Town of North Hampton v. Sanderson

• Decision Date: 03 May 1989
• Docket Number: No. 88-085,88-085
• Citation: 131 N.H. 614,557 A.2d 643
• Parties: TOWN OF NORTH HAMPTON et al. v. Jarib M. SANDERSON, Jr.
• Court: New Hampshire Supreme Court

Page 643

557 A.2d 643

131 N.H. 614

TOWN OF NORTH HAMPTON et al. v. Jarib M. SANDERSON, Jr.

No. 88-085.

Supreme Court of New Hampshire.

May 3, 1989.

Sanders and McDermott, Hampton (Lawrence M. Edelman on the brief and orally), for plaintiff, the Town of North Hampton.

Holland, Donovan, Beckett, Welch & Hermans P.A., Exeter (Robert B. Donovan on the brief and orally), for defendant.

Casassa and Ryan, Hampton (Kenneth D. Murphy on the brief and orally), for intervenors, John R. and Bernice D. Newton.

BROCK, Chief Justice.

The defendant, Jarib M. Sanderson, Jr., appeals from a decision of the Superior Court (Dunn, J.) ordering him to cease and desist in the removal of gravel from a parcel of land in North Hampton. He claims that the trial court erred by: (1) ruling that a settlement agreement he entered into with the Town of North Hampton ("town") was not valid and binding; (2) finding that he violated the terms of the agreement; (3) failing to grant his request that a permit for gravel removal was not required because of the actions of the North Hampton Planning Board; (4) finding that neither the permit requirements of the town zoning ordinance, section 511, nor the provisions of RSA chapter 155-E apply to his activities; and (5) in ruling that both the plaintiff and the intervenors were entitled to costs and attorney's fees under RSA 155-E:10. For the reasons that follow, we affirm.

On June 27, 1979, the defendant purchased approximately fourteen acres of land in an approved residential subdivision on Lovering Road in North Hampton. The land consisted of five lots, numbers nine through thirteen, which were mostly situated above the existing grade of Lovering Road.

Prior to purchasing the land, on May 1, 1979, the defendant appeared before a meeting of the planning board to inquire about removing gravel from the land. Since 1968, the town has had a zoning ordinance requiring individuals to apply for and obtain permits from the planning board to operate gravel pits. North Hampton Zoning Ordinance, section 511. According to the minutes of the meeting, the defendant informed the planning board that he intended to purchase the land and that he planned to "lower the level of land by removing gravel form [sic] some areas." Harry Brinser, the chairman of the meeting, informed the defendant that "he was within his rights to do so as long as he retained the loam and caused no drainage problems." The defendant never applied to the planning board for a permit to remove the gravel. After the purchase of the lots, the defendant commenced the removal of gravel, beginning on lot 13 and subsequently expanding his operations to include lots 9 through 12.

On August 28, 1979, the town, through its zoning enforcement officer, ordered the defendant to cease and desist in the removal of gravel. The defendant responded in a letter stating that the planning board had given him "official permission to remove gravel," he was not operating a gravel pit, and that he was "not in violation of Section 511 or any other town ordinances." Rather, he claimed to be "merely doing site work and preparing [his] lots for single family residences in accordance with the Planning Board directives." In September, 1979, the town filed a complaint in North Hampton District Court charging the defendant with violation of section 511 of the town zoning ordinance and violation of the cease and desist order. Subsequently, on September 24, 1979, the defendant and the board of selectmen, acting on behalf of the town, entered into a settlement agreement by which the town released its claims against the defendant in exchange for his promise to repair damage and restore certain road conditions. The planning board was not a party to the agreement.

Over the next several years, both the planning board and the board of selectmen contacted the defendant concerning the removal of gravel. In March, 1981, the planning board advised the defendant to apply for a permit in order to comply with section 511 of the zoning ordinance. In July, 1985, the board of selectmen, in a letter to the defendant, requested that he correct a dust problem which purportedly violated the terms of the settlement agreement. The selectmen again, in October 1985, contacted the defendant concerning compliance with RSA chapter 155.

The intervenors, John R. and Bernice D. Newton, own and reside upon land abutting the defendant's property. In September, 1986, they filed a bill in equity requesting that the town enforce compliance with the permit requirements of the zoning ordinance and RSA chapter 155-E. The town then filed suit against the defendant in September, 1987, seeking the temporary and permanent injunction from further gravel removal operations, fines, costs, and attorney's fees under RSA 155-E:10, II (Supp.1988), and restoration pursuant to RSA 155-E:5 (Supp.1988) and the town zoning ordinance. The two actions were consolidated and the Newtons were allowed to intervene in the town's action. The superior court, approving the recommendation of the Master (Charles T. Gallagher, Esq.), ordered the defendant to cease and desist from further excavation until he applied for and received all permits required by State and local authorities. The court also awarded attorney's fees to both the town and the intervenors, pursuant to RSA 155-E:10, II (Supp.1988). This appeal followed.

The defendant contends that the settlement agreement, signed by the board of selectmen, is valid and binding and constitutes, in effect, a "permit" for the removal of gravel. He argues that the agreement is consistent with the intent of the zoning ordinance and is governed by the principles of J.E.D. Associates, Inc. v. Town of Danville, 122 N.H. 234, 444 A.2d 493 (1982). That case involved a settlement agreement entered into by town counsel who was representing the planning board, the town, and the board of selectmen in a dispute concerning the application of subdivision regulations. Noting that subdivision regulations were within the exclusive jurisdiction of the planning board, this court held that the agreement was binding because the town's counsel was representing the planning board, which was a party to the action, in addition to representing the other defendants. Id. at 236, 444 A.2d at 494. The defendant argues that J.E.D. Associates, Inc. governs this case because the planning board informed the defendant at its May 1, 1979 meeting that he did not need a permit.

We disagree with the defendant's contentions. The fact that one planning board member told the defendant he need not obtain a permit does not bring this case within the scope of J.E.D. Associates, Inc. The defendant himself correctly points out that under sections 511.1 and 511.2 of the town zoning ordinance, the power to regulate gravel pits lies with the planning board. Unlike the planning board in J.E.D. Associates, Inc., which was a party in the lawsuit, here the North Hampton planning board was a party to neither the action brought against the defendant in 1979, nor the settlement agreement. Furthermore, we fail to see how the statement of one planning board member at the May, 1979 meeting can be construed as an approval or ratification of the settlement agreement entered into four months later.

In Buxton v. Town of Exeter, 117 N.H. 27, 369 A.2d 188 (1977), this court held that the Exeter board of selectmen did not have the authority to enter into a settlement agreement which would grant a special exception for the operation of a gravel quarry, because the zoning ordinance vested that power exclusively in the board of adjustment. The agreement was therefore without effect. Id. at 29, 369 A.2d at 189. The law of Buxton applies to this case. Because sections 511.1 and 511.2 give the planning board, and not the selectmen, the authority to issue permits for the operation of gravel pits, we hold that the settlement agreement was invalid and could not bind the parties. As we stated in Buxton, "[T]he selectmen may not do indirectly that which they cannot do directly." Buxton, supra at 29, 369 A.2d at 189. It is therefore unnecessary for us to consider the issue of whether the defendant's actions constituted a breach of the agreement.

The defendant next argues that the master erred by failing to grant his request that a permit was not required because the chairman of the planning board informed him he could remove gravel "as long as he retained the loam, and caused no drainage problems," and that under section 511.1, the planning board may allow excavation without the necessity of applying for and obtaining a permit. We reject this argument.

Section 511.1 provides:

"No further permits shall be issued for a Quarry, Gravel Pit, Sand Pit or for any similar use, or for the removal of loam except upon application to and at the option of the Planning Board. Permits may be issued if in their opinion it is not injurious or detrimental to the neighborhood."

The defendant construes the language "at the option of the Planning Board" to mean that they could opt not to require a permit altogether but allow excavation. Reading the language of the ordinance according to its plain and ordinary meaning, it is obvious that the board has only two options; it can either decide to issue a permit or deny the applicant's request and refuse permission to excavate. Furthermore, sections 511.3 through 511.5 provide a detailed procedure which an applicant must follow to apply for a permit. The defendant did not apply for a permit as section 511 requires, and we will not interpret the ordinance or the planning board's actions as excusing this requirement.

We note, moreover, that the defendant's position before the planning board and at trial was that he was not operating a gravel pit but merely was leveling off the land and lowering the grade to street level to prepare it for residential building lots. On such a set of facts, the planning board member might...