New Hampshire Municipal Association
New Hampshire Municipal Association

Court Update

Municipal zoning still applies to State-permit exempt excavations

Carroll v. Rines
No. 2011-776, 1/30/2013

This opinion is the third in a line of cases involving local regulation of excavation.  The first case was Arthur Whitcomb, Inc. v. Carroll, 141 N.H. 402 (1996), in which the Court found municipalities may not impose operational and reclamation standards more stringent than the “express” standards in the statute for excavations which are exempt from the state permit requirement in RSA Chapter 155-E.  The second case was Guildhall Sand & Gravel, LLC v. Goshen, 155 N.H. 762 (2007), in which the Court confirmed that municipal regulations for operation and reclamation may be more stringent than RSA Chapter 155-E for excavations that do require a permit.
 
This third case clears up some confusion generated by a broad statement included in the Guildhall opinion that any ordinance purporting to regulate permit-exempt excavations would be preempted.  (Please note that this opinion was originally issued on November 9, 2012, was withdrawn by the Court shortly thereafter, and was reissued in its current form on January 30, 2013).
 
“Preemption” occurs when one level of government prevents a lower level of government from regulating a particular subject area.  In the relationship between the State and municipalities, State law preempts local regulation when there is an actual conflict between the two.  This may be done expressly by a statute which prohibits local regulation of a specific issue.  Alternatively, a court may find that preemption is implied by a state statute or regulatory scheme.  This case deals with implied preemption.
 
Implied preemption may be found by a court when the comprehensiveness and detail of the State statutory scheme demonstrates the legislature’s intent to supercede local regulation.  In addition, “a conflict exists when a municipal ordinance or regulation permits that which a State statute prohibits or vice versa.”  North County Environmental Services v. Bethlehem, 150 N.H. 606, 611 (2004).
 
The plaintiff here operated four different excavation sites over several years, for two different purposes: constructing a highway, and excavation incidental to constructing a building.  RSA 155-E requires excavation operators to obtain a permit through the local regulator (usually the Planning Board), but exempts certain categories of excavations from the permitting requirement.  The two types of excavation engaged in by this plaintiff are among those exempt categories.  RSA 155-E:2; RSA 155-E:2-a.  Thus, the operator did not require any permit at all under RSA Chapter 155-E for the excavations.  The Town claimed that the operator still required a variance from the Zoning Board of Adjustment because excavation was not permitted in that zone under the local zoning ordinance.
 
Interestingly, the plaintiff first argued that no variance was required because the zoning ordinance did not say it was.  The Court dispatched this argument quickly, noting that the zoning ordinance is “permissive,” meaning that it is intended to prohibit all uses except those expressly permitted or incidental to uses so permitted.  In other words, unless the ordinance says a use is allowed in a certain zone, it isn’t.  The only way to use property in a way that violates the zoning ordinance is to obtain a variance from the Zoning Board of Adjustment.  Therefore, while excavation incidental to constructing a building was permitted as “incidental to” the permitted building, excavation related to a highway was not permitted at all in that zone and required a variance.
 
Moving on to the preemption issue, the Court looked to RSA 155-E:2, IV, which states in part “…such excavation [performed exclusively for certain highway purposes] shall not be exempt from local zoning or other applicable ordinances…” unless an exemption is granted by the State Department of Transportation.  In other words, while municipalities cannot alter the operational and reclamation standards for those types of excavations from what is set forth in the statute, other local regulations applicable to highway excavation is not preempted unless an exemption from those regulations is granted.
 
This is good news, indeed, for municipalities whose local zoning regulates highway-related excavation.  A zoning ordinance may prohibit excavation in certain zones, and a variance may be required for the excavation even if a permit under RSA 155-E is not.  It is consistent as well with the opinion in Arthur Whitcomb, Inc. v. Carroll, which held that towns and cities may impose regulations that do not frustrate the State’s purpose, such as traffic and roads, landscaping and building specifications, snow, garbage and sewage removal, signs and other related subjects.

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