Town of Barrington v. Gadd, 88-219

Decision Date31 January 1990
Docket NumberNo. 88-219,88-219
Citation132 N.H. 650,569 A.2d 231
PartiesTOWN OF BARRINGTON v. John GADD, Nancy Gadd, and Jonathan Milne.
CourtNew Hampshire Supreme Court

McNeill, Taylor & Dolan P.A., Dover (Michael P. Murphy on the brief, and Malcolm R. McNeill, Jr., orally), for plaintiff.

Charles H. Morang, Concord, by brief and orally, for defendants.

THAYER, Justice.

In this gravel pit case, a trial to the Master (R. Peter Shapiro, Esq.) resulted in a finding that the defendants' mineral extraction operation was in violation of both local ordinance and State statute. Consequently, the master recommended, and the Superior Court (Contas, J.) ordered, that the defendants, John Gadd, Nancy Gadd, and Jonathan Milne, be permanently enjoined from excavating beyond a designated three-acre area unless and until all requisite approvals and permits are obtained. It also ordered that the defendants cause the property to be reclaimed. In addition, the defendants were fined $8,900 (although the money was to be held in escrow and they were given the right to petition for abatement in twelve months) and were ordered to pay the Town of Barrington's costs and reasonable legal fees incurred in connection with the litigation. The defendants appeal to this court, raising a number of issues for our consideration. We find their arguments unpersuasive and, for the reasons that follow, affirm.

Although the defendants raised eleven specific questions in their notice of appeal, they briefed only five. At oral argument, after conceding that our recent decision in Town of Wolfeboro v. Smith, 131 N.H. 449, 556 A.2d 755 (1989) was dispositive of a number of the issues actually briefed, the defendants limited their arguments on appeal to three. Choosing to focus only on the State law issue, the defendants claim that their activities relevant to mineral extraction satisfy the three-part test delineated in Wolfeboro, and therefore entitle them to continue mining pursuant to the grandfather clause of RSA chapter 155-E. They further claim that the $8,900 fine levied against them, coupled with an award of costs and legal fees, is confiscatory in nature and "smacks of a contempt finding." Finally, the defendants claim that the master erred in limiting testimony concerning the issue of bias.

The relevant facts pertaining to the issues at hand are as follows. In the summer of 1978, John Gadd, having sold his fuel oil business, was interested in investing some of the proceeds in real estate. He discussed possible investment opportunities with Jonathan Milne, a former business acquaintance, and Milne suggested that Gadd purchase the property currently at issue in this case. Mr. Gadd bought the property from Barry and Lynda Lazaro on August 14, 1978. He retained title to the premises until October 28, 1985, when he conveyed the property to his wife, Nancy Gadd.

The property, located in the town of Barrington, consists of approximately 120 acres containing a house and various outbuildings. It is divided into two unequal parcels by Oak Hill Road North. Roughly ninety acres of this land lie to the west of the road, while the remaining approximately twenty-eight acres lie to the east of the road. The present dispute involves only twenty-five of the twenty-eight acres situated on the easterly side of Oak Hill Road North.

When Mr. Gadd purchased the property, it was decided that he and Mr. Milne would work in concert. Gadd acquired title to the property, but the carrying costs were to be paid by Milne. It was further agreed that Mr. Milne and his family would occupy the premises and, in lieu of rent, would improve the buildings and property. Any profits generated from the Milnes' use of the property were to be used to defray the operating and capital costs. Potential uses of the property were discussed and included, inter alia, the excavation of minerals.

Pursuant to his oral agreement with John Gadd, Milne began to improve the property. He had the water and septic systems repaired. He also had a small pond dug behind the house. In addition, he had a riding ring and exercise area developed. The excess fill from these projects, consisting primarily of loam and sand, was stockpiled on the premises. Some of these stockpiled minerals were bartered for goods and services. Others were utilized by Mr. Milne on additional property in which he had an interest.

It was not until the spring of 1985 that the defendants began to discuss with the town the possibility of using the property for commercial excavation of sand and gravel. While the town advised the defendants that RSA chapter 155-E would have to be complied with and that zoning board and planning board approval would be required, the defendants maintained that they had a non-conforming use and therefore were entitled to continue excavations as authorized by the RSA chapter 155-E grandfather clause in Laws 1979, 481:3.

On May 15, 1986, Mr. Milne met with the board of selectmen. He explained that he was experiencing financial difficulties and asked permission to mine a portion of the property. Although they made no independent investigation as to the history of the use of the property or its current status, the selectmen agreed that Mr. Milne would be allowed to mine a three-acre parcel of the premises. There is no dispute between the parties as to the defendants' right to mine this limited area.

On or about July 1, 1986, defendants John Gadd and Nancy Gadd entered into a "lease-contract" with Dwight W. Sharp to allow him to remove sand and gravel from the subject premises. Although the agreement called for excavation of a twenty-five-acre tract of land, the financial terms of the arrangement were ultimately substantially changed in order to reflect the fact that excavation would actually be limited to the three-acre area referred to above. The defendants, however, did not confine their mining activities to this three-acre area; they proceeded to mine a portion of the property well outside the three-acre limit. In addition to Mr. Sharp's group, another firm, Fisher Excavation, started to extract minerals from beyond the designated limits sometime in May of 1987.

An on-site investigation of the property by the town road agent on May 19, 1987, revealed that minerals had been and were being extensively mined in areas well beyond the three-acre parcel. On July 14, 1987, a cease and desist order, demanding that they stop all excavation except within the delineated three-acre area, was served on the defendants. They ignored this order, and the town subsequently filed suit against them. This action resulted in a temporary restraining order being entered on August 5, 1987. Excavation in the disputed twenty-five-acre area did not stop, however, until August 17, 1987, at which time the town posted a $10,000 bond. After the five-day trial of this matter, the master found in favor of the plaintiff town.

Before reaching the specific issues raised on appeal, we pause briefly to note the applicable standard of review. Because "the master is in the best position to observe the parties, evaluate the evidence, and assign credibility to the testimony," In re Adoption of Baby C., 125 N.H. 216, 225, 480 A.2d 101, 106 (1984), we will not disturb his findings "unless they are unsupported by the evidence or are erroneous as a matter of law," Demetracopoulos v. Strafford Guidance Ctr., 130 N.H. 209, 213, 536 A.2d 189, 192 (1987). The master's findings are supported by the evidence when the record discloses "evidence from which a reasonable person could have made such findings," Town of Plaistow v. Nadeau, 126 N.H. 439, 442, 493 A.2d 1158, 1161 (1985); and, as long as the decision is supported by the evidence, "[t]his court will not substitute its judgment for that of the trier of fact," N.H. Donuts, Inc. v. Skipitaris, 129 N.H. 774, 779, 533 A.2d 351, 353 (1987). This is particularly true when, as here, "the trier of fact has bolstered his conclusions with a view." N.H. Donuts, 129 N.H. at 779, 533 A.2d at 353.

The master found that the defendants' mineral extraction operation was conducted not only in violation of the Town of Barrington's zoning ordinance, enacted in 1972, but also in violation of State law; namely, RSA chapter 155-E, which pertains to the local regulation of excavations. We agree.

The defendants do not deny that RSA 155-E:2 (Supp.1988) specifically mandates that "[n]o owner shall permit any excavation of earth on his premises without obtaining a permit." They also do not deny that, at all times relevant to this lawsuit, they failed to obtain the requisite permit. They argue, however, that their excavation operation existed and was in use on August 24, 1979, the effective date of the applicable legislation, and is therefore exempt from the permit requirement of RSA 155-E:2 (Supp.1988). The defendants claim that they are authorized to continue their mining activities pursuant to the grandfather clause of RSA chapter 155-E, which specifically provides that

"[a]ny owner of an existing excavation in use as of the effective date of this act and which is subject to this act may continue such existing excavation without a permit but shall perform restoration in compliance with RSA 155-E:5 within a reasonable period following the intended cessation of the excavation or any completed section thereof."

Laws 1979, 481:3.

We recently had occasion to discuss and interpret this grandfather clause in the case of Town of Wolfeboro v. Smith, 131 N.H. 449, 556 A.2d 755. We held

"that a party who desires to continue excavation operations without a permit under RSA chapter 155-E must meet a three-pronged test: First, he must prove that excavation activities were actively being pursued when the law became effective; second, he must prove that the area that he desires to excavate was clearly intended to be excavated, as measured by objective manifestations and not by subjective intent; and, third, he must prove that...

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