slope, which intruded into the setback area, the plaintiffs

“narrow reading of the statute.” As the court explained, such reading “would slope from intruding into the setback. The trial court rejected the plaintiffs’ area used for the commercial taking of earth. The definition includes no that slopes be graded to natural repose, the statute does not prohibit their taking comply with applicable statutes and regulations. The slope The statutory definition of “excavation” includes “all slopes” in the land created for the sole purpose of attempting to make the commercial they were clearly part of the same project and the slope was

In light of these findings, the trial court determined that in moving soil and not be abrupt, but shall blend with the surrounding terrain.

constitutes reclamation of the actual excavation area and the statute requires

creation of the slope is inseparable from the commercial taking as

the owner and approved by the regulator. Changes of slope shall control erosion or at a ratio of horizontal to vertical proposed by repose for the type of soil of which they are composed so as to

In essence, the plaintiffs argue that because the slope they created

boundary of a disapproving abutter.” RSA 155-E:4-a, II (2002). the excavated land is required to complete reclamation of the affected areas. including the prohibition against any excavation “within 50 feet of the RSA 155-E:5, III. RSA 155-E:4-a sets forth the excavation operating standards, has been used, for the commercial taking of earth,

offending slope.

All slopes, except for exposed ledge, shall be graded to natural

which states in pertinent part: See RSA 155-E:5. The reclamation requirements are set forth in RSA 155-E:5,

155-E:1, II (emphasis added). Upon completion of an excavation, the owner of

The statutory definition of “excavation” is “a land area which is used, or

contiguous to the setback area, which work necessitated creation of the movement of soil in the setback area from their commercial excavation work did not address the “substantial benefit” theory. p. 4 concluded that the Town was not entitled to costs or attorney’s fees. The court

relevant only to the award of attorney’s fees under the

with the reclamation requirements of the statute. The court therefore

fees under this exception . . . . The bad faith conduct of the defendant is

155-E was not egregious, and that they were apparently attempting to comply statute. Further, the court found that the plaintiffs’ violation of RSA chapter plaintiffs’ action was based on a reasonable misunderstanding of the applicable

bad faith of the defendants is not a consideration in the award of attorney’s

faith prior to or during the course of the litigation, and concluded that the action.” should have been unnecessary for the successful party to have brought the can be characterized as unreasonably obdurate or obstinate, and where it

action confers a “substantial benefit” upon the general public. “[T]he good or

trial court’s denial of the plaintiffs’ motion for summary judgment. fifty feet of the boundary of a disapproving abutter. We therefore uphold the Here, the trial court found no evidence that the plaintiffs acted in bad

applicable to vexatious litigation.” Silva, 121 N.H. at 1044. vexatiously, wantonly, or for oppressive reasons, where the litigant’s conduct Harkeem exception,

‘substantial benefit.’” N.H. 1041, 1043 (1981), attorney’s fees may be awarded when a litigant’s Under the “substantial benefit” theory set forth in Silva v. Botsch, 121 rule. citations omitted). to natural repose” does not vitiate the prohibition against excavation within Harkeem v. Adams, 117 N.H. 687, 691 (1977) (quotations and

unsustainable exercise of discretion.” will not overturn the trial court’s decision concerning attorney’s fees absent an attorney’s fees is appropriate where “one party has acted in bad faith, fees without specifying the theory under which they should be awarded. “We (2004) (citations omitted). Under the “bad faith litigation” theory, an award of

State based upon two separate theories: ‘bad faith litigation’ . . . and As to judicially-created exceptions, “[a] ttorney’s fees have been awarded in this Merrimack School Dist. v. Nat’l School Bus Serv., 140 N.H. 9, 14 (1995). attorney’s fees, there are judicially-created and statutory exceptions to this Although each party to a lawsuit normally bears the expense of its own provisions protecting the setback area. The requirement that slopes be “graded the setback area as part of reclamation would contravene the express statutory Greenland, 152 N.H. 617, 624 (2005). the plain language of the statute. Moreover, permitting disruption of the soil in Portsmouth Country Club v. Town of

denying its request for attorney’s fees. In its pleadings, the Town requested We next address the Town’s argument that the trial court erred in

argument that the slope is separate from their excavation activity is contrary to exception for slopes created as part of reclamation. Thus, the plaintiffs’ therefore, ought to pay [the bidder’s] counsel fees. p. 5 bidding procedures in this instance have been invalidated, bidding procedures and had its bid accepted. The city, whose “conferred a substantial benefit[,] . . . not only [upon it][,] . . . but on the public

erroneous. Here, [the successful bidder] complied with the city’s successful action to stop the unauthorized expenditure of highway funds

bidding procedures. governmental entity whose procedures are adjudicated as entitled to an award of reasonable attorney’s fees from the State because its

successfully seeking a requirement of fairness in the city’s public benefit on bidders as well as Laconia’s citizens and taxpayers by attorney’s fees. That cost is more equitably borne by the procedure. But more importantly, it conferred a substantial procedures are successfully challenged, by having to pay its own the “substantial benefit” theory to hold that the plaintiff association was not to be penalized in a subsequent court action in which the Likewise, in New Hampshire Motor Transport Association we relied on

Id. at 277. procedure, was entitled to such fees.

substantial benefit on the town he served.

municipal property that was based on an unfair public bidding A party that justifiably relies on governmental procedures ought bidding procedure regarding the sale of city-owned property. Id. at 273-74, 277. whose purchase of city property was voided because of the improper bidding Irwin Marine, 126 N.H. at 276-77. We similarly determined that a bidder, litigation not only vindicated his own right to hold office, but also conferred a

Irwin Marine vindicated its own interest in setting aside a sale of

Marine was entitled to attorney’s fees in its successful challenge to Laconia’s Marine we also applied the “substantial benefit” theory to hold that Irwin standard set forth in Silva, 121 N.H. at 1043-44. In Irwin the court should have applied the “substantial benefit to the community” because, as a public trustee elected to administer municipal affairs, his removal from office was entitled to attorney’s fees from the other selectmen In Silva, we held that a town selectman who successfully challenged his

to fees under RSA chapter 155-E. deserving of an attorney’s fee award. The Town also asserts that it is entitled benefit upon the citizens of Alexandria and the State, and therefore it is Town asserts that its enforcement of the regulations confers a substantial 271 (1985), rather than the “bad faith” standard articulated in Harkeem. The

standard for determining whether to award attorney’s fees. It contends that On appeal, the Town argues that the trial court applied the incorrect awards:

p. 6 discretion in denying an award of attorney’s fees to the Town. in this case, we conclude that the trial court sustainably exercised its

for discretionary awards, in contravention of legislative intent. regulation enforcement actions. The statute provides only for discretionary fee plain language of RSA 155-E:10, which governs the award of fees in excavation RSA 676:17.” This “incorporation” argument fails, however, based upon the

legislation with superfluous or redundant words.”). Upon review of the record

mandatory fee awards “by incorporation” would override the express provision BRODERICK, C.J., and DALIANIS, DUGGAN and HICKS, JJ., concurred.

affected by such violation. Affirmed. scheme established in the enforcement provisions of both RSA 155-E:10 and

676:17-a, and 676:17-b. . . . [T]he superior court

to all words in a statute, and presume that the legislature did not enact City of Franklin, 159 N.H. __, __ (decided Jan. 14, 2010) (“We must give effect necessary nor warranted. See Smith v.

RSA 155-E:10, II (emphasis added). To construe this statute as providing for official.

in seeking such an order to the regulator or person directly an award of attorney’s fees to the Town is “consistent with the overall statutory discretion may award all costs and attorney’s fees incurred

[Planning and Zoning], as stated in RSA 676:15, 676:17, shall be the same as for violations of RSA title LXIV Fines, penalties, and remedies for violations of this chapter

award of attorney’s fees for successfully meeting this responsibility is neither

based on promotion of a public interest either by a private party or a public

enforcement action, is incorporated by reference into RSA 155-E:10, II (2002), award of attorney’s fees to a successful municipality in a planning or zoning related to highway purposes.” The Town also contends that because RSA 676:17, which requires the

responsibilities include protection of the public interest, and therefore, the

See, e.g., Silva, 121 N.H. at 1043-44. A governmental entity’s

favor of a governmental entity against a private litigant. Rather, the theory is is inapposite here. We have not applied that theory to support an award in In light of our case law, we conclude that the “substantial benefit” theory

highway infrastructure due to the diversion of funds for projects not exclusively from any degradation of highway conditions or failure to build new roads and associated with automobile ownership and fuel taxes, “is most likely to suffer brackets, and ellipses omitted). We explained that the public, which pays fees as well.” N.H. Motor Transport Assoc., 150 N.H. at 770 (citation, quotation,