Bennett v. Town of Hampstead
| Decision Date | 11 July 2008 |
| Docket Number | No. 2007-662.,2007-662. |
| Parties | Christopher BENNETT and another. v. TOWN OF HAMPSTEAD. Town of Hampstead v. CHRISTOPHER BENNETT and another. |
| Court | New Hampshire Supreme Court |
Thea S. Valvanis on the brief, and Mr. Kalman orally), for the petitioners.
Soule, Leslie, Kidder, Sayward & Loughman, P.L.L.C., of Salem (Diane M. Gorrow on the brief and orally), for the respondent.
In these consolidated cases, the petitioners, Christopher Bennett, Alycia Bennett, and Bennett Landscaping, Inc. (collectively Bennett), appeal two rulings by the Trial Court (McHugh, J.) concerning attorney's fees. We hold that RSA 676:17, II (Supp. 2007) required the trial court to award attorney's fees to the respondent, Town of Hampstead (town), because the town prevailed in its action for injunctive relief against the petitioners. We further hold that, because the trial court did not find that Bennett's due process rights were violated, Bennett is not entitled to attorney's fees for its declaratory judgment action against the town. Accordingly, we affirm.
The trial court found the following relevant facts. Since March 1998, Christopher and Alycia Bennett have owned and resided at property located in a residential zone of the town that prohibits commercial uses. In June 1998, the town's zoning board of adjustment (ZBA) granted Bennett a special exception "to permit a home occupation — use of premises in connection with landscaping and property maintenance business." When applying for the special exception, Bennett informed "the ZBA that fertilizer and other materials would be stored in the garage, that there would be one full-time employee plus two college students working during the summer, that the proposed business would not be injurious or obnoxious, and that the lot was screened from view."
In 2005, an abutter complained to the town that there was "noise, smoke and dust from heavy machinery, [and a] smell of manure and composting materials," coming from Bennett's property. The abutter also complained that the property had "unsightly stockpiles of loam, compost and other materials ... which w[ere] visible from the abutter's property." In response, the town's chief building official, Kristopher Emerson, viewed the property several times and determined that there appeared to be a "loam/composting operation — commercial activity on site." He wrote a letter to that effect to Bennett, but the letter was never picked up from the post office.
In January 2006, Emerson asked the town's code enforcement officer, Colleen King, to contact the abutter, who confirmed that the problems were continuing. In February and March, King conducted home occupation inspections of Bennett's property, and confirmed the abutter's complaints. Specifically, she observed: (1) "that trees had been cleared in the rear of the Bennett property, eliminating visual screening of the operations"; (2) "[l]arge piles of mulch, loam and compost were stored outside, as well as pallets with pavers and bricks, concrete partitions filled with different types of stone, and other landscaping materials"; and (3) that there was "a large dump truck, a large front-end loader, a large tractor, a bulldozer, a Bobcat, a skid steer, three large trailers to transport tractors, two pickup trucks, and a backhoe all parked outside" in the yard. She also learned that Bennett had two to three full-time employees, three to four part-time employees, and six to eight part-time summer employees. Based upon these observations, King determined that Bennett had exceeded the terms of the special exception.
On March 27, 2006, King sent a certified letter to Bennett expressing her conclusions. Because that letter was not picked up, King, with a police escort, hand-delivered the same letter to Bennett on April 10, 2006. The letter stated, in pertinent part:
On February 10, 2006, I conducted a periodic Home Occupation Inspection for your property ... as required by the Hampstead Zoning Ordinance IV-6:9. During that inspection, there was clear evidence that Bennett Landscaping Inc. has expanded and has grown beyond the originally approved conditions and scope of your Home Occupation Permit. In addition, there have been complaints regarding the noise, equipment, offensive odors and change to the residential character of the neighborhood.
You are hereby notified that your Home Occupation Permit is being revoked and that you must cease and desist all operations of Bennett Landscaping ... effective May 5, 2006. Permit holders whose permits are revoked may make application to the [ZBA] for a new permit on changed circumstances of the business. The application deadline for the May [ZBA] meeting is Thursday, April 13, 2006.
After Mr. Bennett met with King later that day, King wrote a letter to Bennett dated April 12, which stated: By letter dated April 21, Bennett advised King that it needed time to review its options and would not agree to remove the business from the property.
On May 1, 2006, the town's attorney sent Bennett a letter informing it that "to remedy the zoning violations, [Bennett needed to] within five business days of [its] receipt of th[e] letter come up with an agreement with the Town to remedy the violation." The letter also advised Bennett:
[U]nder RSA 676:17, should the Town have to initiate a court action against you to remedy the violation, you will be subject to a civil penalty of up to $275 for the first offense and $550 for subsequent offenses for each day that you remain in violation after the date on which you first received written notice from the Town. That written notice ... was given to you on April 10, 2006. Besides paying a civil penalty, you will also have to pay for the Town's attorney['s] fees and costs.... [I]f you do not remedy the situation by coming up with a written agreement with the Town within five business days, the Town will be forced to go to court and will seek civil penalties and recovery of its attorney['s] fees and costs.
On May 3, Bennett filed a petition for declaratory judgment, requesting that the trial court declare: (1) certain provisions of the town's zoning ordinance unconstitutional both facially and as applied because they violate the procedural due process provisions of both the State and Federal Constitutions; (2) that its use of the premises as a landscaping business is protected as a preexisting use under the zoning ordinance; and (3) that the cease and desist order by King was null and void. The town responded by filing a petition for preliminary and permanent injunctions against Bennett. Asserting that Bennett had violated several provisions of the town's zoning ordinance and had expanded the scope of its special exception, the town requested that the court, among other things: (1) permanently restrain and enjoin Bennett from operating a commercial business or conducting commercial activities at its property; (2) order Bennett to remove all commercial equipment vehicles, landscaping supplies, compost, loam and other materials from the property; and (3) impose a penalty pursuant to RSA 676:17, I, for each day that Bennett continued to operate a commercial business at the property. The cases were subsequently consolidated.
The trial court granted the town's request for a preliminary injunction, and enjoined Bennett from operating a construction business on the property, causing noise by the screening of loam, and engaging in the commercial composting of any materials on the property. The court further directed Bennett to remove any piles of commercial compost stored on the property, and cease operation of noisy and heavy equipment at the back of the property except during business hours. The trial court did not, however, prevent Bennett from operating its landscaping business.
After a two-day trial, at which the trial court viewed Bennett's property and the abutting properties, and heard the testimony of nine witnesses, the trial court ruled that Bennett's use of the property was not protected as a preexisting nonconforming use, and that Bennett was not using the property in compliance with the special exception for a landscaping business. The court also explicitly rejected Bennett's assertions that: (1) the town's zoning ordinance was unconstitutional; (2) its due process rights were violated; (3) it had no complete and adequate remedy at law; and (4) it was entitled to attorney's fees because it was either "forced to litigate against an opponent whose position [wa]s patently unreasonable," or "forced to seek judicial assistance to secure a clearly defined right" and it established "bad faith on the part of the Town."
The trial court made detailed findings of fact and rulings of law. The court also issued a written order that "in summary fashion set forth the reasons for its ultimate decision." In that order, the trial court noted:
[A]ny constitutional violations that Chris Bennett alleged were committed by the Town of Hampstead fall into the category of "no harm no foul." While the Town did order him to cease his landscaping business in April of 2006, in fact he never had to do so because a Court Order permitting him to conduct that business issued in July of 2006. Mr. Bennett's counsel at the time of trial conceded that the only damages that he had as a result of his constitutional claims was (sic) attorney['s] fees. In light of its findings the Court will not order the Town of Hampstead to be responsible for Chris Bennett's attorney['s] fees in this case....
[The letter from King to Bennett] states that he would lose [the home occupation] permit by a date certain.
...
To continue reading
Request your trial