2010-559, Town of Barrington v. Richard Townsend

The respondent, Richard Townsend, appeals orders of the

___________________________ the brief and orally), for the respondent. Douglas, Leonard & Garvey, P.C., of Concord (Charles G. Douglas, III on THE SUPREME COURT OF NEW HAMPSHIRE

brief and orally), for the petitioner.

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

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

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

taken if he failed to come into compliance.” It commenced that action in July

p. 2 2009, “reiterating the violations and notifying [him] that court action would be The Town asserts that it sent a second letter to the respondent in May

asserts that he had moved out of the barn by April 1, p. 2 2009.

would “move the unfinished home from the barn to appease the town.” He

although he had not yet completed the repairs to his fire-damaged RV, he Standards for the GR and NR District ( p. 2 2) and (3).” The respondent replied that Required as well as Article 3.1.1 Permitted Structures and Article 4.2.1

15.4.1 Building Permit Required and Article 15.4. p. 2 2 Certificate of Occupancy

without benefit of a building permit and rent said camp” in “violation[] of Article Occupancy Required”; and ( p. 2 2) “[Y]ou have constructed a camp on said lot ordinance] Building Permit Required and Article 15.4.2 Certificate of

unit which constitutes a violation of Article 15.4.1 [of the Town’s zoning

among others: (1) “[Y]ou have changed the use of your barn/shop to a dwelling violation/cease and desist order. The order noted the following violations, In March p. 2 2009, the Town sent the respondent a notice of zoning

massage and fitness equipment.

restaurant kitchen equipment, a sink, a bed, a futon, a game table, and two heating systems, and central air conditioning. The second floor also has upper level. The barn has insulation, sheetrock, carpet, electricity, plumbing,

structure with a workshop on the lower level and the respondent’s office on the

described as “adequate for emergency living quarters.” The barn is a two-story respondent states that following the fire he moved into his barn, which he living sustained damage from an electrical fire rendering it uninhabitable. The In September p. 2 2008, the motor home in which the respondent had been

only four couples in four motor homes stay at the site. approximately fifty guests a year at his property, although, in p. 2 2009, he had metered utilities. He testified at his deposition that he would sometimes have

p. 2 2009, inviting friends and FMCA members to “visit at no charge,” except for

respondent himself, for instance, posted an offer on the association’s website in

whose members, he asserts, “post stops around the country to visit.” The The respondent is a member of Family Motor Coach Association (FMCA),

respondent stated in p. 2 2009 that his property had “10 full year round hook ups.” electrical hook-ups, and some have water and/or sewer connections. The that were later upgraded “to double for guests.” The sites have metered

property to park his construction equipment. These sites had utility hook-ups

respondent’s pleadings and deposition, he originally established sites on the perhaps seasonally, in various RVs on the property. According to the recreational vehicle (RV) enthusiast and has lived, though the record suggests

The respondent owns property at 43 Hall Road in Barrington. He is a law to the facts de p. 3 judgment is proper. We review the trial court’s application of the

entitled to judgment as a matter of law, the grant of summary

is no genuine issue of material fact, and if the moving party is them, in the light most favorable to the non-moving party. If there

consider the affidavits, and all inferences properly drawn from In reviewing the trial court’s grant of summary judgment, we

these issues in turn. the trial court erred in awarding attorney’s fees to the Town. We will address

fact existed regarding [his] use of his property and barn.” He also argues that

summary judgment on the code violation issues because “[m]aterial issues of On appeal, the respondent argues that the trial court erred in granting

distinction between commercial and non-commercial use material to the We agree with the Town that the trial court did not consider the

relevant.” argues that whether the use was commercial or private is “not material, or even

penalties.

the use was commercial and, in fact, did not make such a finding. It further

motions for nonsuit and attorney’s fees and denied the motion for civil

then asserts that the trial court did not base its decision upon a finding that the trial court’s decision as to whether the use was non-residential.” The Town or non-commercial, and further[,] . . . that that disputed fact was material to

prejudice and for civil penalties and attorney’s fees. The trial court granted the Town then moved for voluntary nonsuit of its remaining claims without without proper approvals.” The trial court granted the Town’s motion. The

“there was a disputed fact as to whether his campground use was commercial approval.” The Town interprets the respondent’s argument to assert that operating a non-residential campground business that required planning board The respondent asserts that “the Town failed to prove that [he] was [respondent] has used, and continues to use, his barn as a residential property Bates v. Vt. Mut. Ins. Co., 157 N.H. 391, 394 (2008) (citations omitted).

use, his Property as a campground without proper approvals and that the alleged violations at issue “were that the [respondent] used, and continues to of the alleged code violations and on the respondent’s counterclaims. The In February 2010, the Town filed a motion for summary judgment on two

police chief. among other things, bad faith by the Town’s code enforcement officer and

attorney’s fees. The respondent brought a number of counterclaims alleging, by petition for preliminary and permanent injunctions, civil penalties, and operating an illegal p. 4 deciding [in favor of] the Town on the issue of whether the [respondent] was

The respondent’s notice of appeal raised the question: “Did the trial court err in

to include every subsidiary question fairly comprised therein. document. The statement of a question presented will be deemed

or updating electrical and plumbing to accommodate frequent visitors.

shall be the same as the question previously set forth in the appeal

were akin to adding guest accommodations to a more traditional home,

exactly as it was in the appeal document, the question presented

that required planning board approval. . . . The improvements he made improvements changed the character of his use to a “non-residential” use

While the statement of a question [in the brief] need not be worded

Supreme Court Rule 16(3)(b) provides, in part:

Barrington on the issue of whether [the respondent’s] RV-related The trial court erred in granting summary judgment to the Town of

of the property was non-residential. Specifically, he asserts: argument encompasses a challenge to the court’s legal conclusion that his use argument in terms of a dispute over a genuine issue of material fact, the his notice of appeal or brief. We disagree. We also conclude that although the respondent’s brief frames his however, that the respondent waived that issue by failing to clearly raise it in non-residential use under Section 3.1.6 of the zoning ordinance.” It contends, failing to find mutual mistake warranting rescission of insurance contract).

“the trial court’s legal determination that a recreational campground was a prefer to encounter,” included subsidiary question of whether court erred in The Town apparently recognizes that the real issue is the propriety of

provide coverage, “[a]lthough . . . far from the model of specificity we would

respondent used “his property as a campground without the proper approvals.” campground use violated the zoning ordinance. Cf

in notice of appeal asking whether court erred in ruling insurer obligated to Maine Bonding & Cas. Co., 135 N.H. 325, 330 (1992) (concluding that question accordingly granted the Town summary judgment on its claim that the. Hillside Assocs. of Hollis v. court erred in making the legal determination that the respondent’s added). This broad question fairly encompasses the issue of whether the trial

respondent had not submitted plans for site plan review of that use. It

(Emphases added.) The court also found “there [was] no doubt” that the camping park” and a “Private Seasonal Recreational Camping Park.” accepted the respondent’s own descriptions of his property as a “legal private determination of whether the use was non-residential. Rather, the court ordinance is a question of law, which we review de

p. 5 entirety, we take that representation as true. “The interpretation of a zoning

representation and neither party has provided us with the ordinance in its “non-residential” and, since the respondent does not dispute that The Town represents that its zoning ordinance does not define the term 5

vehicle, in part, as: distinguished from a place of temporary sojourn or transient visit.” Id

residential. undisputed facts, that the respondent’s use of his property was nonbefore us is whether the trial court correctly ruled, as a matter of law on the is commonly defined and used.” Specifically, the ordinance defines recreational dwelling place, abode, or habitation to which one intends to return as

the Site Plan Review Regulations of the Town of Barrington.” The sole issue “recreational vehicles cannot be used [as] a ‘residence,’ as the term ‘residence’ distinguished from his technical domicile” and “a temporary or permanent In addition, the Town points out that under its zoning ordinance,

guests, as opposed to a residence. Id campsites were thus “a place of temporary sojourn or transient visit” for such probably did not exceed six at a time. We conclude that the respondent’s

multifamily dwelling units and non-residential development shall comply with Article 3.1.6 of the Barrington Zoning Ordinance provides: “All ordinance are: “the place where one actually lives or has his home as residence”). The definitions of “residence” most relevant to interpreting the .

The dictionary definition of non-residential is “not residential,” Webster’s accommodate up to fifty RV guests per year, in groups the respondent testified There is no dispute that the respondent used his property to

issue has not been waived. 1931 (defining “residential,” in part, as “used, serving or designed as a “residential,” in turn, is defined by reference to the word “residence,” id. at Third New International Dictionary 1538 (unabridged ed. 2002), and the term

(citation omitted). usage of the language.” Fox v. Town of Greenland, 151 N.H. 600, 605 (2004) words and phrases of an ordinance according to the common and approved traditional rules of statutory construction govern our review, we construe the

mischaracterization by the respondent. Accordingly, we conclude that the

This is a legal argument and we will treat it as such despite its

residential use.” Such changes do not convert a purely residential property into a “non- p. 6 6

had voluntarily remedied.” He asserts, citing Thurston Enterprises, Inc. v. accomplished the result of punishing the defendant for past conduct which he

this Article, shall not be construed as a dwelling unit. sleeping, bathing and eating. A recreational vehicle, as defined in provisions for the same, and including room or rooms for living,

cease and desist notice, an injunction was unnecessary and “only

(1) family, including kitchen facilities or equipment for cooking or

argues that because he had moved out of the barn after being served with the

One (1) or more rooms providing complete living facilities for one

The zoning ordinance defines “dwelling unit” as follows:

See accommodate visiting RV guests is a nonresidential use under the ordinance. This provision further supports the conclusion that the use of a property to recurrent violations.’” (Quoting N.H. Dep’t of Envtl. Servs. v. Mottolo from using his barn as a dwelling unit without a certificate of occupancy. He The respondent next contends that the trial court erred in enjoining him

danger.

zoning ordinance is appropriate where ‘there exists some cognizable danger of recreational vehicle shall not be considered to be a dwelling unit. The Town counters that “[a]n injunction against future violations of a use as a permanent dwelling. For the purposes of this Ordinance a past conduct” and vacating orders to repair damage to right of way). described camping park. housing. A recreational vehicle is not designed or permitted for

57, p. 6 64 (2007)). It also asserts that the evidence supports a finding of such

“[i]njunctive actions . . . look to prevent future conduct rather than to remedy interpreted the term “non-residential” to apply to the respondent’s self- camping trailers not meeting the specifications for manufactured should be vacated. See (quotation omitted)). We conclude, therefore, that the trial court correctly Thurston Enterprises, 128 N.H. at 7 p. 6 64 (noting that Baldi as a whole and attempt to discern the meaning intended by the framers.”, 128 N.H. 760, 764 (1986), that an injunction issued for such a purpose

truck coaches (campers), motor homes, boats, travel trailers, and when used for living or sleeping purposes and including pickup language not defined in the body of the ordinance we also look to the ordinance wheels to facilitate movement from place to place, and automobiles Town of Greenland v. Bunker, 118 N.H. 783, 78 p. 6 6 (1978) (“In construing

or sleeping and/or recreational purposes and equipped with Any building, structure, or vehicle designed and/or used for living p. 7 7

review the trial court’s award of attorney’s fees under our unsustainable The respondent next challenges the award of attorney’s fees. “[W]e

without a certificate of occupancy.” granting injunctive relief “with regard to [the respondent’s] use of the barn

as to the respondent’s use of the barn and the trial court did not err by

used as [his] office.” Accordingly, there was no genuine issue of material fact March 2009. He also testified in January 2010 that the barn was “currently deposition that he lived in the barn from just prior to Christmas 2008 until We agree with both arguments. The respondent testified in his

court’s ruling. occupancy].” In other words, the disputed fact was not material to the trial

the appellant was continuing to use the barn without a [certificate of

continuing use would not change the trial court’s ultimate determination that

to use the barn as his office, “removing the finding that the dwelling use is a Inspector.” The Town therefore argues that because the respondent continued converted or extended until a certificate of occupancy is issued by the Building

premises or part thereof, hereafter erected, relocated, altered, repaired,

that “[n]o person shall use or permit the use of any building, structure or not just use as a dwelling. Specifically, Article 15.4.2 of the ordinance provides ordinance’s requirement of a certificate of occupancy for any use of a building,

without a certificate of occupancy. The latter argument is based upon the

The Town counters that even assuming arguendo

second floor of the barn as his office supports a finding of continuing use is violation; and (2) the respondent’s admission that he continued to use the barn as a dwelling during the winter of 2008-2009 supports a finding of a past

‘continued use’ of the barn should . . . be reversed.”

cease and desist order. The court stated, “It is apparent that [the respondent] “such error is harmless” because: (1) the respondent’s admitted use of the

“[t]he trial court’s ruling in favor of the Town on the issue of [his] alleged

the court’s ruling that he continued to use the barn as a dwelling after the erred in finding that the respondent continued to use the barn as a dwelling, The crux of the respondent’s claim of error appears to be the inference in

issue of material fact concerning his use of the barn. He therefore argues that immediately after receiving the cease and desist letter, he raised a genuine asserts that having submitted evidence that he stopped using the barn using the barn as a dwelling unit . . . .” (Emphasis added.) The respondent

undisputed evidence established that the barn is equipped as a dwelling unit. appears to be a fully furnished, carpeted, decorated dwelling unit.” Thus, the the barn. It also took note of photographs in the record “depicting what sink, bed, plumbing, electricity, heat, air conditioning, and other amenities in The trial court noted that the respondent admitted to having a stove, p. 8 8

attorney prevailed, and the benefit thereby bestowed on his clients. municipality shall recover its costs and reasonable

devoted, the customary fees in the area, the extent to which the ordinance, code or regulation adopted under this title . . . the

litigation, the attorney’s standing and the skill employed, the time injunctive relief as provided by RSA 676:15 or otherwise, any local

RSA 676:17, II (200 p. 8 8) (emphasis added.) In Funtown

the amount involved, the nature, novelty, and difficulty of the In any legal action brought by a municipality to enforce, by way of

in determining whether an attorney’s fee is reasonable.” Funtown RSA 676:17, II provides, in part:

erroneously failed to conduct “any analysis as to whether the amount The respondent next contends that even if fees were awardable, the court prevailing party in the action.

all cases, the case he cites in support, it.” Arcidi v. Town of Rye 356. They are:

Code of Professional Responsibility,” we set forth “eight guiding factors for use because there [was] no § 19 p. 8 83 claim being made here”)., “taking our cue from the

676:17, II. We apply our own law of fee shifting in such cases. Cf actually expended in pursuing the legal action if it is found to be a award of summary judgment, we reject this argument. attorney’s fees

we have adopted the federal “lodestar” approach to awarding attorney’s fees in some support in the record for the trial court’s determination, we will uphold

shifting case, relied upon by both parties, was “not controlling authority USA, Inc. v. Town of Conway, 129 N.H. 352, 356 (19 p. 8 87) (noting the federal fee

action to enforce a zoning ordinance, for which fees are awardable under RSA have been granted, an award of fees was not warranted. Because we affirm the were sought under 42 U.S.C. § 19 p. 8 88. The instant case, by contrast, is a state 1015 (1982), involved a federal claim under 42 U.S.C. § 1983, for which fees The respondent first argues that because summary judgment should not

reasonable.” We note initially that while the respondent seems to assume that extent clearly unreasonable to the prejudice of the objecting party. If there is ‘prevailed’ on, or whether the hourly rate charged by the Town’s law firm is claimed by the Town’s attorneys is reasonably related to the claims [the Town]

discretion must have been exercised for reasons clearly untenable or to an v. Widney, 155 N.H. 65 p. 8 8, 664-65 (2007). “To be reversible on appeal, the deference accorded a trial court’s decision on attorney’s fees.” Demers Agency exercise of discretion standard[,] . . . keep[ing] in mind the substantial p. 9 9

the trial court’s order on the motion for summary judgment.

the ten month period between the filing of the initial petition and nature of pleadings that were filed by the respective parties during campground and the use of the barn, as well as the number and

the pleadings that addressed the use of the property as a

for the bench trial. The trial court was familiar with the scope of presented, prepare the motion for summary judgment, and prepare the scope of work required to conduct discovery on the two issues

judgment and awarded the attorney’s fees. She was well aware of Judge Wageling presided at the trial on the motion for summary

estimate in light of its familiarity with the case. As the Town argues:

The trial court could have assessed the accuracy of Attorney Belanger’s

than on the two claims for which the Town moved to non-suit. claims, I spent more time on those two claims during this litigation achieving compliance. Based on the priority placed on those

than a wild guess support the fifty percent fee award because “counsel could offer nothing more were the claims for which the Town was most interested in The respondent argues that the invoices and attorney’s affidavit do not From the beginning of the litigation, those two successful claims

He averred:

estimate of the time spent on the successful claims was simply a wild guess.

incurred in the matter. The court awarded fees in that amount. therefore suggested that the court award only half of the fees the Town actually devoted to the two claims on which the Town won on summary judgment.” He The record does not support the contention that Attorney Belanger’s

of fees related to a particular issue is correct.”

“confident that well over 50 percent of the time that [he] spent on this case was

on more [than] an attorney’s mere ‘confidence’ that his guess about the amount

zoning violations for which the Town sought relief” but was nevertheless are not recorded in a manner that distinguishes among the four claims of fees with appended copies of invoices. He acknowledged that “[t]hose invoices [successful] claims,” and “[a]n award of fees against a litigant should be based

as to the number of hours actually spent on the two

Jeffrey Belanger, the Town’s counsel, submitted an affidavit of attorney’s

of success in the action. dealing with the attorney’s skill, the customary fees in the area, and the extent Id. (quotations omitted). Here the respondent’s challenges implicate the factors p. 10 Funtown area” is a factor to consider in determining reasonableness of the overall fee, whether the overall fee charged was reasonable. While “customary fees in the

Belanger’s hourly rate was reasonable, but, rather, was required to determine

trial court, however, was not required to specifically find that Attorney customarily charged by attorneys for similar work in his geographic area.” The charged was reasonable in light of his experience level and the rates

to provide sufficient information to determine whether the hourly rate he The respondent also contends that “Attorney Belanger’s affidavit fail[ed]

deference accorded a trial court’s decision on attorney’s fees,” Demers Agency fees actually incurred by the Town. “Keep[ing] in mind the substantial The trial court awarded $15,450.48 in attorney’s fees, fifty percent of the DALIANIS, C.J., and CONBOY, J., concurred.

render the trial court’s conclusion incorrect. Affirmed. on this issue. waived. See In re Estate of King, 149 N.H. 226, 230 (2003). Finally, any issue raised in the notice of appeal but not briefed is deemed

discretion. 155 N.H. at 665, we cannot conclude that the court unsustainably exercised its

have been helpful to the trial court, the absence of such evidence does not to have been spent on the successful issues was reasonable. We find no error, 129 N.H. at 356 (quotation omitted), and evidence of the same might

given its involvement in the ongoing proceedings, to find that the time claimed without Attorney Belanger’s estimate, it was within the trial court’s discretion, upon which the Town prevailed as opposed to the claims it nonsuited. Even Attorney Belanger’s conservative estimate of the time he spent on the issues We conclude that it was within the trial court’s discretion to accept