Town of Atkinson v. Malborn Realty Trust
164 N.H. 62
N.H.2012Background
- Osborns converted a seasonal camp to year‑round use with a variance conditioned on meeting Fire/Police access requirements.
- A May 2008 conditional building permit was issued; sprinkler requirement tied to access, not just occupancy.
- Osborns installed a high‑grade driveway without Fire Chief consent and did not install a sprinkler system.
- Osborns occupied the home in 2009 despite no certificate of occupancy, violating local building code.
- Town sued for injunction, civil penalties, and attorney’s fees; Osborns vacated in July 2010 following an injunction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the injunction was proper. | Town contends occupancy without sprinkler is unlawful and injunctive relief warranted. | Osborns contend no basis for injunction given disputed waiver and procedural issues. | Injunction affirmed with conditions requiring sprinkler installation. |
| How the civil penalty should be calculated under RSA 676:17,1. | Penalty should reflect daily offense per day after notice, non‑double charging. | Single notice means first offense only; penalties pool as 275 + 550 per day for 200 days. | Penalty reduced to 55,000 total (275 per day for 200 days). |
| Whether Town is entitled to attorney’s fees under RSA 676:17, II. | Prevailing party entitled to reasonable attorney’s fees; retainer should not bar recovery. | Retainer agreement means no ‘actually expended’ fees. | Fees awarded on remand; “actually expended” interpreted as depleted portion of retainer. |
| Legality of enforcing sprinkler requirement under Laws 2010, ch. 282. | Town acted under state fire regulations; sprinkler mandate compatible with NFPA standards. | Ch. 282 precludes such requirements before July 1, 2011. | Rule consistent with NFPA and state regulations; not a violation of ch. 282. |
Key Cases Cited
- N.H. Dep’t of Envtl. Servs. v. Mottolo, 155 N.H. 57 (N.H. 2007) (injunction standard; review of factual findings)
- Rabbia v. Rocha, 162 N.H. 734 (N.H. 2011) (credibility and weight of evidence; defer to trial court)
- Frost v. Comm’r, N.H. Banking Dep’t, 163 N.H. 365 (N.H. 2012) (standard for upholding injunctions)
- Willow Properties v. Burlington Coat Factory of N.H., 159 N.H. 494 (N.H. 2009) (waiver and intent; factual findings review)
- Thomas v. Town of Hooksett, 153 N.H. 717 (N.H. 2006) (elements of estoppel in municipal actions)
- Town of Amherst v. Gilroy, 157 N.H. 275 (N.H. 2008) (continuing violation; legislative response)
- Simpson v. Young, 153 N.H. 471 (N.H. 2006) (statutory interpretation of daily penalties)
- Town of Henniker v. Homo, 136 N.H. 88 (N.H. 1993) (interpretation of penalties and offenses)
- Alexander v. Appeal of Alexander, 163 N.H. 397 (N.H. 2012) (reading statutes as a whole; plain meaning)