City of Rochester v. Corpening

• Decision Date: 26 May 2006
• Docket Number: No. 2005–389.,2005–389.
• Citation: 153 N.H. 571,907 A.2d 383
• Court: New Hampshire Supreme Court
• Parties: CITY OF ROCHESTER v. James CORPENING and another.

153 N.H. 571

907 A.2d 383

CITY OF ROCHESTER

v.James CORPENING and another.

No. 2005–389.

Supreme Court of New Hampshire.

Argued: March 8, 2006.

Opinion Issued: May 26, 2006.

Wensley, Jones & Azarian, P.L.L.C., of Rochester (Danford J. Wensley and Dianna J. Parker, on the brief, and Mr. Wensley orally), for the petitioner.

Hanlon & Zubkus, of Rochester (Mark D. Hanlon, on the brief and orally), for respondent James Corpening.

Backus, Meyer, Solomon & Branch, L.L.P., of Manchester (B.J. Branch, on the brief and orally), for respondent George Blaisdell.

GALWAY, J.

The petitioner, City of Rochester (city), appeals an order of the Superior Court (Fauver, J.) denying its request for civil penalties pursuant to RSA 676:17, I(b) (1996) (amended 2005), and granting respondent George Blaisdell's motion to reconsider the court's remedy regarding certain motor vehicle junkyard violations. We affirm.

The record supports the following facts. Respondent James Corpening owns two adjoining properties located at 788 and 794 Portland Street in Rochester. Blaisdell resides at 794 Portland Street and Corpening contends that Blaisdell is supposed to maintain both properties.

By letter dated June 5, 2003, the city notified the respondents that the condition of the properties was in violation of: (1) various provisions of the 2000 International Property Maintenance Code, which mandates the maintenance of clean, sanitary and safe premises and requires the proper storage and removal of rubbish; (2) section 42.14(E)(3) of the city's General Ordinances relative to the maintenance of motor vehicle junkyards (General Ordinances of the City of Rochester § 42.14(E)(3)); (3) RSA 236:114 (1993) governing State licensing requirements for motor vehicle junkyards; and (4) section 42.14(c)(6) of the city's General Ordinances relative to the operation of flower and plant nurseries and greenhouses (General Ordinances of the City of Rochester § 42.14(c)(6)). When the use of the properties did not change, the city sought injunctive relief, civil penalties and attorney's fees pursuant to RSA 676:17.

In January 2005, after a two-day bench trial, the trial court issued an order that summarized the condition of the properties as follows:

While the court has endeavored to describe the condition of the properties, any description falls short, with the pictures themselves speaking volumes about the condition. Simply put, the grounds surrounding the houses are deplorable and, in addition to being unsightly, pose an obvious health and safety risk in a residential neighborhood.

Among other things, the trial court found that the respondents were operating an unlicensed motor vehicle junkyard in violation of section 42.14(E)(3) of the city ordinances and RSA 236:114. Specifically, the trial court found that "[a] boat, a camping trailer, a blue truck, a backhoe, and a white car are located on the properties." After noting that there were at least two unregistered motor vehicles on the property, the trial court found that both the backhoe tractor and the blue pickup truck were no longer intended for use and ordered the respondents to "bring the property into conformance with these regulations" by removing the backhoe, the blue pickup truck, and "all but one of the other unregistered vehicles that may be on the property." The trial court denied the city's request to impose civil penalties pursuant to RSA 676:17, reasoning that the imposition of fines would make it financially difficult for the respondents to bring the properties into conformity with the terms of its order.

The city moved for reconsideration, requesting that the trial court, among other things, reverse its decision not to impose statutory civil penalties against the respondents. The city asserted that, pursuant to RSA 676:17, I, the penalties were mandatory given the trial court's rulings regarding the respondents' violations of various city ordinances and State statutes. In the alternative, the city asked the trial court to impose the statutory civil penalties, but suspend their imposition for sixty days, thereby giving the respondents time to bring the properties into compliance with the trial court's order.

In his motion to reconsider, Blaisdell argued, in pertinent part, that by registering all motor vehicles on the property, any violations regarding the motor vehicle junkyard would be cured. He requested the court to modify its order accordingly.

The trial court ruled that it had properly declined to impose civil penalties under RSA 676:17. After reviewing both the city ordinance and applicable State statute, the trial court also ruled, "To be deemed a motor vehicle junkyard, the property must contain two or more unregistered motor vehicles which are not intended for or in condition for legal use on the public highways." Thus, the trial court found that Blaisdell "can either remove or register the offending vehicles to bring his property into compliance with the motor vehicle junkyard regulations."

On appeal, the city asserts the trial court erred by: (1) failing to impose statutory civil penalties it contends are mandatory under RSA 676:17, I(b); and (2) ruling that Blaisdell could remedy the State and local motor vehicle junkyard violations by registering the unregistered vehicles that were located on the properties.

We defer to the trial court's findings of fact if they are supported by the evidence and are not erroneous as a matter of law. Franklin v. Callum, 146 N.H. 779, 781, 782 A.2d 884 (2001). We review the trial court's statutory interpretation de novo. Foote v. Manchester Sch. Dist., 152 N.H. 599, 601, 883 A.2d 283 (2005). We are the final arbiter of legislative intent as expressed in the words of the statute considered as a whole. Id. We first examine the language of the statute and ascribe the plain and ordinary meanings to the words used. Carignan v. N.H. Int'l Speedway, 151 N.H. 409, 419, 858 A.2d 536 (2004). We interpret statutes in the context of the overall statutory scheme and not in isolation. Id. Moreover, the traditional rules of statutory construction generally govern our review of ordinances. See Harrington v. Town of Warner, 152 N.H. 74, 79, 872 A.2d 990 (2005).

I. Civil Penalties

As a preliminary matter, we note that throughout the litigation at the trial court level and on appeal, the basis of the city's claim for the imposition of civil penalties has been RSA 676:17, I, and not the penalty provisions in the city's general ordinances. Although the city references sections 42.25(b) and 40.12 of the city's general ordinances in its brief, it did not rely upon these provisions in the trial court and did not develop its argument regarding them either in its brief or at oral argument. Therefore, we decline to address them. See Franklin v. Town of Newport, 151 N.H. 508, 509, 861 A.2d 777 (2004).

The version of RSA 676:17, I, relevant to this case provided in pertinent part:

I. Any person who violates any of the provisions of this title, or any local ordinance, code, or regulation adopted under this title, or any provision or specification of any application, plat, or plan approved by, or any requirement or condition of a permit or decision issued by, any local administrator or land use board acting under the authority of this title:

....

(b) Shall be subject to a civil penalty not to exceed $100 for each day that such violation is found to continue after the conviction date or after the date on which the violator receives written notice from the municipality that he is in violation, whichever is earlier.

RSA 676:17, I(b) (emphasis added). The city contends that the use of the word "shall" is a command, requiring mandatory enforcement. While the city concedes that the trial court has discretionary authority to tailor the imposition of the statutory penalty on a case-by-case basis, it argues that the trial court must impose some penalty.

"The intention of the Legislature as to the mandatory or directory nature of a particular statutory provision is determined primarily from the language thereof." Appeal of Rowan, 142 N.H. 67, 71, 694 A.2d 1002 (1997) (quotation and citation omitted). The general rule of statutory construction is that "the word ‘may’ makes enforcement of a statute permissive and that the word ‘shall’ requires mandatory enforcement." Town of Nottingham v. Harvey, 120 N.H. 889, 895, 424 A.2d 1125 (1980). Nevertheless, in the instant case, the word "shall" is modified by the phrase "be subject to," which affects the overall meaning of the clause. See Dancart Corp. v. St. Albans Rubber Co., 124 N.H. 598, 602, 474 A.2d 1020 (1984) (interpreting "shall be subject to" in the context of a contractual forum selection clause); Strafford Technology v. Camcar Div. of Textron, 147 N.H. 174, 176, 784 A.2d 1198 (2001) (interpreting "shall be determined by" in the context of a contractual forum selection clause).

In Dancart, the parties to a contract action between a New Hampshire corporation and an English corporation disputed the meaning of a forum selection clause that stated: "[The contract] shall be subject to the jurisdiction of the English Courts." Dancart, 124 N.H. at 600, 474 A.2d 1020 (emphasis added). In that case, we declined to interpret this provision as a mandate of exclusive jurisdiction in the English Courts. Id. at 602, 474 A.2d 1020. Instead, we concluded that the clause "shall be subject to" was a grant of authority conferring non-exclusive jurisdiction in the English Courts. Id. Thus, we interpreted the phrase "be subject to" as modifying the "mandatory character" of the word "shall." Id. Similarly, in the context of the instant case, we interpret the clause "shall be subject to" as granting the trial court the authority to impose the statutory penalties set forth in RSA 676:17, I(b) rather than the obligation to impose such penalties. Thus, RSA 676:17, I(b) grants the trial court the authority to determine whether or not to impose a penalty and the amount of the...