Town of Lincoln v. Chenard

174 N.H. 762

274 A.3d 1181

TOWN OF LINCOLN

v.Joseph CHENARD

No. 2020-0316

Supreme Court of New Hampshire.

Argued: June 15, 2021

Opinion Issued: January 19, 2022

Hastings Malia P.A., of Fryeburg, Maine (Peter J. Malia and Jason B. Dennis on the brief, and Peter J. Malia orally), for the plaintiff.

Bruce J. Marshall Law Offices, PLLC, of Bow (Bruce J. Marshall on the brief and orally), for the defendant.

MacDonald, C.J.

The defendant, Joseph Chenard, appeals an order of the Superior Court (MacLeod, J.) ruling that he is operating or maintaining a junk yard in violation of RSA 236:114. See RSA 236:114 (2009). The plaintiff, Town of Lincoln (town), cross-appeals the trial court's denial of its request for costs and attorney's fees. See RSA 676:17, II (2016). We affirm.

I. Background

The trial court found the following facts. The defendant owns the properties at issue, consisting of four lots located in the town's "General Use" zoning district, which allows junk yards only by special exception. The properties contain "large amounts of personal belongings" stored "both outdoors and in a number of sheds, which are generally in a dilapidated condition." During its view of the properties, the court observed "old or used scrap metal including numerous machine or automotive parts, tires, wheels, cables and wiring, woodstoves, snowplows, construction debris, steel drums, plastic barrels, and other detritus." In addition, the court observed "several automobiles that did not appear to be in working order, as well as old snowmobiles, lawnmowers, and ATVs, an old boat, and two semi-trailers." All of the materials stored on the defendant's properties belong to him and are stored there for his personal use. The defendant does not have a license to operate a junk yard business, nor does he have a special exception from the town.

The town sought injunctive relief to stop the defendant from operating a junk yard in violation of RSA 236:114, see RSA 236:128, I (2009), and the town's zoning ordinance. In addition, the town sought the imposition of civil penalties, see RSA 236:128, III (2009), and an award of costs and attorney's fees, see RSA 676:17, II. Following a hearing, the trial court found that the defendant is operating or maintaining a junk yard in violation of RSA 236:114 and that his properties are, therefore, a nuisance. See RSA 236:119 (2009). The court ordered the defendant to end his violation of RSA 236:114 and abate the nuisance by a certain date and, if he failed to do so, authorized the town to impose a civil penalty of up to $50 per day for every day the nuisance continued and until such time as the nuisance was abated to the town's satisfaction. See RSA 236:128, III. The trial court denied the town's request for costs and attorney's fees.

Subsequently, the parties each moved for reconsideration. The court denied the defendant's motion for reconsideration, partially granted the town's motion for reconsideration, and modified its order in part. In addressing the town's request to reconsider the trial court's denial of costs and attorney's fees, the court agreed it had overlooked that the town's petition also sought to enforce the local zoning ordinance. Nonetheless, the court determined that, under the ordinance, the defendant must sell junk in order to operate a junk yard. Because all of the materials stored on the defendant's properties belonged to him and were stored there for his personal use, the court concluded that the defendant was not using his properties as "Junk Yards" under the zoning ordinance. This appeal followed.

II. Analysis

On appeal the defendant argues that the trial court erred as a matter of law by: (1) applying the provisions of RSA 236:111 - :129 to the defendant's non-business personal properties; (2) determining that the defendant was operating a junk yard without specifying which of his individual properties qualified as such; and (3) applying the wrong statute. In its cross-appeal, the town argues that the trial court unsustainably denied its request for attorney's fees, contending that because it "prevailed in enforcing its zoning ordinance through legal action," it is entitled to an award of its costs and attorney's fees pursuant to RSA 676:17, II.

A. Standards of Review

We defer to the trial court's findings of fact if they are supported by the evidence and are not erroneous as a matter of law. City of Rochester v. Corpening, 153 N.H. 571, 573, 907 A.2d 383 (2006). We review the trial court's statutory interpretation de novo. Anderson v. Robitaille, 172 N.H. 20, 22, 205 A.3d 1105 (2019). We first look to the language of the statute itself and, if possible, construe that language according to its plain and ordinary meaning. Id. We give effect to every word of a statute whenever possible and will not consider what the legislature might have said or add language that the legislature did not see fit to include. In re J.P., 173 N.H. 453, 460, 242 A.3d 823 (2020). We also construe all parts of a statute together to effectuate its overall purpose and avoid an absurd or unjust result. Anderson, 172 N.H. at 22-23, 205 A.3d 1105. However, we do not construe statutes in isolation; instead, we attempt to construe them in harmony with the overall statutory scheme. Id. at 22, 205 A.3d 1105.

"The interpretation of a zoning ordinance is a question of law, which we review de novo. Because the traditional rules of statutory construction govern our review, we construe the words and phrases of an ordinance according to the common and approved usage of the language." Town of Barrington v. Townsend, 164 N.H. 241, 246, 55 A.3d 952 (2012). "[W]e determine the meaning of a zoning ordinance from its construction as a whole, not by construing isolated words or phrases." Working Stiff Partners v. City of Portsmouth, 172 N.H. 611, 616, 232 A.3d 379 (2019).

"An award of attorney's fees must be grounded upon statutory authorization, a court rule, an agreement between the parties, or an established exception to the rule that each party is responsible for paying his or her own counsel fees." In the Matter of Martel & Martel, 157 N.H. 53, 63, 944 A.2d 575 (2008) (quotation omitted). We review the trial court's denial of attorney's fees under an unsustainable exercise of discretion standard. Id. "To be reversible on appeal, the discretion must have been exercised for reasons clearly untenable or to an extent clearly unreasonable to the prejudice of the [appealing] party. If there is some support in the record for the trial court's determination, we will uphold it." Id. (quotation omitted).

B. State Junk Yard Statute

RSA chapter 236 contains several subdivisions setting forth "Highway Regulation, Protection and Control Regulations." RSA 236:111 - :129 (2009 & Supp. 2020). RSA 236:111 - :129 cover motor vehicle recycling yards and junk yards. Pursuant to RSA 236:114, "[a] person shall not operate, establish, or maintain a junk yard ... until he (1) has obtained a license to operate a junk yard business and (2) has obtained a certificate of approval for the location of the junk yard." To obtain a license, an applicant must apply in writing to the municipality's local governing body, accompanied by a certificate from the zoning board of adjustment that the proposed location does not violate the zoning ordinance. See RSA 236:115. Following a hearing at which the local governing body takes into account, among other things, the suitability of the applicant to comply with regulations applicable to junk yards, the location of the junk yard, and aesthetics, the application must either be approved or denied within two weeks. See RSA 236:116 - :118, :120-:121.

With two exceptions not applicable here, the subdivision applies to all junk yards as defined in RSA 236:112, I. See RSA 236:111-a, I; see also RSA 236:12. "Junk yard" is defined as

a place used for storing and keeping, or storing and selling, trading, or otherwise transferring old or scrap copper, brass, rope, rags, batteries, paper, trash, rubber debris, waste, or junked, dismantled, or wrecked motor vehicles, or parts thereof, iron, steel, or other old or scrap ferrous or nonferrous material.

RSA 236:112, I. The express purpose of the subdivision is

to conserve and safeguard the public safety, health, morals, and welfare, and to further the economic growth and stability of the people of the state through encouragement to the development of the tourist industry within the state. A clean, wholesome, attractive environment is declared to be of importance to the health and safety of the inhabitants and the safeguarding of their material rights against unwarrantable invasion. In addition, such an environment is considered essential to the maintenance and continued development of the tourist and recreational industry which is hereby declared to be of significant and proven importance to the economy of the state and the general welfare of its citizens. At the same time, it is recognized that the maintenance of junk yards as defined in this subdivision, is a useful and necessary business and ought to be encouraged when not in conflict with the express purposes of this subdivision.

RSA 236:111 (2009).

The defendant argues that the trial court erred because "[t]he Legislature clearly intended" the statutory scheme "to apply to businesses when they wrote that junk yards as defined in the subdivision were useful and necessary businesses." (Bolding omitted.) The town counters that the trial court correctly concluded that under RSA 236:112, a junk yard need not be a place of business, "but may be any ‘place’ used for the purposes enumerated in that statute." (Quotation omitted.) We agree with the town.

As defined in the subdivision, a junk yard includes "a place" used for "storing and keeping" or "storing and selling" or "otherwise transferring" the items enumerated in the statute. RSA 236:112, I. Thus, under the plain and ordinary meaning of the words used, a person can "stor[e] and keep[...