N. Country Envtl. Servs., Inc. v. Town of Bethlehem

Decision Date01 March 2004
Docket NumberNo. 2003–337.,2003–337.
Citation150 N.H. 606,843 A.2d 949
CourtNew Hampshire Supreme Court

Brown, Olson & Wilson, P.C., of Concord (Bryan K. Gould & a. on the brief), and Sheehan Phinney Bass + Green, P.A., of Manchester (John E. Peltonen on the brief and orally) for the plaintiff.

Boutin & Associates, P.L.L.C., of Londonderry (Brenda E. Keith on the brief, and Edmund J. Boutin orally), for the defendants.


This case concerns on-going litigation between the plaintiff, North Country Environmental Services, Inc. (NCES), and the defendants, the Town of Bethlehem and its planning and zoning boards (town). In 2001, we issued an opinion regarding prior litigation between NCES and the town. See N. Country Envtl. Servs. v. Town of Bethlehem, 146 N.H. 348, 772 A.2d 330 (2001) ( NCES I ). Like NCES I , the instant dispute arises out of NCES' landfill operations. The parties appeal the order of the Superior Court (Burling , J.) upon the merits of NCES' petition for declaratory relief and the town's counterclaims and counter-petition for declaratory relief. We affirm in part, reverse in part, vacate in part, and remand.

I. Background

Since 1976, a private landfill has existed on an eighty-seven acre parcel in Bethlehem that NCES now owns. See id. at 350–51, 772 A.2d 330. The first landfill comprised four acres pursuant to a variance the town granted the original landowner in 1976. See id. at 350, 772 A.2d 330. In 1983, the landfill expanded to ten acres. See id. In 1985, the town granted a special exception to expand the landfill to an additional forty-one acres. See id. The town imposed twenty- three conditions upon the special exception. See id. The expansion of the landfill has been a source of litigation since 1986.

NCES and its predecessors-in-interest have sought State permits to expand the landfill operations in stages within the fifty-one acres (the original ten acres and the forty-one acres that were the subject of the special exception). See N.H. Admin. Rules , Env–Wm 102.159. Stage I involved eighteen of the fifty-one acres. See NCES I , 146 N.H. at 351, 772 A.2d 330. The State granted permission for Stage I in 1987. See id. Stage II involved an additional seven acres. See id. The State granted permission for Stage II in 1989. See id. Stage II included two phases. See N.H. Admin. Rules , Env–Wm 102.124.

NCES I concerned the town's efforts to enjoin the second phase of Stage II. See NCES I , 146 N.H. at 351, 772 A.2d 330. The town relied, in part, upon the 1976 variance and the 1985 special exception. Id. at 352, 772 A.2d 330. We affirmed the trial court's ruling that the 1976 variance contained "no limitation on the area NCES' land filling operations could occupy on the ten-acre lot." Id. at 353–54, 772 A.2d 330. We also affirmed the court's determination that "neither the 1985 special exception, nor the 1986 conditions attached thereto, contain[ed] any express limitation on the size of the landfill." Id. at 355, 772 A.2d 330. Thus, we held that NCES had town approval to use fifty-one acres, the entire area encompassed by the 1976 variance and 1985 special exception, for its landfill operations. See id. at 353–55, 772 A.2d 330.

The town also relied upon two amendments to the town's zoning ordinance. See id. at 350–51, 772 A.2d 330. The first amendment, enacted in 1987, prohibits the existence of any private solid waste disposal facility in any town district. See id. at 350, 772 A.2d 330. The second amendment, enacted in 1992, prevents the location of any solid waste disposal facility or the expansion of an existing landfill in any district, unless the town owns the facility. See id.

We affirmed the lower court's determination that the town could not rely upon these amendments to enjoin Stage II, phase two. See id. at 352–53, 772 A.2d 330. Although NCES argued that the State Solid Waste Management Act, RSA chapter 149–M, preempted these amendments, we did not reach this issue. See id. at 353, 772 A.2d 330. Instead, we affirmed the trial court's ruling that neither amendment applied to NCES' operations on the fifty-one acres because the operations "were pre-existing, permitted uses at the time of the 1987 amendment." Id.; see also RSA 674:19 (1996). Because the amendments did not apply to NCES' operations on the fifty-one acres, it was unnecessary for us to decide whether State law preempted them. NCES I , 146 N.H. at 353, 772 A.2d 330.

The current litigation puts the issue of State law preemption under RSA chapter 149–M squarely before the court.

B. Current Litigation

The current dispute primarily relates to actions NCES and the town took while NCES I was pending. During that time:

(1)NCES applied for and received a State permit to begin Stage III of the expansion, which involved additional land within the fifty-one acres. Stage III operations began in December 2000.
(2)NCES entered into a lease with Commonwealth Bethlehem Energy, LLC (CBE) to construct and operate a landfill gas utilization (LGU) facility on the fifty-one acres. See N.H. Admin. Rules , Env–Wm 2502.02(a)(6), 2506.07 (lined landfills must have decomposition gas control system). CBE received a temporary State permit to build the LGU facility, which is currently operational.
(3)The town notified NCES that it could not expand its landfill without first obtaining site-plan review and building permits from the town. Because of the NCES I litigation, however, the town did not initiate enforcement proceedings.
(4)The town notified CBE that it could not construct the LGU facility without a building permit and prior site approval. The town also asserted that the LGU facility violated a 1986 town ordinance prohibiting incinerators.
(5)In 2000 and 2001, the town amended its zoning laws to limit the height of "solid waste disposal facilit[ies]" to no more than ninety-five feet "measured from the natural and undisturbed contour of the land under any existing or future landfill."

In September 2001, NCES petitioned the trial court for, among other things, declarations that: (1) the town is precluded from exercising its site-plan review authority over and applying its height ordinance to the landfill's development within the fifty-one acre parcel; and (2) the town's height ordinance and site plan review regulations are preempted by RSA chapter 149–M.

The town counterclaimed for breach of contract and violation of certain of the conditions of the 1985 special exception. Additionally, the town sought a declaration that, with respect to Stage III and the LGU facility, NCES must bring a site plan to the planning board and, if the plan is approved, must then obtain a building permit.

After the instant lawsuit was filed, in April 2002, NCES applied for a State permit to develop Stage IV of the landfill. Nearly all of Stage IV involves land outside of the fifty-one acres. That same month, the town amended its counter-petition to seek the following declarations: (1) the part of Stage IV that expands beyond the fifty-one acres addressed in NCES I is prohibited by the town's zoning ordinances, including the 1987 and 1992 amendments; and (2) prior to continuing to seek State approval for Stage IV, NCES must apply for and obtain "all local approvals." NCES received State permission for Stage IV in March 2003.

C. Trial Court's Ruling

Following a four-day bench trial, the court issued a lengthy order on the merits of the parties' petitions. The court made the following rulings regarding the town's zoning ordinances: (1) the 1987 zoning amendment is preempted by RSA chapter 149–M because it is inconsistent with the State legislative scheme; (2) the 1992 zoning amendment is not preempted by RSA chapter 149–M and may be used by the town to prohibit expansions of the landfill beyond the fifty-one acres; (3) because the town's 1986 ordinance forbidding incinerators is preempted by the State Air Pollution Control Act, RSA chapter 125–C, the town may not apply it to the LGU facility; and (4) the town may apply its height ordinance to any development of the landfill within the fifty-one acres, including Stage III and portions of Stage IV.

With respect to the town's building permit and site-plan review requirements, the court ruled that: (1) portions of a town's site-plan review process are preempted by RSA chapter 149–M, while others are not; (2) the town may apply the non-preempted portions of the site-plan review process to all landfill construction that has taken place after Stage II, phase two; and (3) because the landfill is a permitted use within the fifty-one acres and because its form is regulated by the State, the town may not require NCES to obtain a building permit to expand the landfill, but may require it to obtain a building permit to build specific structures, such as the LGU facility, on the landfill.

Finally, the court ruled that only two of the conditions of the 1985 special exception that the town asserted NCES had violated were enforceable. Neither NCES nor the town has appealed this ruling.

II. Discussion
A. State Law Preemption

On appeal, NCES asserts that RSA chapter 149–M preempts the entire field of solid waste management facility regulation, except as set forth in RSA 149–M:9, VII (Supp.2003), which NCES argues permits only local regulation of facility location. Accordingly, NCES contends that RSA chapter 149–M preempts the 1992 zoning amendment, the height ordinance, the town's entire site-plan review process and its building permit requirement. The town counters that, as the trial court ruled, RSA chapter 149–M preempts only certain aspects of solid waste management facility regulation.

1. General Principles

"The state preemption issue is essentially one of statutory interpretation and construction—whether local authority to regulate under a zoning enabling act ... is preempted by state law or policy." 3 A.H. Rathkopf &...

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