On two lots on opposite sides of Roller Coaster Road in Laconia, Robert Kjellander stores property that the City of Laconia had defined as “scrap” and “junk.” On the property were over 50 motor vehicles, over 30 boats, farm equipment, a coal stove, trailers of wood, and “vegetation growing in and around” other belongings. The City determined this was a nonconforming “junkyard,” which was not allowed in the district according to the Laconia zoning ordinance. Beginning in 2004, the city sent at least ten notices to Kjellander informing him that his use of the property as a junkyard was a violation, but he never cured the violation. The ordinance defines a junkyard as follows:
Any business or any place of storage or deposit, whether in connection with another business or not, which has stored or deposited at the business or place: two or more unregistered motor vehicles which are no longer intended or in condition for legal use on the public highways; used parts of motor vehicles or old iron; metal, glass, paper, cordage, or other waste or discarded or secondhand material which has been a part, or is intended to be a part, of any motor vehicle, the sum of which parts or material shall be equal in bulk to two or more motor vehicles; or scrap, waste, reclaimable material or debris, whether or not stored, for sale or in the process of being dismantled, destroyed, processed, salvaged, stored, baled, disposed or other use or disposition.
Under RSA 676:15, the city brought action in Superior Court in 2019 seeking an injunctive order compelling the defendant to cure the zoning violation. The court ruled for the city, granting a preliminary injunction ordering Kjellander to “cease adding items or material of any sort to contribute to the junkyard conditions on the property” or obtain a variance from the Laconia Zoning Board of Adjustment to legally operate a junkyard. In 2021, the Superior Court found at trial for the city. It said the use was an illegal junkyard as defined in the ordinance and awarded the City attorney’s fees and costs, as guaranteed by statute. Kjellander appealed to the Supreme Court.
Arguing that his own personal property and effects on his private property were not “scrap,” thereby making the use not a junkyard, the defendant said they were materials he would make personal use of “in due time,” including using iron in his blacksmithing and building a shack from the stored wood. He also said that while motor vehicles are commonly regarded as junkyards, his other materials were inconsistent with the definition of a junkyard. The Court disagreed, noting that the Laconia ordinance alludes to scrap as “used parts of motor vehicles or old iron” (emphasis added), indicating a broad reading of what can constitute scrap. As the Court only overturns trial court decisions based upon the interpretation of a statute or ordinance if there is an error in the law, it upheld the ruling that the use designation as junkyard was appropriate.
The defendant also argued that the trial court erred in its award of attorney’s fees to the City of Laconia. In New Hampshire, customarily, attorney’s fees can only be awarded if authorized by statute, which they are in this case.
In any legal action brought by a municipality to enforce, by way of injunctive relief as provided by RSA 676:15 or otherwise, any local ordinance, code or regulation adopted under this title, or to enforce any planning board, zoning board of adjustment or building code board of appeals decision made pursuant to this title, or to seek the payment of any fine levied under paragraph I, the municipality shall recover its costs and reasonable attorney’s fees actually expended in pursuing the legal action if it is found to be a prevailing party in the action. For the purposes of this paragraph, recoverable costs shall include all out-of-pocket expenses actually incurred, including but not limited to, inspection fees, expert fees and investigatory expenses.
RSA 676:17,II. A municipality can recover reasonable attorney’s fees and costs if the cause of action is to enforce by injunction a municipal ruling, ordinance, or similar. Again, the Supreme Court noted that it prefers to defer to the trial courts in determining the appropriateness of the award, writing “if there is some support in the record… we will uphold it” (emphasis added). The defendant’s principal argument was that the zoning determination was wrong, thus the fees should not have been awarded. As the Court had already ruled to uphold the use determination, this argument was unsuccessful. The defendant also argued that the statute ought only be applied to “any zoning or planning board issue,” but the Court held that the statute plainly includes enforcement of municipal ordinances.
The defendant also argued that there were possible unconstitutional takings and the attorney’s fees should be pro-rated based on the city not winning on all of its injunctive requests, because the city did not genuinely “prevail” for the same reason. Because these issues were “insufficiently briefed,” the Supreme Court did not consider those issues.