Town of Carroll v. Rines

• Decision Date: 30 January 2013
• Docket Number: No. 2011–776.,2011–776.
• Citation: 62 A.3d 733,164 N.H. 523
• Parties: TOWN OF CARROLL v. William RINES.
• Court: New Hampshire Supreme Court

164 N.H. 523
62 A.3d 733

TOWN OF CARROLL
v.
William RINES.

No. 2011–776.

Supreme Court of New Hampshire.

Argued: June 13, 2012.
Resubmitted: Dec. 7, 2012.
Opinion Issued: Jan. 30, 2013.

62 A.3d 735

Gardner Fulton and Waugh P.L.L.C., of Lebanon (H. Bernard Waugh, Jr. on the brief and orally), for the petitioner.

D'Amante Couser Pellerin & Associates, P.A., of Concord (Bruce J. Marshall on the brief and orally), for the respondent.

CONBOY, J.

164 N.H. 525

The respondent, William Rines, appeals an order of the Superior Court (Vaughan, J.) that enjoined him from excavating on certain real property until he obtained a local use variance from the petitioner, Town of Carroll (Town), and that imposed civil penalties and attorney's fees. See RSA 676:17 (2008 & Supp.2012). We affirm in part, vacate in part, and remand.

The parties stipulated to, or the record supports, the following facts. The respondent owns two lots and controls two additional lots for excavation purposes in Carroll's Residential Business District (R–B district). In October 2009, the Town filed a petition to enjoin him from excavating on all four lots, contending that he was in violation of RSA chapter 155–E (2002 & Supp.2012), as well as the Town's zoning ordinance. On December 29, 2009, the trial court approved a stipulation between the parties pursuant to which the respondent agreed not to excavate during the pendency of the lawsuit unless he obtained a permit from the planning board and a variance pursuant to the Town's zoning ordinance, and posted any required bonds. After the respondent entered into the stipulation, he continued to remove previously excavated, stockpiled material from the lots for use on highway projects.

In the spring of 2010, the respondent received approval from the planning board to subdivide the two lots he owns; thereafter, he began excavating on those lots. Further court proceedings ensued, resulting in a court order of June 22, 2010, denying the respondent's request for ex parte relief. According to the parties' agreed upon statement of facts, following that court order, the respondent "has not severed any further materials from the ground."

In June 2011, the trial court held a final hearing on the Town's original petition to enjoin the respondent's excavation activities and recover civil penalties and attorney's fees. The trial court found that the respondent engaged in two types of excavation on the four lots: (1) from the date of the stipulation, December 29, 2009, until the respondent received subdivision approval in the spring of 2010, he excavated for highway purposes; and (2) from the date of subdivision approval to the date on which the respondent ceased all excavation, June 22, 2010, he excavated either for highway purposes or for purposes incidental to constructing a building, structure, parking lot, or way.

Ultimately, the trial court concluded that: (1) both types of excavation were exempt from the permitting requirements

62 A.3d 736

of RSA chapter 155–E; (2) the Town's zoning ordinance required the respondent to obtain a variance

164 N.H. 526

before excavating; and (3) RSA chapter 155–E did not preempt the Town's zoning ordinance. The court did not find the respondent in contempt for violating the stipulation. Instead, it enjoined him from excavating on the lots; imposed civil penalties pursuant to RSA 676:17, I, for the period between December 29, 2009, and June 22, 2010; and awarded mandatory attorney's fees. The respondent appealed.

On appeal, the respondent argues that: (1) the trial court erred by construing the Town's zoning ordinance to require him to obtain a variance to excavate in the R–B district; (2) the trial court erred by ruling that RSA chapter 155–E does not preempt the variance requirement; (3) the removal of stockpiled material does not constitute excavation pursuant to RSA 155–E:1, II (2002); (4) there was insufficient evidence to conclude that the respondent excavated between December 29, 2009, and June 22, 2010; and (5) the trial court erred by awarding mandatory attorney's fees.

The respondent first contends that the trial court erred by construing the Town's zoning ordinance to require him to obtain a variance to excavate in the Town's R–B district. The interpretation of a zoning ordinance is a question of law, which we review de novo. Pike Indus. v. Woodward, 160 N.H. 259, 262, 999 A.2d 257 (2010). We construe the words and phrases of an ordinance according to the common and approved usage of the language. Id. When the language of an ordinance is plain and unambiguous, we need not look beyond the ordinance itself for further indications of legislative intent. Id.

The ordinance establishes districts, expressly sets forth permitted uses within each district, and specifies uses that are allowed only by special exception. See Town of Carroll Zoning Ordinance, art. III, sec. 301, 303. Excavation is not a use permitted as of right in any district. See id. However, the ordinance does allow certain excavation activities in the "Residential (Breton Woods)" and "Industrial" districts by special exception. See id. art. III, sec. 303.2, 303.4. The ordinance does not expressly allow excavation by special exception within the R–B district. See id. art. III, sec. 303.3.

The respondent argues that he is not required to obtain a variance pursuant to the Town's ordinance because: (1) on its face, the ordinance does not require a variance; (2) the ordinance regulates gravel pits only; and (3) the Town has not previously interpreted the ordinance to require an excavation variance for an approved subdivision.

We reject the respondent's contention that, because the ordinance does not expressly require a variance, he is not required to obtain a variance for highway excavation. The Town's ordinance is a permissive zoning ordinance. See id. art. III, sec. 304. That is, it is "intended to prevent uses except those expressly permitted or incidental to uses so permitted."

164 N.H. 527

Tonnesen v. Town of Gilmanton, 156 N.H. 813, 815, 943 A.2d 782 (2008) (quotation omitted). Article III sets forth the uses permitted within each district and the uses allowed only upon the granting of a special exception. Article III neither permits excavation in the R–B district, nor allows excavation as a special exception. Accordingly, in the absence of a variance, excavation in the R–B district is generally prohibited. See New London v. Leskiewicz, 110 N.H. 462, 466, 272 A.2d 856 (1970) (defining variance as the "authority granted to the owner to use his property in a manner otherwise violative of the zoning regulations").

62 A.3d 737

Nor is the variance requirement limited to gravel pits, as asserted by the respondent. The ordinance does not permit, by special exception or otherwise, excavation within the R–B district. As a result, the respondent's argument is without merit.

Further, the Town's prior interpretation of the zoning ordinance is not relevant to our analysis. We construe the respondent's argument to assert the doctrine of administrative gloss, which is a rule of statutory construction. See Petition of Kalar, 162 N.H. 314, 321, 27 A.3d 756 (2011). "Administrative gloss is placed upon an ambiguous clause when those responsible for its implementation interpret the clause in a consistent manner and apply it to similarly situated applicants over a period of years without legislative interference." Id. (quotation omitted). However, "a lack of ambiguity in a statute or [an] ordinance precludes application of the administrative gloss doctrine." Anderson v. Motorsports Holdings, 155 N.H. 491, 502, 926 A.2d 261 (2007). Here, the Town's ordinance is not ambiguous. Thus, we reject the respondent's argument and conclude that the trial court did not err by interpreting the Town's zoning ordinance to require the respondent to obtain a variance before engaging in excavation for use in highway projects in the R–B district.

To the extent, however, that the trial court ruled that the respondent was required to obtain a variance to conduct excavation incidental to the construction of an otherwise permitted building, we conclude that it erred. As noted above, a permissive zoning ordinance is "intended to prevent uses except those expressly permitted or incidental to uses so permitted. " Tonnesen, 156 N.H. at 815, 943 A.2d 782 (quotation omitted) (emphasis added). Excavation that is merely incidental to the construction of an otherwise permitted building is, therefore, allowable under the ordinance regardless of whether the ordinance expressly allows the excavation. It is unclear on this record what portion, if any, of the excavation was incidental to the construction of a...