New Hampshire Municipal Association
New Hampshire Municipal Association

Court Update

Municipalities Must Pay Defendant's Costs for Unsuccessful Zoning Enforcement Action

Portsmouth v. Boyle
No. 2009-544, 7/20/2010

This case grew out of a zoning enforcement action brought by the City against a commercial property owner for clear-cutting trees within a wetlands buffer zone. The City sought an injunction against clear-cutting along with civil penalties, attorney's fees, and costs under RSA 676:17. Ultimately, the property owner was successful in defending the case.

In the current case, the property owners asked the superior court to order the City to pay the property owner's costs of defending the original case. The request was made under Superior Court Rule 87(a), which provides that "costs shall be allowed as of course to the prevailing party as provided by these rules, unless the Court otherwise directs." This is the general rule for most litigation in New Hampshire.

The City argued that Rule 87(a) does not apply when a municipality is acting in its enforcement capacity under a zoning ordinance. Specifically, the City argued that, while RSA 676:17 (the statute under which it brought the enforcement action) explicitly enables municipalities to recover its costs for zoning enforcement actions, it does not include authorization for the award of costs to any other prevailing party. In contrast, several other zoning litigation statutes (RSA 676:17-a for district court enforcement, RSA 677:14 for appeals of ZBA decisions, and RSA 677:15 for appeals of planning board decisions) do provide that these other parties may recover costs from the municipality, but only when the municipality acts in bad faith. The City argued that if the legislature had intended for private parties to recover costs for enforcement actions under RSA 676:17, it could have said so. Furthermore, the City noted that if municipalities were required to pay costs even when they have acted in good faith, it would have a chilling effect on municipal efforts to protect the environment.

The Court did not agree. Instead, it decided that while a finding of bad faith would be required to award costs under other statutes because those statutes say so, silence in the law in this case meant that the legislature had intended for Rule 87(a) to apply to enforcement actions under RSA 676:17, so that private parties may recover costs from a municipality even without a finding of bad faith. Unfortunately, this appears to mean that a municipality that exercises its enforcement authority under RSA 676:17 must be prepared to pay costs to the defendant if the municipality ultimately loses the case. This may, indeed, have a "chilling effect" upon enforcement.

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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