2011-085, Town of Atkinson v. Malborn Realty Trust & a.

The respondents, Malborn Realty Trust and its trustee,

on the brief, and Mr. McGrath ___________________________ orally), for the respondents. McGrath Law Firm, P.A. and Jason Beecher THE SUPREME COURT OF NEW HAMPSHIRE

and Sumner F. Kalman on the brief, and Mr. Kalman orally), for the petitioner. Sumner F. Kalman, Attorney at Law, P.C. 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 22 as prevailing party and was entitled to its reasonable attorney’s fees pursuant to

p. 2 penalty of $109,725. The trial court also ruled that the Town was the

issued until a sprinkler system is installed in the house; and (3) imposed a civil certificate of occupancy; (2) ruled that no certificate of occupancy could be (1) permanently enjoined Osborn from occupying the premises without a

After conducting a bench trial and a view of the premises, the trial court:

the premises. He and his family did so on July 1, 2010. Town’s request for a preliminary injunction, the court ordered Osborn to vacate

the Town filed such an action. Later that month, following a hearing on the

action for civil penalties and attorney’s fees under RSA 676:17. In March 2010, that the Town could bring an enforcement action under RSA 676:15 and an that occupying the home violated the Town’s building code. The notice stated

On or about December 14, 2009, the Town served Osborn with notice

without a certificate of occupancy. According to the Town’s building code, it is unlawful to occupy a building Nonetheless, the Osborns moved into the home on November 30, 2009.

sprinkler system, the Town declined to issue a certificate of occupancy for it.

They did not install a sprinkler system. Because the home lacked the required without the fire chief’s consent, they installed a driveway with a 13.7% grade. never submitted a satisfactory driveway plan to the fire chief. Ultimately,

grade was 8%, he would accept a driveway with a 10% grade. The Osborns

subsequent meetings, the fire chief told Margaret that although the required driveway with a 23% grade, which the Town immediately rejected. In In October 2008, the Osborns submitted a proposed plan to build a

had poor access to a class V highway. See

conditioned upon the installation of a sprinkler system because the property

could eliminate the need for a sprinkler system.

2

reviewed the application and recommended that the building permit be In 2008, Osborn applied for a building permit. The Town’s fire chief

constructing a new driveway. The fire chief agreed that a satisfactory driveway fire chief to discuss the Osborns’ plan to improve access to the property by On September 30, 2008, Osborn’s wife, Margaret, met with the Town’s

Police and Fire Departments.”

variance was that access to the property had to “meet the requirements of the use and to construct a new three-bedroom home. One condition of the adjustment granted Osborn a variance to convert the property to year-round recommendation, and, in May 2008, issued the conditional building permit. highway classification system). The building inspector adopted this

property was a seasonal camp. In June 2007, the Town’s zoning board of The trial court found the following facts. Before 2007, the subject p. 3 I. Injunction

assess the credibility of the witnesses.” In the Matter of Henry & Henry the best position to evaluate the evidence, measure its persuasiveness and “While the testimony presented by the parties conflicted, the trial judge was in

judgment on such issues as resolving conflicts in the testimony, measuring the circumstances justifying an inference of a relinquishment of it.” Id appeal.

issue,” the trial court credited the fire chief’s version of the conversation.

3

N.H. 175, 180 (2012) (quotation omitted). We defer to the trial court’s expressed in explicit language to forego a right, or upon conduct under the, 163 an award of reasonable attorney’s fees. We first address the respondent’s its cross-appeal, the Town challenges the trial court’s denial of its request for question of fact. So. Willow Properties v. Burlington Coat Factory of N.H. requested injunction and, alternatively, its calculation of the civil penalty. In requirement when he met with Margaret in September 2008. Waiver is a secure a certificate of occupancy because the Town’s fire chief waived this she said exchange.” After considering “all the evidence presented on th[e] 2008] meeting is the core dispute between the parties. It is a classic he said- The respondents first argue that a sprinkler system was not required to Here, the trial court found that “[w]hat was said during [the September

erroneous. Id. omitted). We will not overturn the trial judge’s determination unless clearly Frost v. Comm’r, N.H. Banking Dep’t

N.H. 494, 499 (2009). “A finding of waiver must be based upon an intention erroneous as a matter of law. Rabbia v. Rocha

The respondents challenge the trial court’s decision to issue the

B. Respondents’ Arguments A. Standard of Review

unsustainable exercise of discretion, or clearly erroneous findings of fact.” will uphold the issuance of an injunction absent an error of law, an

court’s factual findings unless the evidence does not support them or they are Envtl. Servs. v. Mottolo, 155 N.H. 57, 63 (2007). We will uphold the trial consideration of the facts and established principles of equity. N.H. Dep’t of It is within the trial court’s sound discretion to grant an injunction after followed. to the respondents’ motion for reconsideration. This appeal and cross-appeal

attorney’s fees of $20,000, it later vacated this award in its entirety in response RSA 676:17, II. Although the court originally awarded the Town reasonable p. 4 Id uphold it. See there is evidence to support this finding, and it is not legally erroneous, we

the installation of fire sprinkler systems in any new or existing detached one-

must have been induced to rely upon the representation to his or her injury. to include. p. 4 Id

represent, falsely or otherwise, that the sprinkler requirement was waived. As 4 considered as a whole. p. 4 Id

municipalities.” Thomas v. Town of Hooksett enforcing “any ordinance, regulation, code, or administrative practice requiring to those who bargain with the agents of municipalities for the promises of the sprinkler system violates Laws 2010, chapter 282. See Laws 2010, chapter 282 precludes a municipality from adopting or The respondents next argue that requiring the Osborns to install the statutory scheme and not in isolation. p. 4 Id.

. We also interpret a statute in the context of the overall intention of inducing the other party to rely upon it; and fourth, the other party legislature might have said or add language that the legislature did not see fit

truth of the matter; third, the representation must have been made with the legislative intent from the statute as written and will not consider what the ascribe the plain and ordinary meaning to the words used. p. 4 Id party to whom the representation was made must have been ignorant of the September 2008 meeting, the trial court found that the fire chief did not. We interpret to their detriment. Here, having credited the fire chief’s version of the. When examining the language of the statute, we arbiter of the intent of the legislature as expressed in the words of the statute Osborns “reasonably relied on th[is] representation . . . and acted accordingly” statutory interpretation de novo. Frost, 163 N.H. at 374. We are the final (Supp. 2011); RSA 155-A:10, VII (Supp. 2011). We review the trial court’s applied to municipalities to prevent unjust enrichment and to accord fairness RSA 153:5, :10-a, III

Rabbia, 162 N.H. at 738.

material facts must have been made with knowledge of those facts; second, the

constituted a waiver of the requirement for a sprinkler system,” and that the The respondents contend that “the representations of the Fire Chief

omitted). install a sprinkler system. “The doctrine of municipal estoppel has been doctrine of municipal estoppel precludes the Town from requiring Osborn to. “Each element of estoppel requires a factual determination.” p. 4 Id. (quotation representations during his meeting with Margaret in September 2008, the The respondents next assert that based upon the fire chief’s

believe even uncontroverted evidence. p. 4 Id or in part, the testimony of any witness or party, and was not required to elements of estoppel are: First, a false representation or concealment of

183. As the fact finder, the trial court was entitled to accept or reject, in whole credibility of witnesses, and determining the weight to be given evidence. p. 4 Id. at occupying the premises until a sprinkler system is installed. See

p. 5 clearly erroneous findings of fact, we uphold its decision to enjoin Osborn from committed an error of law or an unsustainable exercise of discretion, or made Because the respondents have failed to persuade us that the trial court

a permit or decision issued by, any local administrator or land use

case weighs in their favor. Our task on appeal is not to reweigh the equities.

Any person who violates . . . any requirement or condition of

and/or capriciously. In effect, they claim that the balance of equities in this

whole or in part.” Id national fire protection association code or other recognized codes as rules, in

specific requirements” of the NFPA Fire Code. NFPA 1 Uniform Fire Code

provides, in pertinent part: The trial court imposed a civil penalty pursuant to RSA 676:17, I, which case because the fire chief and/or the Town acted arbitrarily, unreasonably, The respondents next assert that an injunction was not warranted in this

5 allows the State Fire Marshall to “adopt the most recent edition of . . . the

. . . result in a fire department access road design that does not meet the mandate sprinkler systems when “[s]ite conditions or unique structure designs Fire Protection Association (NFPA) Fire Code, which allows fire chiefs to

Marshall. See II. Civil Penalty Laws 2010, chapter 282. N.H. at 374.

detached one- or 2-family dwelling units in a structure used only for residential adopting rules that “require automatic suppressant or sprinkler systems in

Laws 2010, chapter 282. We observe that these regulations adopt the National The respondents do not assert that the state regulations at issue violate practice, but instead was adhering to regulations adopted by the State Fire

we hold that requiring the Osborns to install a sprinkler system did not violate 18.2.3.1.4 (2009); see also N.H. Admin. Rules, Saf-C 6008.01-03. Accordingly, Handbook § 18.2.2.1.2 comment at 378 (2003); see NFPA 1 Fire Code §§ 3.2.2,

Laws 2010, chapter 282 also precludes the State Fire Marshall from

Town’s fire chief was not enforcing a municipal ordinance, regulation, code or. enforcing the sprinkler requirement. However, the trial court found that the 2010, 282:4. The respondents argue that this section barred the Town from

supports this finding, we uphold it. See Rabbia, 162 N.H. at 738.

N.H. Admin. Rules, Saf-C 6008.01. As evidence in the record

before July 1, 2011, “unless such adoption is earlier authorized by law.” Laws or 2-family dwelling unit in a structure used only for residential purposes” pointed to, any evidence that this argument was made in the trial court. See

p. 6 was added in 2009 in response to our decision in Town of Amherst v. Gilroy As the respondents rightly concede, the last sentence of RSA 676:17, I,

However, the record does not reflect, and the respondents have not

procedural due process.

to the post-2009 version of RSA 676:17, I, violates their constitutional rights to

penalty imposed was $109,725 ($275 + $109,450). the additional 199 days of the violation ($550 x 199 = $109,450). The total civil miscalculated the civil penalty by assessing the first day of violation at $275 civil penalty of $275 for the first day of the violation and a penalty of $550 for

that version controls. Thus, they argue that imposing a civil penalty pursuant

The respondents assert, in the alternative, that the trial court 2010, when Osborn and his family vacated the premises. The court imposed a

version of RSA 676:17, I, was attached to the notice of violation they received, have been only $275. They contend that because a copy of the pre-2009 trial court. See The respondents first argue that the total civil penalty imposed should 6

address them. See December 14, 2009, when the notice of violation was received, until July 1, Bank of N.Y. Mellon v. Cataldo, 161 N.H. 135, 139 (2010). preserved their procedural due process arguments for our review, we decline to The trial court found that the violation continued for 200 days – from

id. Because the respondents have not demonstrated that they

sufficient to demonstrate that the issues on appeal have been raised before the appealing party, here the respondents, to provide this court with a record Baer v. N.H. Dep’t of Educ., 160 N.H. 727, 732 (2010). It is the burden of the

separate, individual penalty for each day” of violation. Gilroy

last sentence, “a continuing violation [was] a single offense.” See

violation continues shall be a separate offense.

(1993) (construing RSA 236:127). (construing RSA 540-A:4, IX) ; Town of Henniker v. Homo, 136 N.H. 88, 88-90 (quotation omitted); see Simpson v. Young, 153 N.H. 471, 474-75, 478 (2006)

RSA 676:17, I, like other statutes with similar language, “authorizes a the last sentence, which, as the respondents also rightly concede, means that (2008) (amended 2009). Following our decision in Gilroy, the legislature added

278-79, we held that because the pre-2009 version of the statute lacked this 157 N.H. 275 (2008). See N.H.H.R. Jour. 64 (2009). In Gilroy, 157 N.H. at violator is in violation, whichever is earlier. Each day that a, violator receives written notice from the municipality that the violation is found to continue . . . after the date on which the

offense, and $550 for subsequent offenses, for each day that such board . . . shall be subject to a civil penalty of $275 for the first definition of “to expend,” which is “to pay out,” this is not the only meaning of

p. 7 Although the trial court’s decision arguably is consistent with one

not determine what the Town paid counsel for his work on this case. decided that because Town counsel is paid a general retainer, the court could

III. Attorney’s Fees expended” to mean money actually paid to counsel. The trial court evidently

676:17, II. In its ruling, the trial court construed the phrase “actually penalty imposed to $55,000. the reasonable attorney’s fees the Town “actually expended” on this case. RSA $55,000). Accordingly, we modify the trial court’s order to reduce the civil because the Town’s counsel is paid on retainer, counsel could not demonstrate such fees.” Bennett v. Town of Hampstead established judicial exception to the general rule that precludes recovery of

section is mandatory. Id

7 to a penalty of $275 for each of the 200 days of this offense ($275 x 200 = attorney’s fees. The trial court later vacated this award on the ground that

recovery is authorized by statute, an agreement between the parties, or an

(Emphasis added.) An award of prevailing party attorney’s fees under this

fees unless it is an unsustainable exercise of discretion.” Id

is at issue. Pursuant to RSA 676:17, I, therefore, the respondents are subject The trial court initially awarded the Town $20,000 as its reasonable Here, because the Town issued only one notice of violation, only a “first offense” receives written notice from the municipality that the violator is in violation.” RSA 676:17, II. “A prevailing party may be awarded attorney’s fees when that. at 484-85. declined to award the Town any of its reasonable attorney’s fees pursuant to In its cross-appeal, the Town argues that the trial court erred when it expended in pursuing the legal action if it is found to be a prevailing party.” “the municipality shall recover its costs and reasonable attorney’s fees actually RSA 676:17, II provides that in an enforcement action, such as this one, phrases, but instead we consider the statute as a whole.” Appeal of Alexander

(quotation omitted). “We will not overturn a trial court’s award of attorney’s

conclude that word “offense” refers to the violation(s) for which “the violator

“[W]hen interpreting statutes, we do not merely look at isolated words or

each of the 200 days of the offense, or $55,000. We agree.

$550 per day “for subsequent offenses.” Reading RSA 676:17, I, as a whole, we 676:17, I, the civil penalty imposed is $275 per day “for the first offense” and 163 N.H. 397, 409 (2012) (quotation omitted). Under the plain meaning of RSA

one notice of violation, the penalty imposed should have been $275 per day for and each subsequent day at $550. They contend that because there was only p. 8 8

Affirmed in part; modified in

proceedings consistent with this opinion. was not entitled to any of its reasonable attorney’s fees, and remand for further

enforcement action. Therefore, we reverse the trial court’s ruling that the Town

DALIANIS, C.J., and HICKS and LYNN, JJ., concurred. award of reasonable attorney’s fees to a prevailing municipality, see remanded. part; reversed in part; and

retainer that has been depleted because of the attorney’s work on the retainer agreement, the phrase “actually expended” means the amount of the 157 N.H. at 4 p. 8 84-85, we hold that when a municipal attorney is paid under a

Given the evident purpose of RSA 676:17, II, which is to mandate an

retainer is “consumed by use” when it is depleted. 2002). Another definition of “to expend” is “to consume by use.” Id. A general the word. Webster’s Third New International Dictionary 799 (unabridged ed.