New Hampshire Municipal Association
New Hampshire Municipal Association

Court Update

Lack of RSA 236 Junkyard License Does Not Invalidate Nonconforming Use under Zoning Ordinance

Guy v. Town of Temple
No. 2007-784, 8/21/2008

A common problem for towns is the regulation of junkyards that were established before enactment of zoning and operated for many years without junkyard licenses. This case addresses issues concerning the interplay of junkyard licenses and the law of nonconforming uses.

RSA 236:111 et seq., “Motor Vehicle Recycling Yards and Junk Yards,” provides for two types of licensing from the board of selectmen. (See LGC publication, How to Regulate Junk & Junkyards.) Newly established junkyards require prior approval of location based on the likely impacts on surrounding property. RSA 236:118, :120. Junkyards established before the effective date of the statute are deemed approved as to location. RSA 236:125. All junkyards, however, are subject to an annual license that involves review of the ongoing operation. RSA 236:121-:123. A fundamental principle of zoning is that an existing use, including a junkyard, is exempt if the use was lawful when the zoning restriction was enacted. A valid nonconforming use, once established, remains exempt unless abandoned by the property owner.

Guy owns a junkyard in Temple that has operated since sometime in the 1960s. Zoning was adopted in 1972. In 1999 the zoning board of adjustment determined that Guy’s operation was a valid nonconforming use. Guy, however, never applied for a junkyard license until 2006. The board of selectmen denied the junkyard license and then issued a notice of zoning violation ordering Guy to cease operation on the grounds that he had forfeited nonconforming use status for failure to obtain a junkyard license and also had improperly expanded the junkyard. Guy appealed first to the ZBA, which agreed with the selectmen, and then to the superior court. The trial court went one step farther and ruled that the junkyard had never been a valid nonconforming use because it never had the required junkyard license, that is, it was not in lawful existence when zoning was enacted.

On appeal to the Supreme Court, Guy argued that the ZBA decision in 1999 was final and could not now be challenged. He also argued that a valid nonconforming use, once established, cannot be divested for failure to comply with a business licensing law. The Court reviewed numerous cases from other states holding that lack of a business license does not affect nonconforming use status. The Court quoted one of these cases with approval: “‘[T]he failure to obtain a license does not render the use unlawful in the sense intended by zoning ordinances which preserve existing lawful uses.’” The major exception to the rule is where a junkyard licensing regulation controls location of the junkyard “as a quasi-zoning ordinance.” In some cases in other states, lack of such a license for location has been held to preclude valid nonconforming use status when zoning is later enacted. Moreover, for the period after enactment of zoning, the Court stated that “it is at least conceivable that a licensing scheme could be so closely aligned with zoning regulations that failure to comply with its terms might rise to the level of an abandonment of a pre-existing nonconforming use.”

Turning to the issues posed by Guy, the Court first agreed that, whether or not Guy should have obtained junkyard licenses prior to 1999, the ZBA decision is final and cannot be reexamined at this point. As for the period since 1999, the Court noted that, since Guy’s junkyard predated licensing under RSA Chapter 236, it was exempt from licensing of its location. It was therefore unnecessary for the Court to decide whether failure to obtain approval of location would divest the junkyard of its nonconforming use status. The Court then held that failure to obtain the annual operating licenses did not forfeit the junkyard’s nonconforming use status. RSA Chapter 236 itself provides the remedies of fines and injunctive relief for failure to obtain these licenses. Finally the Court determined that the record was inadequate to resolve the issue of improper expansion of the junkyard and remanded that issue to the trial court.

This case indicates that lack of an annual junkyard operating license does not affect the valid nonconforming use status of a junkyard under zoning. On the other hand, when a junkyard is established after the effective date of the junkyard licensing statute and does not obtain a license approving its location, the junkyard may be ineligible for valid nonconforming use status. As with the Guy case, however, if a town has treated a junkyard as a valid nonconforming use for many years, it may not be possible to correct its status belatedly.

Please be advised that the foregoing case summary is based upon a Supreme Court slip opinion. Slip opinions are subject to change following motions for rehearing and/or motions for reconsideration. The Court may also modify the opinion without motion. The final version of the Court’s opinion is that which appears in the New Hampshire Reports.

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