In 2008, the Supreme Court decision in Amherst v. Gilroy gave municipal enforcement officials reasons to think twice about bringing enforcement actions in district court. 57 N.H. 275 (2008). The opinion in State v. Bilc provides even more information to guide enforcement actions.
The defendant was charged in district court with two offenses, both being Class A misdemeanors. Following a bench trial, the defendant was found guilty, and fined a total of $430.00 on each charge. As permitted by New Hampshire’s two-tier system for the trial of such misdemeanors, the defendant appealed the convictions to the Superior Court, seeking a jury trial on both charges. At the Superior Court level, such a trial is de novo, meaning that the matter commences from the beginning, as though the trial in district court had not occurred. The Superior Court remanded the cases to the district court, finding that due to RSA 625:9, VIII, the imposition of a fine of less than $1,200.00 operated by law to convert the convictions to Class B misdemeanors. Since there is no possibility of incarceration for conviction of a Class B misdemeanor, the court reasoned that a jury trial was, as a matter of law, unavailable. The defendant appealed, arguing that the right to trial by jury is guaranteed by both the state and federal constitutions, and that the operation of the statute deprived him of this constitutional right.
On appeal, the Supreme Court agreed, finding that “…the severity of the penalty authorized, not the one actually imposed, is the relevant measure.” Under the state constitution, the right to a jury trial is guaranteed to all defendants facing the possibility of incarceration. Opinion of the Justices (DWI Jury Trials), 135 N.H. 538 (1992).
For municipal officials who are contemplating enforcement of a land use code, regulation or condition of approval in the district court pursuant to RSA 676:17, I, such actions may well be Class A misdemeanors, since a crime designated a misdemeanor without classification is made Class A by RSA 625:9, IV(a)(2). Thus, following a conviction for the land use offense in the district court, a landowner could elect to appeal to the superior court and request a jury trial. This possibility could significantly increase the cost of the enforcement action, and could increase the amount of time required to resolve the dispute. It is possible to avoid this result by charging the landowner’s conduct as a “violation” per RSA 676:17, V, but this has an impact on the range of remedies available to the district court in the case. Therefore, any proposed enforcement action should be carefully reviewed with town counsel to consider whether commencement of the action in the district court is in the best interest of the municipality.