2011-776, Town of Carroll v. William Rines

Gardner Fulton and Waugh P.L.L.C.

No. 2011-776 Coos

The parties stipulated to, or the record supports, the following facts. The THE SUPREME COURT OF NEW HAMPSHIRE

Carroll (Town), and that imposed civil penalties and attorney’s fees. See

, of Concord (Bruce J.

676:17 (2008 & Supp. 2012). We affirm in part, vacate in part, and remand. page is: http://www.courts.state.nh.us/supreme. RSA a.m. on the morning of their release. The direct address of the court's home property until he obtained a local use variance from the petitioner, Town of reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 Superior Court (Vaughan, J.) that enjoined him from excavating on certain real CONBOY, J. The respondent, William Rines, appeals an order of the

Marshall on the brief and orally), for the respondent. D’Amante Couser Pellerin & Associates, P.A.

on the 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

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as material does not constitute excavation pursuant to RSA 155-E:1, II (2002); (4)

p. 2 155-E does not preempt the variance requirement; (3) the removal of stockpiled

excavate in the R-B district; (2) the trial court erred by ruling that RSA chapter construing the Town’s zoning ordinance to require him to obtain a variance to On appeal, the respondent argues that: (1) the trial court erred by

respondent appealed. 2009, and June 22, 2010; and awarded mandatory attorney’s fees. The penalties pursuant to RSA 676:17, I, for the period between December 29,

stipulation. Instead, it enjoined him from excavating on the lots; imposed civil

ordinance. The court did not find the respondent in contempt for violating the excavating; and (3) RSA chapter 155-E did not preempt the Town’s zoning Town’s zoning ordinance required the respondent to obtain a variance before

were exempt from the permitting requirements of RSA chapter 155-E; (2) the

Ultimately, the trial court concluded that: (1) both types of excavation

way. or for purposes incidental to constructing a building, structure, parking lot, or

ceased all excavation, June 22, 2010, he excavated either for highway purposes court order of June 22, 2010, denying the respondent’s request for ex

from the date of subdivision approval to the date on which the respondent approval in the spring of 2010, he excavated for highway purposes; and (2) excavating on those lots. Further court proceedings ensued, resulting in a stipulation, December 29, 2009, until the respondent received subdivision

planning board to subdivide the two lots he owns; thereafter, he began engaged in two types of excavation on the four lots: (1) from the date of the In the spring of 2010, the respondent received approval from the

penalties and attorney’s fees. The trial court found that the respondent petition to enjoin the respondent’s excavation activities and recover civil material from the lots for use on highway projects. In June 2011, the trial court held a final hearing on the Town’s original

the stipulation, he continued to remove previously excavated, stockpiled ordinance, and posted any required bonds. After the respondent entered into permit from the planning board and a variance pursuant to the Town’s zoning

ground.” agreed not to excavate during the pendency of the lawsuit unless he obtained a

court order, the respondent “has not severed any further materials from the relief. According to the parties’ agreed upon statement of facts, following that approved a stipulation between the parties pursuant to which the respondent as well as the Town’s zoning ordinance. On December 29, 2009, the trial court parte contending that he was in violation of RSA chapter 155-E (2002 & Supp. 2012),

2009, the Town filed a petition to enjoin him from excavating on all four lots, purposes in Carroll’s Residential Business District (R-B district). In October p. 3 See

highway excavation. The Town’s ordinance is a permissive zoning ordinance.

not expressly require a variance, he is not required to obtain a variance for We reject the respondent’s contention that, because the ordinance does

respondent. The ordinance does not permit, by special exception or otherwise,

p. 3 See variance for an approved subdivision. absence of a variance, excavation in the R-B district is generally prohibited. district, nor allows excavation as a special exception. Accordingly, in the 3

Nor is the variance requirement limited to gravel pits, as asserted by the

violative of the zoning regulations”).

Town has not previously interpreted the ordinance to require an excavation not require a variance; (2) the ordinance regulates gravel pits only; and (3) the granting of a special exception. Article III neither permits excavation in the R-B pursuant to the Town’s ordinance because: (1) on its face, the ordinance does

law, which we review de Town’s R-B district. The interpretation of a zoning ordinance is a question of the “authority granted to the owner to use his property in a manner otherwise New London v. Leskiewicz, 110 N.H. 462, 466 (1970) (defining variance as exception. p. 3 See within each district, and specifies uses that are allowed only by special

the uses permitted within each district and the uses allowed only upon the The respondent argues that he is not required to obtain a variance Gilmanton, 156 N.H. 813, 815 (2008) (quotation omitted). Article III sets forth expressly permitted or incidental to uses so permitted.” Tonnesen v. Town of id. art. III, sec. 304. That is, it is “intended to prevent uses except those

(Breton Woods)” and “Industrial” districts by special exception. p. 3 See

Town’s zoning ordinance to require him to obtain a variance to excavate in the

The ordinance establishes districts, expressly sets forth permitted uses

special exception within the R-B district. p. 3 See common and approved usage of the language. Id id. art. III, sec. 303.3. sec. 303.2, 303.4. The ordinance does not expressly allow excavation by

the ordinance does allow certain excavation activities in the “Residential Excavation is not a use permitted as of right in any district. p. 3 See id. However, The respondent first contends that the trial court erred by construing the Town of Carroll Zoning Ordinance, art. III, sec. 301, 303.

by awarding mandatory attorney’s fees.

itself for further indications of legislative intent. Id. ordinance is plain and unambiguous, we need not look beyond the ordinance

(2010). We construe the words and phrases of an ordinance according to the

between December 29, 2009, and June 22, 2010; and (5) the trial court erred there was insufficient evidence to conclude that the respondent excavated law.” Forsberg v. Kearsarge Reg’l Sch. Dist. p. 4 municipal legislation is invalid if it is repugnant to, or inconsistent with, State

those expressly permitted or incidental to uses so permitted

variance requirement. “The preemption doctrine flows from the principle that

noted above, a permissive zoning ordinance is “intended to prevent uses except construction of an otherwise permitted building, we conclude that it erred. As required to obtain a variance to conduct excavation incidental to the

We next consider whether RSA chapter 155-E preempts the Town’s

proceedings consistent with this opinion.

excavation, see To the extent, however, that the trial court ruled that the respondent was respondent had obtained all necessary state and local permits for the excavation was incidental to the construction of a building, and whether the

conflict exists when a municipal ordinance or regulation permits that which a preempts local law when there is an actual conflict between the two. Id. A excavation incidental to construction of a building, and remand for further legislative intent to supersede local regulation. Id. State law also impliedly when the comprehensiveness and detail of the State statutory scheme evinces respondent argues implied preemption. Implied preemption may be found Envtl. Servs. v. Town of Bethlehem, 150 N.H. 606, 611 (2004). Here, the (quotation omitted). “Preemption may be express or implied.” N. Country allows the excavation. It is unclear on this record what portion, if any, of the, 160 N.H 264, 269 (2010)

of the trial court’s order finding that a variance is required to conduct

RSA 155-E:2-a, I(a) (2002). As a result, we vacate that portion

doctrine of administrative gloss, which is a rule of statutory construction. See excavation for use in highway projects in the R-B district. ordinance to require the respondent to obtain a variance before engaging in allowable under the ordinance regardless of whether the ordinance expressly conclude that the trial court did not err by interpreting the Town’s zoning incidental to the construction of an otherwise permitted building is, therefore, N.H. at 815 (quotation omitted) (emphasis added). Excavation that is merely

applicants over a period of years without legislative interference.” Id

relevant to our analysis. We construe the respondent’s argument to assert the Further, the Town’s prior interpretation of the zoning ordinance is not ordinance is not ambiguous. Thus, we reject the respondent’s argument and Anderson v. Motorsports Holdings, 155 N.H. 491, 502 (2007). Here, the Town’s ordinance precludes application of the administrative gloss doctrine.” (quotation omitted). However, “a lack of ambiguity in a statute or [an]

interpret the clause in a consistent manner and apply it to similarly situated upon an ambiguous clause when those responsible for its implementation Petition of Kalar, 162 N.H. 314, 321 (2011). “Administrative gloss is placed

without merit. excavation within the R-B district. As a result, the respondent’s argument is p. 5 (b) Such excavation shall not be exempt from local zoning or

to the following: . . . . reconstruction, or maintenance of the highway, subject, however, unit of government which has a contract for the construction,

government having jurisdiction for the highway or an agent of the

zoning regulations relative to the excavation], or from the

or maintenance of a class I, II, III, IV or V highway by a unit of performed exclusively for the lawful construction, reconstruction, No permit shall be required . . . for excavation which is Department of Transportation or its agent an exemption from local

exempt from permitting. See Transportation Appeals Board, following a hearing, grants the “operational” and “reclamation” standards, whether or not the excavation is finding. RSA 155-E:2, IV provides, in part: other applicable ordinances, unless [the New Hampshire

those that are exempt from permitting. See

See

E:3 (2002). The statute also requires that excavations comply with permit-exempt under RSA 155-E:2, IV. The respondent does not challenge that The trial court found that the respondent’s excavation activities were

Guildhall, 155 N.H. at 765. provided such requirements do not conflict with RSA chapter 155-E, see excavations. The statute delineates those excavations that require permits and must also comply with other requirements established by local regulations, standards are deemed “minimum standards,” see id., and such excavations RSA 155-E:4-a, :5. With regard to excavations that require a permit, those language that the legislature did not see fit to include.” Id permit-exempt excavations, those standards are deemed “express standards.”

regulator in each city or town involved for a permit for excavation.” RSA 155- See which we review de RSA 155-E:2. If a permit is required, the owner must “apply to the Excavations that are not specifically exempt under the statute require a permit.

We begin with the statute. RSA chapter 155-E regulates local

written and will not consider what the legislature might have said or add considered as a whole.” Id. “We interpret legislative intent from the statute as arbiters of the legislature’s intent as expressed in the words of the statute N.H. 762, 764 (2007). “In matters of statutory interpretation, we are the final

Whether a State statute preempts local regulation is a question of law,

ordinance does not expressly conflict with a State statute, it will be preempted State statute prohibits or vice versa. Id. Moreover, even when a local standards. All other local regulations applicable to highway excavation are not

p. 6 purposes only with respect to the statutory operational and reclamation

regulating excavations. Arthur Whitcomb, Inc. v. Town of Carroll RSA chapter 155-E constitutes a comprehensive, detailed scheme

regulation of excavation undertaken exclusively for highway construction Thus, RSA 155-E:2, IV evinces the legislature’s intent to preempt local must comply in order to retain their non-permit status.” RSA 155-E:2, IV(b).

respondent’s excavation for highway purposes. We agree with the Town.

standards, which “shall be the sole standards with which such excavations

legislature’s intent not to preempt its variance requirement for the however, that the plain language of RSA 155-E:2, IV(b) reflects the requirement is preempted by RSA chapter 155-E. The Town argues, more stringent regulations upon those types of excavations.” Id

granted an exemption],” or from certain statutory operational and reclamation applicable ordinances, unless [the Department of Transportation or its agent is certain highway projects “shall not be exempt from local zoning or other

that his excavations were permit-exempt, the Town’s variance simultaneous state and local regulations of the same activity.” Id roads and other governmental infrastructure to the public by curtailing standards, “it follows that municipalities are not preempted from imposing

and those not requiring permits differ.” Guildhall

407. The statute specifically provides that excavation performed exclusively for found in [the statute] are not unconditional.” Arthur Whitcomb, 141 N.H. at require permits and those that do not. See regulation because “[t]he exemptions from local ordinances and regulations all permit-exempt excavations are relieved of the obligation to comply with local

part, to increase the supply of construction materials and decrease the cost of Because excavations requiring permits are subject only to “minimum” (Emphasis added.)

legislative intent that the standards applied to excavations requiring permits that are permit-exempt. See RSA 155-E:4-a, :5. This classification “evince[s] a excavations that require permits and “express” standards for those excavations establishes “minimum” operational and reclamation standards for those

(quotation omitted). The statute distinguishes between excavations that

402, 406 (1996). “The legislature’s purpose in enacting [the statute] was, in

comply in order to retain their non-permit status as provided shall be the sole standards with which such excavations must

RSA 155-E:4-a, 155-E:5 and 155-E:5-a, which express standards operational and reclamation standards as expressly set forth in p. 7 In Guildhall

Indeed, in Arthur Whitcomb

upon those types of excavations.” Id municipalities are not preempted from imposing more stringent regulations requirements for excavations that require a permit, it follows that

and is at odds with the express statutory provisions relevant here. Thus, we however, is inconsistent with the underlying reasoning in Arthur Whitcomb, excavations would be preempted. See does not invalidate express statutory provisions that authorize local legislation. id. at 767-68. This broad statement, We also stated, in dicta, that ordinances purporting to regulate permit-exempt The respondent argues that our holdings in Arthur Whitcomb Whitcomb holding applies only to permit-exempt excavations. See id. at 767. use regulations[,] except where specifically indicated to the contrary. Further, we clarified that the Arthur

Arthur Whitcomb has clearly stated that RSA chapter 155-E contains only ‘minimum’ See Guildhall, 155 N.H. at 765. We concluded that “because the legislature ordinances,” RSA 155-E:2, IV(b), is not unconditional. Id the legislature did not intend to preempt local regulation of such excavation.

, a case involving permit-required excavation, we held that

provisions in this case. The generally preemptive effect of the statutory scheme 408. Thus, nothing in Arthur Whitcomb frustrate State authority. vitiates the controlling statutory RSA 155-E:2, I, III, and IV.”)..” Id. at that “the legislature generally intended chapter 155-E to preempt local land legislation.” Id. Likewise, we quoted with approval the trial court’s conclusion effect or intent of frustrating State authority” to regulate the field of excavation. redundant or unnecessary in a statutory scheme that preempts local omitted). We noted, therefore, that such a provision “cannot be deemed

excavation shall not be exempt from local zoning or other applicable regard to highway excavation, the statutory provision stating that “[s]uch

excavation, we conclude that such authorized local regulation does not legislature specifically authorized local regulation in connection with highway regulation shall supersede the sole applicability of express standards under restriction or higher standard shall be controlling, except that no local, 141 N.H. at 409 (quotation omitted). Given that the provisions of [RSA chapter 155-E], the provision which imposes the greater intended to preempt “only local ordinances and regulations that would have the see RSA 155-E:2, III, we held that by enacting the statute, the legislature excavation associated with a permit-exempt stationary manufacturing plant, variance requirement. We disagree. In Arthur Whitcomb, a case involving Guildhall support the conclusion that RSA chapter 155-E preempts the Town’s

155-E:11, I (Supp. 2012) (“Whenever . . . local regulations differ from the preempted, unless an exemption from those regulations is granted. See RSA municipality shall p. 8 violation of the zoning ordinance. RSA 676:17, II provides that “the

attorney’s fees pursuant to RSA 676:17, II based upon the respondent’s

it did not impose them pursuant to RSA 155-E:10, II; rather, the court imposed order. Although the trial court concluded that attorney’s fees were mandatory, respondent’s argument stems from a misunderstanding of the trial court’s

of attorney’s fees under RSA 155-E:10, II is mandatory. However, the

Specifically, he contends that the trial court erred in concluding that the award

the Town is entitled to attorney’s fees as the prevailing party in this case. Finally, the respondent contends that the trial court erred by ruling that

penalties.

incidental to such construction and shall revisit the issue of statutory trial court shall determine the extent to which any excavation was conducted excavation is allowed under the ordinance without a variance. On remand, the

incidental to construction of an otherwise permitted building – which

which they are based upon excavation that may have been conducted trial court’s imposition of statutory penalties because it is unclear the extent to argument as it relates to such activity. However, we nonetheless vacate the

removal of previously excavated, stockpiled material, we reject the respondent’s

sustainably found that a variance is required under the ordinance for the

the parties’ stipulation or RSA chapter 155-E. Because the trial court respondent’s argument stems from his assertion that he did not violate either ordinance violations) for the entire period of his excavation activities. The

that he was subject to penalties under RSA 676:17, I (setting forth penalties for

Next, the respondent argues that the trial court erred when it determined as with the trial court’s imposition of statutory penalties, it is unclear the previously excavated, stockpiled material is permitted under the ordinance.

676:17, II is mandatory. See

Nonetheless, we vacate the trial court’s award of attorney’s fees because, ruling, and the respondent does not, on appeal, assert that the removal of

the action.” (Emphasis added.) The award of attorney’s fees pursuant to RSA

violated the Town’s zoning ordinance. The record supports the trial court’s 484 (2008). the statute, the trial court ruled that this conduct, in the absence of a variance, Bennett v. Town of Hampstead, 157 N.H. 477, however, because even if such conduct does not constitute “excavation” under expended in pursuing the legal action if it is found to be a prevailing party in

recover its costs and reasonable attorney’s fees actually

“excavation” pursuant to RSA 155-E:1, II. We need not decide this issue,

the removal of previously excavated, stockpiled material constitutes The respondent next argues that the trial court erred by concluding that

respondent’s argument. conclude that neither Arthur Whitcomb nor Guildhall supports the p. 9 9

.

Affirmed in part; vacated in

reduced to exclude time spent on unsuccessful claims). unsuccessful claims are analytically severable, any fee award should be

the issue of attorney’s fees. See the respondent excavated incidental to constructing a building, it shall revisit Following the trial court’s determination on remand as to the extent to which DALIANIS, C.J., and HICKS, LYNN and BASSETT, JJ., concurred.

part; and remanded

685 (2005) (where party prevails on some claims and not others, and where

conducted incidental to construction of an otherwise permitted building. extent to which the award is based upon excavation that may have been