By Paul G. Sanderson, Esq.
New Hampshire Local Government Center (LGC) Legal Affairs and Government Services attorneys have received many questions from local officials about the regulation of junk. These officials are attempting to prevent harm to persons and the environment while fairly and effectively responding to citizen complaints. The issue is complex, and municipalities must deal with accumulations as small as an individual property owner with unsightly piles in the yard to large commercial junkyard operations that are many acres in size. Our research into these issues has resulted in a new publication titled, How to Regulate Junk and Junkyards: A Guide for Local Officials.
The term “junk" is not well defined, because virtually anything can be accumulated into an unsightly pile. “Junk" is not “solid waste", because the person who owns it has a hope to either sell the material or reuse it at some time in the future. “Junk" regulations are intended to preserve public safety by preventing a fire; to protect public health by preventing the spread of disease; or to serve the general welfare by preventing harm to the environment.
State agencies are concerned with the issue as well. The state Department of Labor is concerned with the safety of workers who process this material. The Department of Safety is concerned with title to motor vehicles and the prevention of theft. The Department of Transportation must license junkyards that are near certain federally assisted highways to protect and beautify highways. The Department of Health and Human Services is concerned with public health and the prevention of disease. LGC staff attorneys recently participated in a series of workshops sponsored by the New Hampshire Department of Environmental Services (DES) that focused upon the DES Green Yards program, which provides assistance to motor vehicle recycling yards and training in the “best management practices" for processing end-of-life vehicles. Their concern is the promotion of recycling and the prevention of harm to air, water and land resources. Each of the state agencies has a federal counterpart agency concerned with the same issues from the perspective of federal law.
The Licensing Obligation
Since 1965, all municipalities in New Hampshire have had the responsibility to license junkyards at the local level. This responsibility is contained in RSA Chapter 236 sections 111 through 129. It applies to all municipalities, whether or not there is a local zoning ordinance. There is a local licensing obligation even if the state Department of Transportation has issued a license to the junkyard facility. The license is issued by the governing body as of April 1, and is only effective until the next April 1. The licensing obligation is important, because pursuant to RSA 236:119, any unlicensed junkyard location is declared to be a nuisance, which may be the subject of an enforcement action.
The obligation to license is broad. The landowner does not need to be involved in a commercial operation, or even intend to sell the material. If the material is a motor vehicle or auto parts, an accumulation amounting to two or more vehicles is enough to require a license. Under state statute, it no longer matters whether the vehicles are registered; they become “junk" if they are no longer intended for operation on the highways. There are special rules for antique restorations and for motor vehicle dealers. If the accumulation is machinery, an area exposed to public view greater than 500 square feet triggers the licensing obligation. Thus, the licensing statute applies to many “junky yards" as well as to persons who are in the business of buying and selling scrap materials.
A new license can only be granted following a hearing before the governing body. An existing location may have its license renewed without a hearing if there have been no violations of statute, or failure to comply with conditions during the license period. The governing body must determine if the location complies with local zoning requirements by receiving a “certificate of location approval" from the zoning board of adjustment, and must also assure that the yard is located at least 300 feet from the right of way of a Class V highway. Locations in operation in 1965 have special protections as to location. The statute requires junkyards to be fenced. In addition to licensing the junkyard, the governing body may also have an obligation to license the junk dealer pursuant to RSA Chapter 322. This is an old statute that is primarily directed at the prevention of crime by denying a license to any person previously convicted of receiving stolen property.
Other Local Regulations
Beyond the governing body, other local officials have a role in the regulation of junk. The building inspector or other zoning official involved in administration of the local zoning ordinance will determine whether the accumulation of the material or the operation of the commercial junk operation is allowed in the specific zone where the land is located. If the accumulation is located in a hazardous or dilapidated building, the building inspector may proceed to the local district court to seek an order to repair or demolish the structure.
The police chief will be involved in determining whether or not a junkyard operator or a junk dealer has a criminal record that would prevent the issuance of a the local license. The fire chief has authority to deal with accumulations that pose a risk of fire. The health officer, together with the governing body as the local board of health, has authority to deal with accumulations that risk fostering the spread of disease, either directly or as a result of attracting vermin.
The local legislative body has the authority to adopt local ordinances to regulate the accumulation of waste materials, either directly or as part of the zoning and land use ordinances.
It often seems to take forever for a public entity to deal with unsightly accumulations, and certainly prosecution of civil or criminal matters in court are time consuming. There are, however, many different approaches to this issue. For the municipality, the first task following receipt of a complaint is to investigate the facts, and make a determination as to what laws or regulations have been violated.
The investigation will involve a trip to the land in question. The owner may allow an inspection by consent, but if entry is denied local officials have the ability to seek either a criminal search warrant or an administrative inspection warrant from a court. With the warrant, the officials may enter the property, inspect the material, and even take samples of soil or water for testing. The visit should be well documented, and pictures often are very helpful to explain the violation to a court.
It is possible that the violation is of a private land restriction, such as protective covenants in a subdivision. In this case, the municipality should not allow itself to be drawn into a civil dispute between landowners. If there is a violation of a public law, ordinance or regulation, it may be possible to resolve the issue with the landowner by seeking voluntary compliance. The owner may not know of the regulation, or may not realize that a neighbor has been offended, and may be willing to correct the issue within a reasonable time. If voluntary compliance is not forthcoming, or is not possible, further action may be needed.
It is easy for an individual official to feel isolated or overwhelmed by a pending enforcement action. The complaining citizen wants action, but the landowner has a right to be treated fairly and neutrally in the context of the legal action. Often a single official proceeds with the action in a district court, when there are other viable theories to support the action. Therefore, we suggest that local enforcement decisions be made using the collective skills of all local officials. Local officials may also partner with state or federal agency staff in an effort to obtain technical assistance, or assistance in formulating a remedy that is within their administrative jurisdiction.
The legislature has provided a range of remedial options for use in these cases. In most instances, assistance should be sought from the municipal attorney before commencing a court proceeding. Under the local licensing statute, RSA Chapter 236 sections 127-129, the governing body may chose to bring the offender before a district court and charge a “violation." This permits the local judge to impose a fine of up to $1,000. Alternatively, the governing body may impose a civil penalty of up to $50 per day upon unlicensed junkyard locations, which may be enforced in the district court.
Under the land use penalty statutes, if the matter is treated as a zoning violation, a civil penalty of $275 per day for a first offense may be imposed, which rises to $550 per day for subsequent offenses. In this type of proceeding, attorneys fees may also be recoverable. Any of the “violation" or “penalty" statutes use monetary fines as the tool to make continuation of the junkyard expensive or unprofitable. Because each day is a separate offense, the financial implications of delay may be large. However, this type of remedy may be ineffective in cases where the landowner has no desire to sell the material, or whose economic circumstances make the actual payment of money unlikely.
Under both the licensing statute and the land use penalty statutes, a municipality may seek injunctive relief in the superior court. This type of remedy targets the behavior of the person, who may be ordered to take or not to take certain actions upon penalty of incarceration. This is a very powerful tool, and the courts themselves term it to be an “extraordinary remedy", which is not to be granted lightly.
If the local governing body does not deal with complaints arising from either junkyards or the “junky yard", either the attorney general or affected private citizens may proceed to the superior court and seek injunctive relief. For local officials, they may find themselves in court as the defendant rather than the plaintiff, and may find themselves ordered to take actions when it is the offending landowner who has created the harm to the neighboring properties.
In sum, while no one wants to look at unsightly accumulations of discarded things, junkyards and motor vehicle recycling facilities perform a valuable service by reusing and recycling this property. At times, it is difficult to strike a balance between aesthetics and business, but when the facility is operated in a manner that risks harm to others by means of fire, disease or environmental contamination, public officials must act to prevent the harm. The governing body, acting upon the advice of the municipal attorney, will decide which type of relief to seek. Generally, an unsightly accumulation may warrant a land use violation or a fine, but if the material has the potential to harm persons or property, injunctive relief is sought to control the behavior and compel quick response to the danger.
Paul Sanderson is Staff Attorney with LGC’s Legal Services and Government Affairs Department.< Back to Town And City Home