Town of Carroll v. Rines
164 N.H. 523
| N.H. | 2013Background
- Respondent owns two lots and controls two additional lots in Carroll's Residential Business District (R-B).
- Town filed in Oct 2009 to enjoin excavation on all four lots for RSA 155-E and zoning violations.
- Stipulation on Dec 29, 2009 limited excavation during litigation unless a permit and variance were obtained; Bond posting required.
- Spring 2010 subdivision approval allowed further excavation on the subdivided lots; parties later litigated penalties.
- Trial court held two excavation types: (a) Dec 29, 2009–Spring 2010 highway-related; (b) Spring 2010–June 22, 2010 highway or construction-related; court enjoined excavation and awarded penalties and fees.
- On appeal, issues included variance requirement, preemption by RSA 155-E, whether stockpile removal is excavation, sufficiency of evidence of excavation, and attorney’s fees.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Town's zoning ordinance requires a variance for excavation in the R-B district. | Riñes argues no variance is required. | Town contends variance is required for highway-related excavation in R-B. | Variance required for highway excavation in R-B (with caveat for incidental construction) |
| Whether RSA 155-E preempts the Town's variance requirement. | Riñes argues preemption eliminates local variance. | Town argues statute allows local regulation and preemption is limited. | RSA 155-E does not preempt the variance requirement for highway excavation; local regulation remains allowed. |
| Whether removal of stockpiled material constitutes excavation under RSA 155-E:1, II. | Riñes contends stockpile removal may not be excavation. | Town treated removal as within ordinance violations. | Court did not decide but upheld ruling that stockpile removal violated the ordinance absent a variance. |
| Whether penalties under RSA 676:17 were appropriately imposed for the entire excavation period. | Riñes challenges broad penalties. | Town seeks penalties for violations of zoning ordinance. | Penalties vacated pending remand to determine extent of incidental excavation; re-evaluate penalties. |
| Whether attorney’s fees were properly awarded as prevailing party. | Riñes says fee award misapplied to statutory basis. | Town entitled to reasonable attorney’s fees as prevailing party per RSA 676:17 II. | Fees vacated pending remand to allocate only fees tied to non-incidental excavation; remand guidance. |
Key Cases Cited
- Tonnesen v. Town of Gilmanton, 156 N.H. 813 (2008) (permissive zoning; excavation requires careful interpretation)
- Pike Indus. v. Woodward, 160 N.H. 259 (2010) (statutory interpretation of zoning ordinances; plain language governs)
- New London v. Leskiewicz, 110 N.H. 462 (1970) (variance definition and unauthorization in zoning)
- Arthur Whitcomb, Inc. v. Town of Carroll, 141 N.H. 402 (1996) (preemption of local regulation for permit-exempt excavations; express standards matter)
- Guildhall Sand & Gravel v. Town of Goshen, 155 N.H. 762 (2007) (local regulation vs. permit-exempt excavations; express standards limit preemption)
- Kalar (Petition of Kalar), 162 N.H. 314 (2011) (administrative gloss doctrine; ambiguity limits application)
- Van Der Stok v. Van Voorhees, 151 N.H. 679 (2005) (fee awards; severability of claims)