New Hampshire Municipal Association
New Hampshire Municipal Association

Court Update

Court Overturns ZBA's Interpretation of Junkyard Ordinance

47 Residents of Deering, N.H. v. Town of Deering; Carroll Greene v. Town of Deering
No. 2004-256, 3/3/2005

In March 2001, the Town of Deering enacted a zoning ordinance that included provisions regarding licensing of junkyards. Commercial junkyards “lawfully existing” on the effective date of the ordinance could be licensed by the board of selectmen upon application. However, junkyards “not legally operating” on the effective date of the ordinance could be licensed by the selectmen upon application after receiving recommendation from the planning board and the conservation commission.

The ordinance also provided that junkyard licenses expire on March 31 of each year and could be renewed without a hearing if all provisions of the ordinance and of RSA 236:111, et. seq. “have been complied with during the license period.”

Carroll Greene operated an existing junkyard, and he applied for a license to continue its operation. The selectmen granted the license on March 30, 2001, stating that Mr. Greene's use was “grandfathered.” They renewed the license on March 29, 2002.

A group of town residents expressed concern about the license renewal. In response, the selectmen held a hearing on the license and, on September 18, 2002, they decided not to revoke it. On November 7, 2002 the group of residents, calling themselves 47 Residents of Deering, N.H., then appealed all three of the selectmen's decisions—the grant of the March 2001 and March 2002 licenses and the September 2002 decision not to revoke the license—to the zoning board of adjustment as an appeal of an administrative decision under RSA 676:5.

The ZBA declined to consider the appeal of the selectmen's March 2001 license decision because that license had expired and was therefore moot. However, the ZBA accepted both the March 2002 license decision and the September 2002 decision not to revoke the license. The ZBA overturned the selectmen's decision to renew Greene's license and found that Greene had increased his junkyard inventory in violation of the aquifer protection ordinance prohibiting expansion of certain nonconforming uses, including junkyards. This unlawful expansion of a nonconforming use occurred before the junkyard ordinance was enacted, according to the ZBA, and, therefore, the junkyard was not “lawfully existing” at the time the ordinance became effective. The ZBA ruled that the selectmen could not issue Greene a junkyard license until he complied with the additional provisions of the junkyard ordinance, which required recommendations from the planning board and conservation commission.

Greene appealed the ZBA decision to the superior court, which upheld the ZBA. Greene then appealed to the Supreme Court, arguing: 1) that the ZBA did not have subject matter jurisdiction to hear the appeal of the administrative decision; 2) that the ZBA did not have authority to waive the 30-day deadline for filing appeals of administrative decisions; and 3) that the superior court erred in ruling that the junkyard ordinance required the selectmen to determine whether or not a junkyard was “lawfully existing” on the effective date of the ordinance each time its license was up for renewal.

On the issue of the ZBA's jurisdiction to hear appeals regarding commercial junkyard licensing, Greene had argued that appeals should be governed by RSA 236:121, RSA 236:123 or RSA 236:129. The Court disagreed, noting that RSA 236:121 gives a licensee recourse to the superior court if his or her license is denied, not to other citizens objecting to the grant of a license. In addition, RSA 236:123 gives citizens recourse to the superior court to contest fencing for a new junkyard, but fencing issues were not involved in this case, and RSA 236:129 gives recourse to the superior court for injunctive relief for any citizen whose property is affected by a junkyard maintained in violation of the requirements of RSA Chapter 236. Furthermore, according to RSA 236:124, local ordinances and regulations control when in conflict with RSA Chapter 236, and RSA 676:5 grants authority to the ZBA to hear appeals of administrative decisions. Therefore, the Court held that these statutes, taken together, give the ZBA jurisdiction to hear appeals of selectmen's decisions involving interpretation of a zoning ordinance dealing with the licensing of junkyards.

On the issue of whether the ZBA had authority to waive its 30-day deadline for filing an appeal of an administrative decision, the Court noted that RSA 676:5, I requires an appeal to be taken “within a reasonable time, as provided by the rules of the board[.]” The rules of procedure adopted by the Deering ZBA require appeals to be filed within 30 days of the administrative decision. The decisions appealed were made by the selectmen on March 29, 2002 and September 18, 2002. The appeal was filed on November 7, 2002, and the ZBA voted to waive the 30-day deadline. The Court held that because the Deering ZBA rules of procedure includes a provision permitting the board, by at least three concurring votes, “to waive any provision of these rules not otherwise mandated by state or federal law or by town ordinance,” it had authority to determine that the appeals were timely filed. The Court noted that Greene had not argued that the appeals were not filed within a “reasonable time,” as required by RSA 676:5, I.

It was Greene's third argument—that the ZBA and the trial court had erroneously interpreted the zoning ordinance—upon which the Court overturned the ZBA's decision.

The ZBA interpreted the zoning ordinance to require the selectmen to make a determination at each annual renewal of a commercial junkyard license that the junkyard “lawfully existed” at the time the zoning ordinance was enacted. However, the ordinance provided, “Junkyard licenses shall be renewed without a hearing if all the provisions of this ordinance and RSA 236:111, et. seq . have been complied with during the license period.” The Court held that “during the license period” meant from the date the license was granted to the date it expired and did not include any use prior to the effective date of the ordinance. “For the selectmen to issue the March 2001 license, they had to determine that Greene had a lawfully existing use as of March 13, 2001. Once that determination was made on March 30, 2001, [the ordinance] did not require the selectmen to reconsider that determination when Greene sought to renew his license in 2002; rather, it only required an evaluation of Greene's use during the license period.”

The Court remanded other issues in the case to the superior court. Greene had sought a declaration as to the number of cars he could maintain on the lot and an injunction prohibiting the town from enforcing the ordinance against him. The trial court had determined these issues moot. Since the trial court's decision was reversed, the Court said, these issues might no longer be moot.

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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