2020-0316, Town of Lincoln v. Joseph Chenard

prop erties at issue, consisting of four lots located in the town’s “General Use” The trial court found the following facts. The defendant owns the

I. Background

costs and attorney’s fees. See RSA 676:17, II (2016). We affirm. Town of Lincoln (town), cross - appeals the trial court’s denial of its request for junk yard i n violation of RSA 236:114. See RSA 236:114 (2009). The plaintiff, the Superior Court (MacLeod, J.) ruling that he is operating or maintaining a M AC DONALD, C. J. The defendant, Joseph Chenard, appeals an order of

brief and orally), for the defendant. Bruce J. Marshall Law Offices, PLL C, of Bow (Bruce J. Marshall on the

Dennis on the brief, and Peter J. Malia orally), for the plaintiff. Hastings Malia P.A., of Fryeburg, Maine (Peter J. Malia and Jason B.

No. 2020 - 0316 Grafton

page is: https://www.courts.nh.gov/our - courts/supreme - court 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 email at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concor d, 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 p. 2 22 as 2

a junk yard without specifying which of his individual properties business personal properties; ( p. 2 2) determining that the defendant was operating law by: (1) applying the provisions of RSA 236:11 1 -: 129 to the defendant’s non - On appeal the defendant argues that the trial court erred as a matter of

II. Analysis

under the zoning ordinance. This appeal followed. concluded that the defendant was not using his properties as “Junk Yards” b elonged to him and were stored there for his personal use, the court yard. Because all of the materials stored on the defendant’s properties under the ordinance, the defendant must sell junk in order to operate a junk enforce the local zoning ordinance. Nonetheless, the court determined that, the court agree d it had overlooked that the tow n’s petition also sought to town’s request to reconsider the trial court’s denial of costs and attorney’s fees, motion for reconsideration, and modified its order in part. In addressing the denied the defendant’s motion for reconsideration, partially granted the town’s Subsequently, the parties each moved for reconsideration. T he court

for costs and attorney’s fees. satisfaction. See RSA p. 2 236:128, III. The trial court denied the town’s request continued and until such time as the nuisance was abated to the town’s impose a civil penalty of up to $50 per day for every day the nuisance the nuisance by a certain date and, if he fail ed to do so, authorized the town to The court ordered the defendant to end his violation of RSA 236:114 and abate and that his properties are, therefore, a nuisance. See RSA 236:119 (2009). defendant is operating or maintaining a junk yard i n violation of RSA 236:114 fees, see RSA 676:17, II. Following a hearing, the trial court found that the penalties, see RSA 236:128, III (2009), and an award of costs and attorney’s town’s zoning ordinance. In addition, the town sought t he imposition of civil junk yard in violation of RSA 236:114, see RSA 236:128, I (2009), and the The town sought injunctive relief t o stop the defendant from operating a

town. operate a junk yard business, nor does he have a special exception from the stored there for his personal use. The defendant does not have a license to of the material s stored on the defendant’s properties belong to him and are snowmobiles, lawnmowers, and ATVs, an old boat, and two semi - trailers.” All automobiles that did not appear to be in working order, as well as old plastic barrels, and other detritus.” In addition, the court observed “several cables and wiring, woodstoves, snowplows, construction debris, steel drums, scrap metal including numerous machine or automotive parts, tires, wheels, condition.” During its view of the properties, the court observed “old or used outdoors and in a number of sheds, which are generally in a dilapidated properties contain “large amounts of personal belongings” stored “both zoning district, which allows junk yards only by special exception. The p. 3 3

Regulation, Protection and Control R egulations.” RSA 2 p. 3 36:111 -:1 29 (2009 & RSA c hapter 236 contains several subdivisions setting forth “Highway

B. State Junk Yard Statute

determination, we will uphold it.” Id. (quotation omitted). [appealing] party. If there is some support in the record for the trial court’s untenable or to an extent clearly unreasona ble to the prejudice of the on appeal, the discretion must have been exercised for reasons clearly under an unsustainable exercise of discretion standard. Id. “To be reversible (2008) (quotation omi tted). We review the trial court’s denial of attorney’s fees or her own counsel fees.” In the Matter of Martel & Martel, 157 N.H. 5 p. 3 3, 63 established exception to the rule that each party is responsible for paying his authorization, a court rule, an agreement between the parties, or an “An award of attorney’s fees must be grounded upon s tatutory

(2019). phrases.” Working Stiff Partners v. City of Portsmouth, 172 N.H. 611, 616 ordinance from its construction as a whole, not by construing isolated words or Townsend, 164 N.H. 241, 246 (2012). “[W]e determine the meaning of a zoning the common and approved usage of the language.” Town of Barrington v. our review, we construe the words and phrases of an ordinance according to review de novo. Because the traditional rules of statutory construction govern “The interpretation of a zoning ordinance is a question of law, which we

overall statutory scheme. Id. at 22. statutes in isolation; instead, we attempt to con strue them in harmony with the unjust result. Anderson, 172 N.H. at 22 - 2 p. 3 3. However, we do not construe a statute together to effectuate its overall purpose and avoid an absurd or to include. In re J.P., 173 N.H. 453, 460 (2020). We also construe all parts of legislature might have said or add language that the legislature did not see fit every word of a statute whenever possible and will not consider what the l anguage according to its plain and ordinary meaning. Id. We give effect to first look to the language of the statute itself and, if possible, construe that interpretation de novo. Anderson v. Robitaille, 172 N.H. 20, 22 (2019). We Corpening, 153 N.H. 571, 573 (2006). We review the trial court’s statutory evidence and are not erroneous as a matter of law. City of Rochester v. We defer to the trial court’s findings of fact if they are supported by the

A. Standards of Review

pursuant to RSA 676:17, II. through legal action,” it is entitled to an award of its costs and attorney’s fees fee s, conten ding that because it “prevailed in enforcing its zoning ordinance town argues that the trial court unsustainably denied its request for attorney’s qual ified as such; and ( p. 3 3) applying the wrong statute. In its cross - appeal, the p. 4 4

that junk yards as defined in the subdivision were useful and necessary clearly intended” the statutory scheme “to apply to businesses when they wrote The defendant argues that the trial court erred because “[t]he Legislature

not in conflict with the express purposes of this subdivision. useful and necessary business and ought to be encouraged when maintenance of junk yards as defined in this subdivision, is a its citizens. At the same time, it is recognized that the importance to the economy of the state and the general welfare of which is hereby declared to be of significant and proven continued development of the tourist and recreational industry envi ronment is considered essential to the maintenance and rights against unwarrantable invasion. In addition, such an and safety of the inhabitants and the safeguarding of their material attractive environment is declared to be of importance to the health the tou rist industry within the state. A clean, wholesome, people of the state through encouragement to the development of welfare, and to further the economic growth and stability of the to conserve and safeguard the public safety, health, morals, and

RSA 2 36:112, I. The express purpose of the subdivision is

or other old or scrap ferrous or nonferrous material. dismantled, or wrecked motor vehicles, or parts thereof, iron, steel, rags, batteries, paper, trash, rubber debris, waste, or junked, trading, or otherwise transferring old or scrap copper, brass, rope, a place used for storing and keeping, or storing and selling,

236:12. “Junk yard” is defined as junk yards as defined in RSA 236:112, I. See RSA 236:111 - a, I; see also RSA W ith two exceptions not applicable here, the subdivision applies to all

denied w ithin two weeks. See RSA 236:116 -:118, :120 -:121. the junk yard, and aesthetics, the application must either be approved or applicant to comply with regulations applicable to junk yards, the location of governing body takes into account, among other things, t he suitability of the zoning ordinance. See RSA 236:11 p. 5 5. Following a hearing at which the local zoning board of adjustment that the proposed location does not violate the municipality’s local gover ning body, accompanied by a certificate from the the junk yard.” To obtain a license, an applicant must apply in writing to the yard business and (2) has obtained a certificate of approval for the location of maintain a j unk yard. . . until he (1) has obtained a license to operate a junk yards. Pursuant to RSA 236:11 p. 4 4, “[a] person shall not operate, establish, or Supp. 2020). RSA 236:111 -: 129 cover motor vehicle recycling yards and junk 5

render some provisions superfluous is inconsistent with legislative intent). Silva v. Bot s ch, 120 N.H. 600, 602 (explaini ng that construing a statute to exception set forth in RSA 236:111 - a, III would be rendered superfluous. See in RSA 236:112, I, w ere intended to cover only commercial junk yards, the premises are owned b y the property owner.” Id. If the definition of junk yard that, among other requirements, “[a]ll antique motor vehicles kept on the the subdivision “shall not apply” to such “noncommercial” activities provided vehicle restoration activities.” RSA 236:111 - a, III. Pursuant to that section, definition of junk yard in RSA 236:112, I, for “noncommercial antique mot or Furthermore, the subdivision expressly creates an exception from the

supplement it.”). Texts p. 5 57 (2012) (“[P] urpose. . . cannot be used to contradict text or to Antonin Scalia & Bryan A. Garner, Reading Law: The Inter pretation of Legal to effectuate its overall purpose and avoid an absurd or unjust result.”); Belmont, 172 N.H. 61, 65 (2019) (“[W] e construe all parts of a statute together junk yards not operated as a commercial business. See Appeal of Town of yard, we determine that the word “business” in RSA 236:111 encompass es purposes of the statute together with the broad statutory definition of junk occu pies time and demands attention and effort.” Id. Construing the evident visited Jan. 15, 202 2). Another defi nition of “business” is “actio n which https://www.oed.com/view/Entry/25229?redirectedFrom=business#eid (last meaning of the word. The Oxford English Dictionary, company, firm, or enterprise conducting such activity,” this is not the only A lthough one definition of the word “business” is “[a] commercial

recreation. See id. “essential to” main taining and developing the industries of tourism and importance “to the health and safety of the inhabitants” of the state and tourism; and declare that a clean, wholesome and attractive environment is of safety, health, morals, and welfare”; further economic growth by encouraging consistent with the express purposes to “conserve and safeguard the public Our interpretation of the plain and ordinary meaning of “junk yard” is

items are also stored and sold. which he must obtain a license under RSA 236:114, regardless of whether the listed at “a place” and thereby be considered to “maintain” a junk ya rd for ordinary meaning of the words used, a person can “stor [e] and keep []” the items items enumerated in the statute. RSA 236:112, I. Thus, under the plain and “storing and keeping” or “storing and selling” or “otherwise transferring” the As defined in the subdivision, a junk yard includes “a place” used for

statute.” (Quotation omitted.) We agree with the town. of business, “but may be any ‘place’ used for the purposes enumerated in that correctly conc luded that under RSA 23 p. 6 6:112, a junk yard need not be a place businesse s.” (Bolding omitt ed.) The town counters that the trial court 6

yard must sell junk. The town asserts that under the definition of junk yard in “went beyond” that finding to interpret the ordinance and conclude that a junk constitutes” a junk yard under the zoning ordinance, the court erroneously RSA 23 p. 6 6:1 12 “to determine whether a landowner’s use of his property court found that the town “applies the definition of ‘junk yard’” contained in RSA 676:17, II. In its cross - appeal, the town argues that, because the trial and, therefore, the tow n was not entitled to recover its attorney’s fees under his properties constituted a junk yard use under the town’s zoning ordinance The trial court ruled th at the town failed to prove the defendant’s use of

C. Attorney’s Fees

is operating or maintaining a junk yard in violation of RSA 23 p. 6 6:114. RSA 236:111 -: 129 apply to the defendant’s properties, and that the defendant We hold that the trial court did not err in finding that the provisions of

of business.” RSA 23 p. 6 6:91, IV; see RSA 236:90 (2009). interstate and turnpike system, but which are not “an es tablishment or place “junk yard” in RSA 236:112, I, including those that are located adjacent to the authority to regulate all junk yards in the town that fall within the definition of RSA 236:111 - a, I. Accordingly, purs uant to RSA 236:111 - a, the town has 236:112, I, including . . . those subject to regulation under RSA 236:90 - 110.” provisions of RSA 236:111 -: 129 “apply to all junk yards, as defined by RSA outside that de finition of junk yard. See RSA 236:91, IV (2009). However, the business,” the defendant asserts that his non - business use o f his property falls yard under that subdivisio n is defined as “an establishment or place of 236:90 -: 110 is the “correct” statutory subdivision to apply. Because a junk are within New Hampshire’s limited access highwa y system for I - 93,” RSA Finally, the defendant argues that because “the subject parcels of land

is operating or maintaining a junk yard. See RSA 23 p. 6 6:112, I. collectively the defen dant’s properties constitute a “place” where the defendant found that each of the parcels satisf ies the definition of “junk yard” and, thus, identified in” the statute. We read this language to mean that the trial court “is usi ng his properties to store and keep . . . most, if not all of the items amounts of personal belongings that he stores at his Properties,” and that he its view of those properties, including that the defendant “has amassed large another. The trial court’s order reflects the court’s observation s made during properties include his house lot and three lots across the street adj acen t to one as to which of the lots are junk yards.” We disagree. The defendant’s ‘place’ not places,” and “[y]et the Trial Court Order is devoid of any affirmation omitted.) According to the defendant, RSA 236:112 “is in reference to one quantity of each item as to each property.” (Bolding and capitalization private residential properties constituted each to be a junk yard, regardless of “when it determined that the placement of items listed in RSA 236:112 on four The defendant next argues that the trial court erred as a matter of law p. 7 7

yards are permitted in the General Use district only by special exception. Id. Id. The defendant’s properties are located in the General Use district. Junk Business; St orage of contractor’s equipment; and Bulk storage, warehousing. Yards; Earth, gravel & stone removals; Manufacturin g other than Home § B (2). Within the category of Industrial Uses are five specific uses: Junk P ublic Uses; Business Uses; and Industrial Uses. Id. at contains four general categories of potentially permitted uses: Residential Uses; Land Use Plan Ordinance art. VI §§ A, B(2) (2021). The Land Use Schedule Schedule” of uses permitted in each district. Town of Lincoln, New Hampshire The ord inance establishes seven districts and se ts forth a “Land Use

We disagree. term “junk yards” in the ordinance does encompass the use of his properties. ‘to the selling or reselling of junk.’” Accordingly, the town concludes that the the town asserts, “does not require that a junk yard be devoted, to any extent, webster.com/dictionary/junkyard (last visited Jan. 15, 202 2). That definition, (Quoting Mer r iam Webster, http://www.merriam that defines junk yard as “a yard used to store sometimes r esalable junk.” junk that is ‘resalable.’” In addition, the town points to a dictionary definition court includes the word “usually,” a junk yard “does not always have to keep The town argu es that, because the definition relied upon by the trial

did not encompass the defendant’s use of his properties. court concluded that the term “junk yards,” as used in the zoning ordinance, properties b elong to him and are stored there for his personal use, the trial to the selling or reselling of junk.” Because the items stored on the defendant’s resalable junk” means that the yard “must be devoted, at least to some extent, New International Dictionary 122 p. 7 7. The court determined that “usually defined it a s “a yard used to keep usu[ally] resalable junk.” Webst er’s Third T he court looked to the dictionary meaning of the term junk yard and

the zoning ordinance, encompasses the defendant’s use of his properties. argument on appeal to be limited to whether the term “junk yard s,” as used in definition of junk yard in RSA 236:112. Thus, we understand the town’s defines the term “Junk Yards,” nor inc orporates by reference the statutory C ontrary to th e town’s position, the trial court found that the ordinance neither discerning the meaning of “Junk Yards” as used in the zoning ordinance. that was not “competent evidence of the enacting body’s intent” for purposes of the ordinance as the term is defined in RSA 236:112,” the trial court concluded t own introduced evidence that it “presently interprets the term ‘Junk Yard’ in The town, however, misconstrues the trial cour t’s order. Although the

lots,” there is no requirement “that a junk yard actually sell anything.” of determining whether a junk yard vio lation was present on [the defendant’s] Town and accepted by the trial court as the controlling definition for purposes RSA 236:112, which was “the statutory definition that was relied upon by the p. 8 8

defendant’s use of h is properties might be fairly described as an “industrial Use P lan Ordinance art. VI §§ A, B(2) (2021). Re gardless of whether the then, only by special exception. See Town of Lincoln, New Hampshire Land that the ordinance allows junk yards only in the General Use district, and, characterization of a junk yard as an industrial use, fails to take into account As an initial matter, the court’s analysis, w hich turns on the

violation of the town’s zoning ordinance. I believe that this analysis fa lls short. the meaning of the ordinance, the defendant is not operating a junk yard in properties for his personal use does not constitute an “industrial use” within yards’ as an industrial use,” and the defendant’s storing of junk on his The court concludes that, because the “zoning ordinance regulates ‘junk

Accordingly, I r espectfully dissent from that portion of the court’s opinion. junk for personal use does not violate the town’s zoning ordinance. defendant’s failure to secure a special exception, the de fendant’s storage of I disagree, however, with the court’s conclusion that, notwithstanding the defendant’s use of his properties violates that statute. See R SA 236:111 -:129. court’s construction of the state junk yard statute and the conclusion that the BASSETT, J., concurring in part and dissenting in part. I agree with the

concurred in part and dissented in part. HICKS, HANTZ MARCONI, and DONOVAN, JJ., concurred; BASSETT, J.,

into the State’s statutory scheme regulating local excavations). that the mandatory fee provision under RSA 676: 17, II was not incorporated see also Bedard v. Town of Alexandria, 159 N.H. 740, 746 (2010) (explaining not authorize an award of costs and attorney’s fees. See RSA 236:111 -:129; in its action to enforce the State junk yard statute, t hat statutory scheme does there are valid alternative grounds to support it”). Although the town prevailed (2015) (noting that “[t]his court will sustain the decision of the trial court if under that statute. See Town of Londonderry v. Mesiti Dev., 16 p. 8 8 N.H. 377, 385 ruling that the town was not entitled to recover its costs and attorney’s fees of costs and fees under RSA 676:17, II. Therefore, we affirm the trial court’s The town makes no other argument in support of its claim for an award

not encompass the defendant’s use of h is properties. Stiff Partners, 172 N.H. at 616, we conclu de that the term “junk y ards” does “industrial use.” Accordingly, viewing the ordinance as a whole, see Working storage of one’s own personal belongings on one’s own property is not an that the zoning ordinance regulates “junk yards” as an “industrial use.” T he multiple reasonable interpretations, it is plain from its context and structure although, when construed in isolation, the term “junk yard” may be subject to Although the ordinance does not specifically define “junk ya rds,” and p. 9 9

ordinance is an example of the common variety of zoning ordinance that Plan Ordinance art. VI § B(1). This language “makes it clear that the . . . Exception shall be prohibited.” Town of Lincoln, New Hampshire Land Use “[a]ny use not listed as permitt ed or which is not allowable by Special The town’s zoning ordinance is a permissive ordinance, as it provides that yard in violation of the zoning ordinance — does not, as a matter of law, follow. conclusion reached by the court — that the defendant is not operating a junk on his property does not come within the definition of “junk yard,” t he Moreover, even if, as the court concludes, the defendant’s storage of junk

meaning of the zoning ordinance. ATVs, an old boat, and two semi - trailers,” constitute a junk yard within the [do] not appear to be in working order,. . . old snowmobiles, lawnmowers, and debris, steel drums, [and] plastic barrels,” as well as “several automobiles that p arts, tires, wheels, cables and wiring, woodstoves, snowplows, construction of . . . old or used scrap metal including numerous machine or automotive m eaning of the term, the defendant’s properties, which contain “large amounts (last visited Jan. 15, 2022). Accordingly, I conclude that, applying the plain https://www.oed.com/view/Entry/71 p. 9 926303?redir ectedFrom=junkyard#eid refuse.” The Oxford English Dictionary, destroyed” or “[a] place which is untidy, dirty, or cluttered with objects or esp [ecially] scrap metal, are collected before being reused, recycled, or yard is “[a]n area or enclosure where old or dis carded items and materials, consistent with the definition in The Oxford English Dictionary that a junk regardless of whether the junk is actual ly sold. This interpretation is any “yard used to keep” such junk falls within the definition of junk yard, yard used to keep junk that is ordinarily — but not always — resold. Thus, means “fit for sale.” Id. at 1929. Under its plain meaning, a junk yard is a Dictionary 2524 (unabridged ed. 2002) (capitalization omitted). “Resalable” yard. “Usually” means “ordinarily.” Webster’s Third New International “usually resalable” simply describes the condition of the “junk” kept in a junk require a junk yard to be involved in the selling of junk. Rather, the phrase I agree with the town that the phrase “usually resalable junk” does not

and bolding omitted.) rather, may be “a yard used to store sometimes resalable junk.” (Quotation that a junk yard does not always have to keep junk that is re salable,” but, The town, however, assert s that “[i]nclusion of the word ‘usually’ demonstrates the trial court concluded that his use was not encompassed by the ordinance. at least to some extent, sell junk. Because the defendant was not selling junk, yard, defined as “a yard used to keep usu[ally] resalable junk,” the yard must, The trial court determined that under the dictionary definition of junk

it does. meaning of the term “junk yard” as used in the zoning ordinance. I believe that use,” the determinative question is whether his use falls within the plain p. 10 10

to an award of its costs and attorney’s fees. the contrary and remand for the court to c onsider whether the town is entitled zoning ordinance. Accordingly, I would reverse the trial court’s conclusion to district, I conclude that the defendant’s use of his properties violates the town’s have a special excepti on allowing a junk yard in the General Use zoning permitted use under the zoning ordinance, and that the defendant does not Given that the defendant’s “non - industrial” storage of junk is not a

personal use, not being permitted by the ordinance, i s prohibited. junk for personal use. Accordingly, the defendant’s storage of junk for permitted use”). T he zoning ordinance does not expressly permit storing of expressly permitted as primary uses or can be found to be accessory to a “permissive” ordinance, uses of land are generally prohibited “unless they are Land Use Planning and Zoning § 9.02, at 174 (20 p. 10 10) (explaining that under a 126 N.H. 372, 375 (1985); see 15 Peter Loughlin, New Hampshire Practice: prohibits uses for which it does not provide permission.” Treisman v. Kamen,