N. Country Envtl. Servs., Inc. v. Town of Bethlehem
| Decision Date | 01 May 2001 |
| Docket Number | Nos. 99–234,99–595.,s. 99–234 |
| Citation | 772 A.2d 330,146 N.H. 348 |
| Court | New Hampshire Supreme Court |
| Parties | NORTH COUNTRY ENVIRONMENTAL SERVICES, INC. v. TOWN OF BETHLEHEM. Town of Bethlehem v. North Country Environmental Services, Inc. |
Brown, Olson & Wilson, P.C., Concord (Bryan K. Gould, on the brief, and Mr. Gould orally), for North Country Environmental Services, Inc.
Waystack & King, Colebrook (Philip R. Waystack, Jr. and Jonathan S. Frizzell, on the brief, and Mr. Waystack orally), for Town of Bethlehem.
Hughes, Smith & Yazinski, L.L.P., Claremont (John J. Yazinski, on the brief), for Aware, Inc., as amicus curiae.
Boutin & Associates, P.L.L.C., Londonderry (Edmund J. Boutin, on the brief), for Environmental Action of Northern New Hampshire, Inc., as amicus curiae.
This dispute arises out of the private landfill operations of North Country Environmental Services, Inc. (NCES) and its predecessors-in-interest. The parties both appeal rulings by the Superior Court (Fitzgerald , J.) upon NCES' petition for declaratory relief and the petition of the Town of Bethlehem (town) for injunctive relief. We affirm.
In 1976, Harold Brown, the original owner of an eighty-seven acre parcel located in Bethlehem, received a variance from the Town of Bethlehem Zoning Board of Adjustment (ZBA) to operate a landfill. Brown obtained State approval to operate the landfill within a nearly four acre footprint on his property. In 1977, Brown obtained State approval to expand the original footprint by approximately one acre; he did not seek town approval for this expansion.
In 1983, Brown obtained permission from the town planning board to create a ten acre subdivision on the property for landfill use, and then sold this lot to Sanco, Inc. (Sanco). In 1985, Brown obtained permission from the planning board to create a forty-one acre subdivision on the property for landfill use, and then conveyed this lot to Sanco as well.
Sanco applied for a special exception to expand the existing landfill onto the forty-one acre parcel and to construct a solid waste transfer station on another adjacent lot. After initially denying the special exception, the ZBA granted it in November 1985, subject to "limiting terms and safeguards set forth in an agreement to be negotiated between Sanco, Inc. and the Board of Selectmen." In January 1986, the ZBA imposed twenty-three conditions that had to be satisfied before Sanco could operate the expanded area as a landfill. One condition required Sanco to give the town a "tipping fee" discount on the town's own solid waste. Another required Sanco to pay the town a surcharge for all waste brought to the landfill from outside the town.
Over the years, the town, NCES, its predecessors-in-interest, abutters and public interest groups disputed the landfill's continued operation and expansion. In March 1987, at a town meeting, the town amended its zoning ordinance to prohibit the existence of any privately owned solid waste disposal facility in any town district. At a 1992 town meeting, the town again amended its zoning ordinance to prevent the location of any "solid waste disposal facility, site or expansion of any existing landfills ... in any district except a facility operated by the Town."
In March 1987, Sanco requested permission from the State to expand the landfill in four phases, a design requiring approximately eighteen acres (Stage I). The State approved Sanco's Stage I application in June 1987, and shortly thereafter, Sanco began Stage I operations.
In June 1988, Sanco requested permission from the State to expand the landfill in two phases comprising approximately seven acres (Stage II). The State granted the Stage II application in April 1989. Sanco thereafter conveyed the land to NCES. NCES began phase one of the Stage II expansion in 1996. NCES received State approval to begin phase two of the Stage II expansion in September 1998. The current dispute stems from NCES' proposed September 1998 expansion.
The town petitioned to enjoin the September 1998 expansion. NCES petitioned for declarations that: (1) the 1987 and 1992 zoning amendments are preempted by RSA chapter 149–M; (2) the 1987 and 1992 zoning amendments are arbitrary and discriminatory and thus void; (3) the 1987 and 1992 zoning amendments are unconstitutional; (4) there is no size limitation on the uses granted by the 1976 variance or the 1985 special exception, and thus NCES "has all local approvals necessary to conduct landfilling operations on the [entire] 87–Acre Parcel"; (5) the 1987 and 1992 zoning amendments do not apply to NCES because use of the ten acre and forty-one acre lots as landfill was permitted by the 1976 variance and 1985 special exception; and (6) the tipping fee discount and surcharge for out-of-town waste required by the 1986 conditions to the special exception are unlawful. The court bifurcated NCES' claim regarding the tipping fee discount and surcharge from the remainder of the parties' claims.
Following a hearing on the merits, the trial court found that neither the 1987 nor the 1992 zoning amendment conflicted with RSA chapter 149–M, and thus preemption did not apply. The court declined to rule upon the validity of the amendments, however, because it concluded that they did not apply to NCES' operations and thus the controversy was not justiciable. The court ruled that, pursuant to the 1976 variance and the 1985 special exception, NCES could expand its landfill uses through the ten acre and forty-one acre parcels of the original eighty-seven acre tract. The court found that the 1986 special exception did not expressly limit the landfill to any area less than the full extent of the forty-one acre lot conveyed to Sanco in 1985. The court ruled, however, that NCES was estopped by Sanco's conduct from relying upon the 1976 variance to claim a right to develop the entire eighty-seven acre parcel. The court found that Sanco had waived any right to claim the 1976 variance granted landfill rights to the entire parcel and that NCES was bound by Sanco's conduct as its successor-in-interest. The town, the court ruled, was also estopped from claiming any right to enjoin NCES from operating the landfill on the ground that Brown's 1977 expansion of it was illegal. Finally, the court declined to award attorney's fees and costs to NCES because it found no evidence of bad faith.
In its motion for clarification/reconsideration, the town requested the court to confirm that the 1976 variance and the 1985 special exception "contain [areal] limits relative to the landfill operations of NCES." The court concluded that neither the 1976 variance nor the 1985 special exception "contain[ ] any express area limitation as to the permitted landfill uses on either the 10–acre or 41–acre lots." The court further clarified that the 1976 variance applied only to the ten acre lot and that NCES was precluded from claiming any present right under it to develop landfill uses throughout the entire eighty-seven acre tract.
The town also asked the court to reconsider its application of municipal estoppel. The court based its original municipal estoppel ruling upon the town's stipulated dismissal of a prior lawsuit. In response to the town's motion for reconsideration, the court confirmed that the town's stipulation and NCES' subsequent reliance upon it precluded the town from asserting any right to enjoin NCES' landfill operations based upon the 1977 expansion.
Thereafter, the town moved to dismiss NCES' claim regarding the tipping fee discount and surcharge on the ground that the court lacked subject matter jurisdiction, which the court denied. The court granted NCES' motion for partial summary judgment, however, finding that the tipping fee discount and surcharge for out-of-town waste were unlawful because they bore no rational nexus to "actual impacts upon either Town services or infrastructure." The town's appeal and NCES' cross-appeal followed.
NCES challenges the trial court's determination that RSA chapter 149–M does not preempt the 1987 and 1992 zoning amendments. NCES also asks this court to find the amendments invalid for a host of other reasons.
As a threshold matter, we note that the trial court found that the 1987 and 1992 zoning amendments did not apply to NCES' operations on the ten acre and forty-one acre lots because the uses established thereon were pre-existing and permitted at the time of the 1987 amendment. Neither party has appealed this ruling.
Although the town neither included this issue in its notice of appeal nor raised it before the trial court, it argues in its brief that NCES' construction activities violate the amendments and constitute an impermissible expansion of a non-conforming use. This argument has not been preserved for our review and we do not address it. See Bursey v. Bursey , 145 N.H. 283, ––––, 761 A.2d 491, 494 (2000). Even if it had been preserved for our review, we could not address the argument because it raises issues of fact that were not decided below. See Hurley v. Town of Hollis , 143 N.H. 567, 572, 729 A.2d 998 (1999) ().
We therefore affirm the trial court's determination that neither the 1987 nor the 1992 amendments apply to NCES' operations on the ten acre and forty-one acre lots because they were pre-existing, permitted uses at the time of the 1987 amendment. See RSA 674:19 (1996). Accordingly, we need not decide whether the amendments are preempted by RSA chapter 149 M or otherwise are invalid.
As a result of our ruling regarding the 1987 and 1992 amendments, NCES' argument concerning a "builder's remedy" lacks merit and warrants no further discussion. See Vogel v. Vogel , 137 N.H. 321, 322, 627 A.2d 595 (1993).
The town argues that the trial court erroneously...
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