Prompt Enforcement of Local Ordinances Regulating Junk and Hazardous Materials Is Best Way to Avoid Liability

Mailloux v. Town of Londonderry
Mailloux v. Town of Londonderry
No. 2003-790
Tuesday, December 28, 2004

Junkyards and hazardous waste are often recipes for trouble. Between 1988 and 2002, a citizen in the Town of Londonderry operated an illegal junkyard upon his own property, and eventually the operation spilled over to three acres of land owned by an abutter. The town became aware of the illegal operation in 1991, but delayed enforcement action because the junkyard operator advised that the property was contaminated with hazardous waste. Eventually, the town took title to the property by tax deed in 1999, but the junkyard continued in operation, and the citizen remained the occupant of the contaminated land.

In 2002, the abutter was ready to use his property for commercial purposes, and in the development process detected the encroachment of the waste. He first sought to acquire the entire contaminated junkyard property from the town, and assume responsibility to evict the junkyard operator and clean up the waste. When this negotiation failed, he sued the town for reimbursement of the cost of cleaning up the waste on his own property. At trial, the court awarded the abutter nearly $135,000 in damages from the town, even though the cost of removing only the hazardous waste itself was about $9,000. The theory used was the “strict liability” imposed by RSA 147-B:10, meaning that the owner of the junkyard property was liable for the cost of any release of hazardous waste into the surrounding environment, even though the town as property owner had done nothing to create, collect or release the waste. The town appealed.

The Supreme Court affirmed the decision of the trial court, finding that the town had waited too long to act after acquiring title by tax deed, and thus failed to protect itself under a provision of RSA 147-B designed to help innocent holders of title from liability for the cost of hazardous waste cleanup. Further, it rejected the town’s arguments that the abutting landowner had waited too long to advise the town of the encroachment, and had failed to reduce the damage by protecting his own property against the encroachment. The damage award was sustained, because the hazardous waste was mixed in with non-hazardous materials, and the abutter was required to build a road whose only function was to reach the contaminated site with the equipment needed to perform the cleanup.

The Court signaled that prompt enforcement of local ordinances regulating junk and hazardous materials was the best way for a municipality to avoid liability in such a situation. Also, the Court construed the statutory “safe harbor” provisions of RSA 147-B narrowly, and required strict adherence to the requirements of that statute. Thus, if a municipality finds itself with title to a contaminated parcel, or a parcel with unknown environmental issues, it would be well advised to act promptly to define the scope of the problem and act to resolve the issues presented.