New Hampshire Municipal Association
New Hampshire Municipal Association

Court Update

Zoning Enforcement: Town Entitled to Injunction and Award of Attorney’s Fees Against Business that Expanded Beyond Permissible Scope of Special Exception for Home Occupation

Christopher Bennett et al v. Town of Hampstead
No. 2007-662, 7/11/2008

In 1998, Mr. Bennett was granted a special exception to operate a landscaping and property maintenance business as a home occupation in a zone that prohibited commercial uses. By 2005, the business had grown substantially and exceeded the limits of the special exception by storing materials outside, failing to screen the materials from view, employing more persons than allowed, and storing heavy equipment on the site. The Town responded by issuing a cease and desist order that purported to revoke the special exception, ordered all aspects of the operation to cease, and offered an opportunity to seek further relief from the zoning board of adjustment. After meeting with Mr. Bennett, the town agreed to extend the date on which operations were to cease by 60 days.

In the interim period, the town attorney notified Mr. Bennett by letter of RSA 676:17, and the possibility of civil penalties and attorney’s fees. Mr. Bennett responded by filing a declaratory judgment action challenging the constitutionality of the actions taken. The Town responded by seeking injunctive relief to restrain the operation of the business and impose penalties pursuant to RSA 676:15 and :17.

The trial court granted both preliminary and final injunctive relief to the Town, but did not order the business to cease all operations. Instead, it ordered Mr. Bennett to return the business to the scope approved in the special exception. No civil penalties were awarded, and no attorney’s fees were awarded to either party. Both parties sought reconsideration, arguing that each was entitled to attorney’s fees. Mr. Bennett argued that he was forced to seek judicial intervention to prevent an unconstitutional taking of the rights he had secured in the original special exception, and was thus entitled to his attorney’s fees. The Town argued that the express language of RSA 676:17 entitled it to attorney’s fees if it was the prevailing party in an enforcement action under the statute. The trial court awarded fees to the Town, and denied fees to Mr. Bennett.

On appeal, the Supreme Court affirmed, finding that the legislature had, by amending RSA 676:17, removed discretion from the courts on the issue. Thus, any municipality which is the prevailing party in an enforcement action brought under RSA 676:15 and :17 is entitled to recover its costs and attorney fees. Mr. Bennett was not entitled to recover his fees from the town both because his motion was untimely and because his business never actually ceased operations, and he suffered no actual harm.

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