The plaintiff owns a commercial excavation business which has been in operation since the 1950’s. In 2004, an excavation permit was issued for a period of three years. Subsequently, the town enacted new excavation regulations, and the plaintiff sought a declaratory judgment that the new regulations were preempted by RSA 155-E, and thus unenforceable at its facility. At trial, the Superior Court found that argument persuasive as to three of the 21 provisions in the ordinance, and declined to rule on the remainder.
On appeal, the Supreme Court reversed. After examining the legislative history, the court concluded that some types of excavations, such as stationary manufacturing plants, do not require a local permit under RSA 155-E. For these operations, the standards contained in RSA 155-Eprovide the controlling specifications for the operation, and no local ordinance may contradict or impose a more restrictive standard. However, as to all other excavations, a local permit is required, and the statute authorizes local regulators to create their own regulations, provided they are at least as stringent as the minimum standards contained in the statute. In such a case, there is no preemption, and the operator of the excavation must follow either the RSA 155-Estandard, or the local standard, whichever is stricter.
For those municipalities having excavation activities within their borders, this is an important clarification of the extent of their authority to regulate these locations. Usually it is the local planning board that serves as the “regulator.” These boards should not carefully review the excavation sections of the local zoning ordinance to assure that the standards of operation are appropriate for the regulated locations. If there is reason to be more stringent than the minimum standards of RSA 155-E, such regulations may be enacted and enforced.