Town of Epping v. Harvey
| Decision Date | 19 August 1987 |
| Docket Number | No. 86-401,86-401 |
| Citation | 129 N.H. 688,531 A.2d 345 |
| Parties | TOWN OF EPPING v. Daniel HARVEY. |
| Court | New Hampshire Supreme Court |
Charles H. Morang, Concord, by brief and orally, for plaintiff.
Peter A. Meneghin, III, Newmarket, by brief and orally, for defendant.
This appeal is from an order of the Superior Court (Smith, J., approving a report of the Master, R. Peter Shapiro, Esq.), finding the defendant to be in civil contempt and imposing a monetary penalty and continuing fines. We reverse in part and remand.
The defendant, Daniel Harvey, is the owner of a tract of land on French Road in Epping. Prior to the enactment of a zoning ordinance which regulated mobile homes and provided for their location within the town, there were four mobile homes on this tract. A conflict originated in 1983 between the plaintiff, the Town of Epping, and the defendant when the latter placed an additional mobile home on his property and caused it to be occupied.
The defendant was notified on September 28, 1983 that his continued development of the property for mobile home sites would violate Epping's land use regulations. He added a fifth mobile home on this tract in October, without a building permit, mobile home permit or subdivision approval, and was notified by the town that he was in violation of the zoning ordinance. Subsequent to this notice, the mobile home was leased and occupied. The town commenced this action in order to compel the defendant to comply with its land use regulations and ordinances.
At the trial on the merits, the defendant argued that the land use ordinances and regulations in question were never lawfully enacted. He also argued that he should be allowed to keep and to continue using the mobile home on the above site because, with the four other mobile homes on that same property, he had established a pre-existing non-conforming use. The Trial Court (Gray, J.) approved the Master's report (R. Peter Shapiro, Esq.), which found the defendant to be in violation of the zoning ordinance and ordered him to comply with the ordinance, and deferred ruling on the imposition of a fine. The defendant filed a motion to set aside the decree, which was denied by the trial court on August 16, 1985. Thereafter, the defendant appealed to this court and the decision below was summarily affirmed on December 16.
The town's attorney then filed a motion for imposition of fines because the defendant had failed to comply with the trial court's order. The defendant objected to this motion, and a hearing was scheduled. Before the hearing, the town moved to withdraw its motion for imposition of fines, and a group of citizens filed for and obtained intervenor status and appeared at the hearing.
The master's report, dated July 14, 1986 and approved the following day, recommended that the defendant be: (1) found in civil contempt; (2) required to pay $10,244.07, which was the amount of the town's legal fees; (3) required to remove the mobile home from his tract unless the required approvals were obtained by October 1, 1986; and (4) assessed a fine of $100 per day until he no longer remained in contempt of court. The defendant appeals this contempt finding, arguing that it is invalid and unlawful and should be stricken, along with the requirement imposed by the court to pay the $10,244.07.
We begin with a brief and general discussion of contempt. In 1861, this court stated that "contempt is an offense at common law--a specific and substantive offense--and distinct from the matter under investigation when it is committed; and it belongs to the court before which it is committed to punish it." State v. Towle, 42 N.H. 540, 544 (1861). It is clear in the case at bar that finding the defendant to be in contempt is separate and distinct from finding that he violated the town's zoning ordinances. In addition, contempt may be direct or indirect, civil or criminal.
Direct contempt is that which is committed in the presence of the court so that the court has personal knowledge of each element thereof. Town of Nottingham v. Cedar Waters, Inc., 118 N.H. 282, 285, 385 A.2d 851, 854 (1978). Indirect contempt, by contrast, is that committed outside the presence of the court and without the court having observed each element of the contempt. Id. The difference between civil and criminal contempt is the character of the punishment. The purpose of civil contempt is "remedial, coercive, and for the benefit of the complainant[,]" while the purpose of criminal contempt "is to protect the authority and vindicate the dignity of the court." Id. at 285, 385 A.2d...
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Mortg. Specialists, Inc. v. Davey
..."in order to vindicate the integrity of the court" rather than to vindicate the rights of the parties. See Town of Epping v. Harvey, 129 N.H. 688, 691–92, 531 A.2d 345 (1987).The sanctions were also for indirect, rather than direct, criminal contempt. The trial court fined the defendants be......
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Mortgage Specialists, Inc. v. Davey
..."in order to vindicate the integrity of the court" rather than to vindicate the rights of the parties. See Town of Epping v. Harvey, 129 N.H. 688, 691-92, 531 A.2d 345 (1987). The sanctions were also for indirect, rather than direct, criminal contempt. The trial court fined the defendants b......
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...242 A.2d 78 (1968). The difference between civil and criminal contempt is the character of the punishment. Town of Epping v. Harvey, 129 N.H. 688, 691, 531 A.2d 345 (1987). In civil contempt, the punishment is remedial, coercive, and for the benefit of the complainant. Civil contempt procee......
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In re Roussin, Bankruptcy No. 85-59
...is a criminal proceeding by virtue of the common law authority of the state courts to vindicate their dignity. Town of Epping v. Harvey, 129 N.H. 688, 691, 531 A.2d 345 (1987); Town of Nottingham v. Cedar Waters, Inc., 118 N.H. 282, 385 A.2d 851 (1978); see also Douglas, Civil and Criminal ......