This case started when the defendant, Furlong, failed to obtain a building permit before beginning renovations on his property. Ultimately, the Bartlett Select Board filed a land use citation complaint in the district court under RSA 676:17, I, seeking the permitted fine: $275 for the first day and $550 for every day thereafter that the violation continued. In total, the fine was over $300,000.
Although there was a somewhat complex procedural history and other issues were raised in the appeal, the pertinent issue was whether the court could retroactively apply a 2009 amendment to RSA 676:17, I to the defendant’s case. Originally, RSA 676:17, I stated that “each day that a violation continues shall constitute a separate violation.” The problem was that some fines may accumulate to total more than the district court’s jurisdictional amount of $25,000. Therefore, while most municipalities would enforce land use citations through district court rather than the superior court, the district court could not enforce fines totaling over $25,000. Such was the result in the case of Town of Amherst v. Gilroy, 157 N.H. 275 (2008).
Due to this inefficient result, the legislature amended the statute to state that “[e]ach day that a violation continues shall be a separate offense.” Now, because the amendment made each day is a separate offense, the fine for each day falls well below the district court’s jurisdictional amount, making the total, cumulative fine irrelevant and remedying the problem.
This amendment was passed in July 2009 and took effect on September 11, 2009; the land use citation in this case was filed on December 12, 2008. The question for the New Hampshire Supreme Court was whether the amendment could be applied retroactively, thus giving the district court jurisdiction to impose a total fine that well exceeded $25,000. If it could not applied retroactively, then the district court had no jurisdiction to enforce the total fine.
The court summarized the law relative to retroactive application of statutes. If the statute is merely remedial or procedural in nature, it may be applied to cases pending at the time of enactment. If the statute affects substantive rights, then it cannot be applied retroactively. The court determined that this statute was merely remedial by looking at the legislative history, which revealed intent to fix the issue so that municipalities would not be required to go to superior court to enforce larger fines. Moreover, even before the amendment, the town had the ability to enforce the defendant’s violation and obtain the same fine. The statutory amendment merely changed the forum within which the action must be brought. Therefore, the defendant’s substantive due process rights were not affected.