Greene v. Town of Deering

868 A.2d 986, 151 N.H. 795, 2005 N.H. LEXIS 36
CourtSupreme Court of New Hampshire
DecidedMarch 3, 2005
DocketNo. 2004-256
StatusPublished
Cited by9 cases

This text of 868 A.2d 986 (Greene v. Town of Deering) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Greene v. Town of Deering, 868 A.2d 986, 151 N.H. 795, 2005 N.H. LEXIS 36 (N.H. 2005).

Opinion

DALIANIS, J.

The appellant, Carroll J. Greene, appeals an order of the Superior Court (Barry, J.) upholding a decision of appellee Town of Deering Zoning Board of Adjustment (ZBA), which found that Greene had unlawfully expanded his non-conforming use, and ruling that he had no right to continue to operate his commercial junkyard. We reverse and remand.

The record reflects the following facts. On March 18, 2001, the Town of Deering (town) adopted the Deering Zoning Ordinance, which predicated the issuance of a commercial junkyard license, by the town’s selectmen, upon certain conditions. Additionally, the ordinance provided for the issuance of a license to a previously operating commercial junkyard that “lawfully existed” on the date of the enactment of the ordinance. The ordinance provided that persons not “legally operating” a commercial junkyard as of that date had to comply with additional provisions to obtain a license. Greene, who had been operating a commercial junkyard prior to March 13, 2001, applied for a license to continue to operate his junkyard. On March 30, 2001, the selectmen approved the issuance of Greene’s license, noting that Greene’s use was “grandfathered.” On March 29, 2002, the selectmen renewed that license.

After appellees 47 Residents of Deering, N.H. (the residents) voiced concerns about the March 29, 2002 renewal, a hearing was held. On [797]*797September 18, 2002, the selectmen decided not to revoke the license. On November 7, 2002, the residents appealed the selectmen’s decisions of March 30,2001, March 29,2002, and September 18,2002, to the ZBA.

The ZBA declined to address the appeal of the March 30, 2001 decision, concluding that it had not been timely filed and that consideration of the license was moot, as it had expired one year after its issuance. The ZBA accepted the appeals of the other decisions, however, and overturned the selectmen’s March 29, 2002 decision to renew Greene’s license. The ZBA found that Greene had increased his inventory in violation of a provision of the Aquifer Protection Ordinance (APO) that prohibited the expansion of certain non-conforming uses, including Greene’s junkyard. The ZBA concluded that this prohibited expansion occurred prior to the effective date of the Deering Zoning Ordinance, and therefore Greene’s junkyard was not “lawfully existing” as of the effective date of the Deering Zoning Ordinance. The ZBA concluded that the selectmen could not issue Greene future junkyard licenses unless Greene complied with the additional provisions of the Deering Zoning Ordinance applicable to junkyards that were not “legally operating” on the effective date of the ordinance. Greene appealed to the superior court, which upheld the ZBA’s decision. This appeal followed.

On appeal, Greene argues that the trial court erred by not reversing the ZBA’s decisions: (1) that it had subject matter jurisdiction to hear the residents’ appeals; (2) to waive the filing deadline for the residents’ appeals; (3) that the Deering Zoning Ordinance required the selectmen to determine whether Greene had a “lawfully existing” use as of March 13, 2001, each time they reissued his license; and (4) that Greene had unlawfully expanded his non-conforming use in violation of the APO prior to March 13,2001. Greene also challenges the trial court’s decision that his unlawful expansion completely divested him of his right to operate a junkyard, and its dismissal, as moot, of his request for a declaration as to the number of cars that he may maintain on his lot without violating the APO, and his request for an injunction prohibiting the town from enforcing its zoning ordinance against him. For the reasons that follow, we need only address Greene’s first three arguments.

Judicial review of zoning cases is limited. The party seeking to set aside a zoning board of adjustment’s decision has the burden to show that it is unlawful or unreasonable. In the trial court, the appealing party must demonstrate that an error of law was committed or persuade the court by the balance of probabilities that the board’s decision was unreasonable. We [798]*798will uphold the trial court’s decision unless it is not supported by the evidence or is legally erroneous. Fox v. Town of Greenland, 151 N.H. 600, 603 (2004).

Greene first argues that the ZBA lacked subject matter jurisdiction to hear the residents’ appeals of the selectmen’s March 2002 decision to grant him a junkyard license and September 2002 decision not to revoke that license. The ZBA determined that it had jurisdiction pursuant to RSA 676:5 (1996). Greene contends that the appeals should instead have been governed by RSA 236:121 (1993), RSA 236:123 (1993), or RSA 236:129 (1993). We disagree.

We are the final arbiter of the meaning of a statute as expressed in the words of the statute itself. When construing the meaning of a statute, we first examine its language and, where possible, ascribe the plain and ordinary meanings to words used. When the language used in the statute is clear and unambiguous, its meaning is not subject to modification by judicial construction. In re Sandra H., 150 N.H. 634, 641 (2004).

RSA 236:121 provides recourse to the superior court for a licensee whose application for a junkyard license is denied, not for persons other than the licensee who are affected by the denial or granting of a license. Therefore, it did not address the residents’ appeals. RSA 236:123 provides recourse to the superior court for any citizen who wishes to contest fencing for a new junkyard. The residents’ appeals did not concern fencing.

RSA 236:129 provides recourse to the superior court in the form of injunctive relief to “[a]ny person owning real property whose property is directly affected by the site of a junk yard ... maintained in violation” of the Motor Vehicle Recycling Yards and Junk Yards subdivision, RSA 236:111-:129 (1993 & Supp. 2004). However, RSA 236:124 provides that the “subdivision is not in derogation of zoning ordinances or ordinances for the control of junk yards ... but rather is in aid thereof. Specific local ordinances shall control when in conflict with this subdivision.” The residents were not seeking an injunction for Greene’s violation of a provision of the subdivision; rather, they sought review of the selectmen’s interpretation of zoning ordinances in the decision to reissue Greene’s license. Therefore, RSA 236:129 did not address the residents’ appeals.

Instead, as the ZBA and trial court correctly determined, RSA 676:5 addressed the residents’ appeals. RSA 676:5, I, provides, “Appeals to the board of adjustment concerning any matter within the board’s powers as set forth in RSA 674:33 may be taken by any person aggrieved ... by any decision of the administrative officer.” RSA 674:33, 1(a) (1996) provides [799]*799that the zoning board of adjustment has the power to “[h]ear and decide appeals if it is alleged there is an error in any ... decision ... made by an administrative officer in the enforcement of any zoning ordinance adopted pursuant to RSA 674:16____” RSA 676:5,11(a) defines an “Administrative Officer” as any “board who... has responsibility ... for enforcing the ordinance, and may include a ... board of selectmen.” RSA 676:5, 11(b) provides that a “decision of the administrative officer” includes “any decision involving construction, interpretation or application of the terms of the ordinance.”

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Bluebook (online)
868 A.2d 986, 151 N.H. 795, 2005 N.H. LEXIS 36, Counsel Stack Legal Research, https://law.counselstack.com/opinion/greene-v-town-of-deering-nh-2005.