Town of Nottingham v. Bonser

• Decision Date: 09 December 1988
• Docket Number: Nos. 86-005,86-255,s. 86-005
• Citation: 131 N.H. 120,552 A.2d 58
• Parties: TOWN OF NOTTINGHAM v. Robert A. BONSER and Cedar Waters Village, Inc.
• Court: New Hampshire Supreme Court

Page 58

552 A.2d 58

131 N.H. 120

TOWN OF NOTTINGHAM v. Robert A. BONSER and Cedar Waters Village, Inc.

Nos. 86-005, 86-255.

Supreme Court of New Hampshire.

Dec. 9, 1988.

Engel & Gearreald, Exeter (Mark S. Gearreald on the brief and orally), for plaintiff.

Thomas C. Dunnington, Jr., Dover, by brief and orally, for Cedar Waters Village, Inc.

Robert A. Bonser, pro se.

SOUTER, Justice.

The Superior Court (Nadeau, J.) ordered the defendants to reimburse the plaintiff for attorney's fees incurred in seeking to enforce an order enjoining zoning violations and, in a separate proceeding, held the defendants in civil contempt for violating the original injunction. The defendants have appealed in each instance, although the corporate defendant has defaulted in the appeal from the fee award. We affirm each order.

More than seven years have passed since the events first giving rise to this litigation, which has required frequent and protracted appearances before the superior court, numerous orders by this court, proceedings in the United States District Court and the Court of Appeals for the First Circuit, and the prior appeal and opinion sub nom. Bonser v. Courtney, 124 N.H. 796, 481 A.2d 524 (1984), from which we will summarize the facts through the spring of 1984. At all relevant times, the defendant Cedar Waters Village, Inc. has owned a tract of some 350 acres in the town of Nottingham, having received the land by conveyance from the defendant Robert A. Bonser and his wife. Bonser is the corporation's principal officer and stockholder.

In 1981, Bonser and the corporation caused or allowed six mobile homes to be placed on the land for residential use in violation of the town's zoning ordinance, which required conformance with regulations of the town planning board. The regulations, in turn, treated the use of the land for mobile home sites as a subdivision, for which the planning board's approval was necessary. Bonser v. Courtney, supra at 800, 481 A.2d at 525. The defendants failed to obtain or even apply for the requisite approvals, because of Bonser's belief that zoning regulation is a per se unconstitutional limitation on his property rights. Consistently with this position, he and Cedar Waters refused the town's demand for removal of the unapproved mobile homes, whereupon the town petitioned the superior court for an injunction against placing any further mobile homes on the tract and for an order to remove the six already there.

Disposition of the injunction petition was complicated by Bonser's insistence on representation by lay counsel and by his claim of constitutional entitlement to jury trial in the equity proceedings, which led the Superior Court (Dalianis, J.) to offer to empanel an advisory jury to recommend resolution of any disputed issue of fact that Bonser might identify. He identified none, and on June 10, 1982, Contas, J., enjoined the defendants from using the mobile homes pending compliance with the town's regulations and ordinances no later than September 1, 1982. The injunction provided that if the defendants failed to comply by that date, they would become subject to an order to remove the homes, and upon their failure to do so the town would then be authorized to remove the structures at the defendants' expense. Bonser, supra at 803, 481 A.2d at 527.

The defendants did nothing, the town apparently declined to exercise the judicially-authorized self-help, and hearings on a further petition brought by the town to require the defendants to take action elicited little more than additional expressions of Bonser's constitutional views. In November, 1982, Wyman, J., found Bonser in civil contempt and, inter alia, levied a fine for each day Bonser should remain so. In February, 1983, Dalianis, J., affirmed the November order and once again authorized the town to remove the mobile homes if the defendants had not done so by March 31, 1983.

On March 17, 1983, the town petitioned for Bonser's commitment to the county jail for contempt in having refused to pay the accumulating fines. At a hearing before Douglas, J., in April, 1983, the court determined that Bonser had the means to pay the fines for civil contempt, calculated their accrued total at $7,150 and committed him to jail until he should purge himself of the continuing contempt of court. In May, 1983, Bonser refused before Bean, J., to comply with the outstanding orders; and in June, Temple, J., denied his petition for habeas corpus, but released him on bail pending his intended appeal. Bonser, 124 N.H. at 807, 481 A.2d at 530.

This court accepted the appeal and held that Bonser's opportunity to attack the merits of the original injunction of June 1982, and to litigate his constitutional objection to zoning and demand for jury trial, had been limited to a direct appeal from the 1982 order, which he had not taken. Bonser, 124 N.H. at 810, 481 A.2d at 532. Although the court did entertain Bonser's collateral attack on the contempt finding itself as having been tainted by the failure to provide a jury trial, that issue was resolved against him, id., and the habeas appeal was otherwise limited to examining and affirming the trial court's personal and subject matter jurisdiction in the contempt proceeding. Bonser, 124 N.H. at 807-10, 481 A.2d at 530-32.

The court observed that Bonser had no grounds for pleading ignorance of judicial procedures for directly appealing those issues he had raised during the original injunction proceeding, and which he continued to insist on litigating collaterally. Not only had the superior court expressly advised him and his chosen lay counsel of the steps required to appeal the June 1982 order, but he had had the benefit of his own prior experience in appealing an earlier zoning action, Town of Nottingham v. Cedar Waters, Inc., 118 N.H. 282, 385 A.2d 851 (1978). Bonser, 124 N.H. at 811, 481 A.2d at 533. The court also took notice of the "veritable avalanche of motions, countermotions, and special appearances" that had been filed by Bonser and his lay counsel.

Much the same language might be used to allude to developments during the more than four and one-half years that have now elapsed since the habeas proceeding was concluded. The record before us indicates that the violation continues, the defendants remain in contempt, and the litigation, though eventful, has eluded resolution. Specifically, our earlier opinion was followed in the superior court by proceedings initiated by the town to attach and execute upon Bonser's bail money to secure payment of accrued monetary penalties, and by Bonser's motion to stay his surrender for reincarceration, his motion for new trial, motion for declaratory judgment, motion for dissolution of the original injunction, and motion for reconsideration of the superior court's various orders in response to preceding motions. Two further notices of appeal filed in this court resulted in affirmances of various trial court rulings rendered by Temple, J., Gray, J., and Nadeau, J. See unpublished orders dated May 24, 1985, in No. 85-075 and August 8, 1985, in No. 85-213, the former explaining at some length why Bonser's attempts to relitigate the merits of his various claims were barred by his failures to appeal rulings when he had had the opportunity to do so. Although the defendants were represented by a lawyer for at least some of the time consumed by these proceedings, our own files show that during this period Bonser was again represented by lay counsel in the person of his son, who appeared for him and communicated on his behalf as an "associate member" of the "New Hampshire Civil Rights Association," see State v. Settle, 129 N.H. 171, 174, 523 A.2d 124, 126 (1987), using stationery bearing the name of Joseph S. Haas as an officer of the association, see generally State (Haas Complainant) v. Rollins, 129 N.H. 684, 533 A.2d 331 (1987).

In the meantime, on March 1, 1985, Bonser had been remanded to the custody of the sheriff for further commitment as a result of the continuing civil contempt. Nadeau, J., reviewed the commitment in April and thereafter issued several orders for Bonser's temporary release to explore possibilities of compromise with the town selectmen. No compromise was reached, but at a hearing on May 23, 1985, Nadeau, J., issued the following new order sua sponte:

"[Bonser] is to be released from custody [in the Rockingham County House of Correction], forgiven all monetary penalties to date, and purged of contempt upon certification in writing, under oath, ... within 30 days ... that he has done one of the following:

1. Made official application, without equivocation, to the appropriate agencies of the Town of Nottingham, for all permits and approvals required by existing ordinances to allow the location of mobile homes on the defendants' land, or

2. Caused to be removed from the land all mobile homes for which he possesses no such permits and approvals, or

3. Paid to the Town of Nottingham the sum of $38,550 representing civil monetary penalties from November 26, 1982, to date.

If the defendant decides to act under Section 1 of this paragraph, he must pursue diligently, and complete the official application process and conform to all existing laws and ordinances governing the location of mobile homes on his land."

The judge explained from the bench that "[b]y virtue of this order, Robert Bonser receives one last chance to absolve himself of all contempt charges and financial loss by applying for the permits or removing the mobile homes."

Each party filed exceptions to the order, but on May 28, 1985, Bonser's son filed a written notice that his father would avail himself of the first option, a decision that Bonser confirmed by letter of that date to town counsel, in which he stated that

"I give you my word that I will pursue the applications dilligently [sic] and complete the official application process and conform to all existing laws and...