Town of Wolfeboro (Planning Bd.) v. Smith

Decision Date06 March 1989
Docket NumberNo. 87-434,87-434
Citation131 N.H. 449,556 A.2d 755
PartiesTOWN OF WOLFEBORO (PLANNING BOARD) v. Charles H. SMITH et al.
CourtNew Hampshire Supreme Court

Barto and Puffer P.A., Concord (Mark H. Puffer on the brief and orally), for plaintiff.

Frederic L. Cox, Wolfeboro, and Pamela D. Albee, Ossipee (Pamela D. Albee on the brief and orally), for defendants, Charles H. Smith, Richard D. Kourian and Everett S. Albee.

JOHNSON, Justice.

The plaintiff, Town of Wolfeboro (Planning Board) (hereinafter the Town), appeals from an order of the Superior Court (Dickson, J.) denying the imposition of a cease and desist order, based on its finding, upon an agreed statement of facts, that the defendants were entitled to continue excavating their property, under Laws 1979, 481:3, the grandfather clause of RSA chapter 155-E. We reverse and remand.

The defendants are the owners of approximately thirty-five acres of land located in Wolfeboro. Since 1950, when previous owners began excavating the property, an excavation pit has been continuously operated. On August 24, 1979, RSA chapter 155-E took effect. This statute requires owners to obtain a permit before their property can be excavated. RSA 155-E:2. Laws 1979, 481:3, however, allows the owner of an "existing excavation" to "continue such existing excavation" without a permit.

On the effective date of RSA chapter 155-E, approximately eight acres of the land now owned by the defendants had been excavated. By October 14, 1983, the date on which the defendants acquired title to the property, ten acres had been excavated. Additional excavation continued after the current owners acquired the property. There currently remain approximately ten acres of the total property to be excavated. Such excavation, according to the parties, will take two to five years to complete.

There has been some previous activity on the part of the land not yet excavated. Prior to the present ownership, the entire parcel was timbered twice, once in 1949 or 1950, and once about 1965. There was no agreement between the parties regarding the intent of the prior timbering activity as it may have related to plans to excavate. The defendants attempted, according to an unrebutted affidavit of plaintiff's counsel, to insert into the agreed statement of facts a statement as to the purpose of the timbering operations. Plaintiff's counsel objected, and the defendants' counsel agreed to delete the statement as to purpose or intent. Sometime after October 14, 1983, the present owners cut trees and brush, removed stumps and topsoil and spread manure to create topsoil for reclamation purposes over the entire unexcavated parcel. It was agreed that this activity was undertaken by the defendants in order to facilitate the excavation of sand on the property which they had purchased.

Subsequent to requesting the defendants to apply for a permit in accordance with RSA chapter 155-E, the Town filed a petition for a cease and desist order against the defendants. In its petition, the Town requested the court to enjoin the defendants temporarily and permanently from excavating their property without first obtaining a permit. On August 13, 1987, the trial court ruled that the defendants were entitled under Laws 1979, 481:3, to continue their excavation operations over the entire parcel of land owned by the defendants, without first obtaining a permit. The court found from the agreed statement of facts that "the defendants and predecessors in title manifested an intention to excavate the entire lot and in fact have proceeded to do just that. The plaintiff has failed to convince the court otherwise and has failed to convince the court why such extraordinary relief should be granted." The trial court also found, in response to plaintiff's requests for findings of fact, that the "size of the land area which is being excavated, or which has been excavated, ... has increased substantially since August 24, 1979," that the "location of the excavation or excavations on defendants' property has changed substantially," and that the "rate of removal of earth from the defendants' premises since defendants' [sic] purchased the property in October, 1983, has increased substantially as compared to August 24, 1979." On August 25, 1987, the Town filed a motion for reconsideration, which was denied. This appeal followed.

There is no dispute that the excavation of earth for commercial purposes is a permitted use under the Wolfeboro zoning ordinance. The sole issue before the court, as agreed by the parties, is whether the grandfather clause of RSA chapter 155-E, as set forth in Laws 1979, 481:3, entitles the defendants to excavate the remaining approximately ten acres of land located on their property, which contain valuable deposits, without first obtaining a permit.

As a first step in statutory construction, we will examine the language found in the statute. See Appeal of Coastal Materials Corp., 130 N.H. 98, 101, 534 A.2d 398, 399 (1987).

Laws 1979, 481:3, provides as follows:

"Any owner of an existing excavation in use as of the effective date of this act [Aug. 24, 1979] 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."

(Emphasis added.) The term excavation is defined in the body of RSA 155-E:1 as a "land area which is used, or has been used, for the commercial taking of earth, including all slopes." (Emphasis added.) The Town argues that by its very language the provision exempts only the "land area" which is being used, or which had been used, as of August 24, 1979, and therefore exempts continued excavation of only that land which has already been excavated as of the effective date of the chapter. Thus, according to the Town, an excavation can be continued only in depth; the grandfather clause does not exempt any other portion of the entire property upon which the excavation activities have been conducted.

However, the difficulty with accepting the Town's interpretation of the language found in the statute lies in the ambiguity of the phrase "land area which is used" for excavation and its distinction from an area which "has been used" for excavation. The Town asserts that the former term refers to land which is "being used," i.e., earth has already been excavated as of the effective date of the statute, while the latter refers to land which "had been used." However, the language of the statute does not require this interpretation.

The permit process of RSA chapter 155-E requires that an excavator restore the land after excavation has been completed. If the phrase "has been used" applies only to pits that "had been used," that is, depleted prior to the enactment of the statute, no rational excavator would apply to conduct excavations in those areas because he could reap no benefits, while at the same time he would acquire duties to restore these depleted pit areas through reclamation efforts. (See RSA 155-E:3, II and IV, requiring the application to be very specific as to the location, size, breadth, depth and slope of the excavation.) A more reasonable interpretation of the phrase "has been used" is land that has been partially excavated as of the effective date of the statute, and the owner later desires to renew excavation in the same area.

We find the phrase "land area which is used" for excavation to include land from which no earth has yet been taken, if such land has been clearly designated as an area for future excavation by an objective manifestation of the intent of the excavator to continue an operation onto that particular land area. In interpreting this statute, if land which "is used" for excavation, refers only to that land area which "has been used" for excavation, the legislature had no reason to include the phrase "is used" whatsoever because it would be surplusage. See RSA 155-E:1, II. We assume that all words in a statute were meant to be given meaning in the interpretation of a statute. See Merrill v. Great Bay Disposal Serv., 125 N.H. 540, 543, 484 A.2d 1101, 1103 (1984).

If the phrase "continue such existing excavation," as found in the grandfather clause, were understood to allow only vertical and not lateral expansion, such an interpretation would lead many owners, including the present defendants, to find that they could not "continue" their existing excavations for very long, if at all. Such an interpretation is also contrary to the decisions of the many courts which have examined a similar issue; namely, whether lateral expansion of an excavation onto land previously unexcavated constitutes a permitted continuation of a nonconforming use or an unpermitted expansion. See Stephan & Sons v. Municipality of Anchorage, 685 P.2d 98 (Alaska 1984); McCaslin v. City of Monterey Park, 163 Cal.App.2d 339, 329 P.2d 522 (1958); County of DuPage v. Elmhurst-Chicago Stone Co., 18 Ill.2d 479, 165 N.E.2d 310 (1960); Town of Billerica v. Quinn, 320 Mass. 687, 71 N.E.2d 235 (1947); Town of Burlington v. Dunn, 318 Mass. 216, 61 N.E.2d 243, cert. denied, 326 U.S. 739, 66 S.Ct. 51, 99 L.Ed. 441 (1945); Fredal v. Forster, 9 Mich.App. 215, 156 N.W.2d 606 (1967); Hawkins v. Talbot, 248 Minn. 549, 80 N.W.2d 863 (1957); Lambe v. McKee, Inc., 10 N.J. Misc. 649, 160 A. 563 (1932); Moore v. Bridgewater Township, 69 N.J.Super. 1, 173 A.2d 430 (App.Div.1961); Syracuse Aggregate Corp. v. Weise, 51 N.Y.2d 278, 434 N.Y.S.2d 150, 414 N.E.2d 651 (1980); Borough of Cheswick v. Bechman, 352 Pa. 79, 42 A.2d 60 (1945); Gibbons & Reed Co. v. North Salt Lake City, 19 Utah 2d 329, 431 P.2d 559 (1967). We are not aware of any jurisdiction which has stated that "continuing" an excavation necessarily allows only for an increase in depth and not in width.

The majority of courts which have...

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