Derry Sand & Gravel, Inc. v. Town of Londonderry, 80-194
| Decision Date | 12 June 1981 |
| Docket Number | No. 80-194,80-194 |
| Citation | 431 A.2d 139,121 N.H. 501 |
| Parties | DERRY SAND & GRAVEL, INC., et al. v. TOWN OF LONDONDERRY. |
| Court | New Hampshire Supreme Court |
Sheehan, Phinney, Bass & Green, Manchester (James E. Higgins, Manchester, on the brief and orally), for plaintiffs.
Richard F. Therrien, Manchester, by brief and orally, for defendant.
The plaintiffs, Derry Sand & Gravel, Inc. and Grassy Knoll Associates, appeal from an order of the superior court requiring Grassy Knoll Associates to comply with the Londonderry dump ordinance before operating a private disposal site on a 200-acre tract of land in that town. We affirm the order of the trial court.
the 200-acre tract of land in question was originally a farm owned by the Thomopoulos family. From 1964 to 1979, George Thomopoulos operated a public dump on a five-acre section of the tract in accordance with an agreement with the town. Thomopoulos later formed Derry Sand and Gravel, Inc., with himself as sole stockholder and the land as the principal asset of the corporation. In 1978, Peter Johnson of Grassy Knoll Associates negotiated with Thomopoulos to purchase all of the stock of Derry Sand & Gravel, Inc. Grassy Knoll Associates planned to establish a private disposal site on the land.
RSA 147:30-b prohibits the operation of a private disposal site unless the operator first obtains the approval of the town selectmen and the State under RSA 147:30-d IV. Seeking to obtain the required town approval, Johnson attended a meeting of the Londonderry Board of Selectmen on March 9, 1979. In executive session, Johnson explained his plans to the board and presented them with a draft letter granting approval under RSA 147:30-d IV. After a cursory examination and brief discussion of the terms of the letter, the selectmen approved it and sent it out over their signatures on March 13, 1979. Although the letter approves the entire 200-acre tract as a private disposal site, the minutes of the executive session indicate that the parties actually agreed that operation of the facility would be limited to its current use as a public dump on five acres of the tract.
In June 1979, Grassy Knoll Associates purchased the stock of Derry Sand & Gravel, Inc. and began to proceed with its plans to open a private disposal site, but a dispute arose with the town over the operation of the facility. The town asserted that although Grassy Knoll Associates had received an RSA 147:30-d letter it had not complied with the town's dump ordinance and therefore would not be allowed to operate the private disposal site until it had done so. Additionally, the town informed Grassy Knoll Associates that it considered the selectmen's March 13, 1979 letter giving approval under RSA 147:30-d to operate a private disposal site to be invalid.
Derry Sand & Gravel, Inc. and Grassy Knoll Associates brought a petition to enjoin the town from interfering with the operation of a private disposal site and a petition for a declaratory judgment on the validity of the selectmen's March 13, 1979 letter of approval. After a trial, the Master (Charles T. Gallagher, Esq.) ruled that the selectmen's March 13, 1979 letter of approval under RSA 147:30-d was valid and binding on the town, but that the plaintiffs had to comply with the town's dump ordinance before operating the private disposal site. Accordingly, he recommended a decree dismissing the petition for injunction. The Superior Court (Temple, J.) entered a decree in accordance with the master's recommendation. The plaintiffs appeal from the determination that they are required to comply with the town dump ordinance. The town did not appeal from the ruling that the RSA 147:30-d letter was valid.
The plaintiffs first argue that RSA 147:30-a to -d preempts the Londonderry dump ordinance. A State statute preempts a local ordinance when the legislature clearly manifests an intent to do so or when the statute and ordinance conflict. Public Serv. Co. v. Town of Hampton, 120 N.H. 68, 71, 411 A.2d 164, 166 (1980); Lavallee v. Britt, 118 N.H. 131, 134, 383 A.2d 709, 711- 12 (1978); State v. Hutchins, 117 N.H. 924, 926, 380 A.2d 257, 258 (1977); see Region 10 Client Management, Inc. v. Town of Hampstead, 120 N.H. 885, 887-888, 424 A.2d 207, 209 (1980). RSA 147:30-d provides:
(Emphasis added.) By requiring local approval of a disposal site as well as State approval, the legislature has not manifested an intent to preempt local regulation but rather has expressly provided for it. If the selectmen do not approve an application for a site, then it will not be built in their town. Although the statute does not specify a mechanism by which selectmen may determine whether a facility will be a nuisance or "injurious to the public interest," town by-laws such as the Londonderry dump ordinance would normally establish such a procedure. Thus, local regulations play an important part in the statutory scheme and do not conflict with the statute. Londonderry's dump ordinance, if not otherwise unreasonable, may operate consistently with RSA 147:30-d IV. See Lavallee v. Britt, supra.
The next issue the plaintiffs raise concerns the reasonableness of the dump ordinance itself. They argue that the ordinance is unconstitutionally vague because it fails to provide standards governing the selectmen's decision to issue a license to operate a private dump. Londonderry's dump ordinance provides:
"A. PURPOSE.
To provide for orderly, sanitary and reasonable provisions for the disposal of garbage and waste in the Town of Londonderry, New Hampshire.
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