Town of Amherst v. Rosemary A. Gilroy
No. 2006-694, 5/20/2008
Faced with a recalcitrant property owner who refused to abide by the town’s zoning ordinance and remove a non-conforming shed, the town followed conventional wisdom that filing an action in district court pursuant to RSA 676:17 is the fastest and most cost-effective avenue in this type of enforcement action. As this case illustrates, the district court may be neither the fastest nor most cost-effective way to proceed. The case will likely discourage municipalities from using the district court for future zoning enforcement actions.
RSA 676:17, I provides that “[a]ny person who violates any provision of … any local ordinance … adopted under this title … shall be guilty of a misdemeanor if a natural person … and shall be subject to a civil penalty of $275 for the first offense and $550 for subsequent offenses for each day that such violation is found to continue after the conviction date or after the date on which the violator receives written notice from the municipality that the violator is in violation, whichever is earlier.” A municipality may commence an action either in the district pursuant to RSA 502-A:11-a, or in the superior court. RSA 676:17, V.
The issue in this case is the jurisdictional limitation of the district court to impose a civil penalty. That limitation is $25,000. RSA 502-A:14, II. Here, the property owner was assessed a penalty totaling $42,350 – $275 dollars for each of 154 days of the violation. The town argued that this award did not exceed the $25,000 jurisdictional limitation of the district court because it was actually 154 separate awards in the amount of $275 each. In previous cases the Court has recognized that the district court can retain jurisdiction when the aggregate amount of damages exceeds $25,000. However, in those cases the statutes contained language specifying that each day that a violation continues shall constitute a separate violation or a separate offense. RSA 676:17 contains no such language. The Court observed that had the legislature intended RSA 676:17, I to have the same meaning as those statutes which make each day’s violation a separate offense, it could have said so. Since the legislation did not, the Court held that a continuing violation under RSA 676:17, I constitutes a single offense.
This case will no doubt affect the thinking of municipal enforcement officials with regard to the forum chosen to enforce zoning violations. A successful prosecution of a first offense under RSA 676:17, I in the district court will reach the jurisdictional limit of that court 90 days following the violator’s receipt of notice of the underlying violation. If a subsequent offense is alleged, a successful prosecution will reach jurisdictional limit of the court for such penalties in only 45 days. If the municipality elects to work with the violator toward voluntary compliance, court process is usually not filed on the date that the violator receives notice of the violation from the municipality. Thus, all the days that the municipality uses to attempt to resolve the problem short of litigation will count against its ability to recover civil penalties if enforcement in court is ultimately sought. If faced with a violator who consistently refuses to make needed changes to come into compliance with the zoning ordinance, a municipality may be well-advised to bring enforcement action in the superior court where injunctive relief is available and the jurisdictional limitation of $25,000 does not apply.
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.< Back to Court Update Home