Land Use Violation Enforcement Costs Can Be Recovered

By Paul Sanderson, Esq.

Q. We have been dealing with a land use violation in our code enforcement department. We have alerted the owner to the problem, and have tried to resolve the issue by seeking his voluntary compliance. Unfortunately, the owner has ignored our letters and calls and we think that an action in court will be required. Is there any statute that describes how to seek enforcement in these cases?
The legislature has developed an enforcement procedure for land use violations, which is found at RSA 676. Section 17 describes the fines and penalties that may be imposed for violations of a zoning ordinance, building code or land use regulation. Section 17-a describes the process to enforce a “cease and desist" order, and Section 17-b describes a simplified summons and “plea by mail" procedure for infractions that the property owner does not wish to contest in court.

Q. Do we have to involve the municipal attorney in these court actions?
It depends upon the land use violation, and how the landowner is reacting to your enforcement efforts. If the matter is straightforward, and the evidence is clear, the statutes allow the building inspector or other authorized municipal official to file the action in either the local district court, or the county superior court, and appear before the judge to present testimony. If the matter is resolved using the “plea by mail" procedure, and the landowner does not contest the violation, it is possible that no person will need to appear in court at all.

If the violation is complex, or the landowner contests the finding, then assistance of the municipal attorney should be sought. In some cases, the municipality is seeking equitable relief in the form of an injunction. This means that the court is being asked to specifically order a person either to do something, or not to do something. The court will ask the municipality to provide very specific evidence in these cases, and may ask that a proposed order be filed as well. If this form of relief is requested, the municipal attorney should be consulted to assist in preparing the presentation and in drafting the proposed order. In any of these cases, the municipal attorney is in the best position to evaluate whether or not a local official is prepared to appear in court and resolve the matter without additional assistance.

Q. We don’t want to go through the time and expense of a legal action only to see the landowner end up with a minimal fine that doesn’t even cover our costs for attorney’s fees and the experts we need to prove the case. What can we expect for penalties if we are successful in court?
In the 2004 and 2006 sessions, the legislature amended RSA 676:17 to deal with these two specific issues.

Starting January 1, 2005, the district or superior court judge is required to award the municipality its costs and actual attorneys fees if the municipality is the prevailing party in an enforcement action. This includes all out of pocket expenses actually incurred, including but not limited to inspection fees, expert fees and investigatory expenses.

Starting January 1, 2007, the district or superior court judge is required to impose a civil penalty of $275 for the first offense and $550 for any subsequent offense for each day that the land use violation is found to continue after the conviction date or the date on which the violator received written notice of the violation from the municipality, whichever date is earlier. This change in the law removes the language “not to exceed" from the previous version of the statute, and removes any discretion the judge may have had to lower the amount of the daily civil penalty.

These changes are important, since the Supreme Court had previously held that the prior language of RSA 676:17 permitted a judge to use his or her discretion in determining the amount of the daily penalty. In City of Rochester v. Corpening, 153 N.H. 571 (2006), a two-day trial was held on an issue involving a junk yard some 18 months after the date of the initial violation notice. Although the trial court determined there was a violation, it awarded no civil penalties at all to the municipality, reasoning that the penalties would prevent the landowner from resolving the compliance issues. The Supreme Court affirmed that ruling as within the discretion of the trial court. As of January 1, 2007, that result will change.

These penalties may seem harsh in a particular case. However, the prospect of a harsh result may often assist the municipality and the landowner to reach a voluntary compliance plan that is fair and reasonable. Thus, municipalities should be sure that their notice letters to landowners refer to the new provisions in RSA 676:17, and provide clear notice that failure to attend to the violation could result in this significant civil penalty.