Richard Townsend owned a parcel of land that housed a barn and ten motor home hook-up sites. While awaiting the repair of his damaged motor home, Townsend’s lived temporarily in the barn. The Town of Barrington, New Hampshire notified Townsend that he was in violation of the Zoning Ordinance by living in his barn and allowing motor homes to hook up to and stay on his property. The Town then filed suit and moved for summary judgment. The trial court granted summary judgment and awarded attorney’s fees, but would not impose a civil penalty. Townsend appealed, and the Supreme Court of New Hampshire affirmed.
Townsend raised numerous grounds challenging the grant of summary judgment. First, the court addressed Townsend’s claim that the use of his property did not become a non-residential use, requiring site plan approval, when he added hook-ups to his property to accommodate guests and their motor homes. The pivotal issue was whether the addition of the hook-ups was a non-residential use. Since the Zoning Ordinance did not provide a definition for a non-residential use, the court had to fashion their own. The court stated that a residential use is a “dwelling place, abode, or habitation to which one intends to return as distinguished from a place of temporary sojourn or transient visit.” The court determined that these sites were used by nonresidents as “a place of temporary sojourn or transient visit,” and, thus, the sites should be characterized as non-residential. In support of this finding, the Zoning Ordinance provides that recreational vehicles, which are defined as including motor homes, cannot be used as residences.
Next, the court addressed Townsend’s assertion that the trial court erred in enjoining Townsend’s use of his barn as a dwelling without a certificate of occupancy. Townsend claimed that an injunction was improper because he had voluntarily moved out of the barn once he had been served with a cease and desist order. In addition, Townsend claimed the trial court erred in finding that Townsend continued to reside in the barn. The Town contended that the injunction was appropriate because injunctions can be levied to protect against future conduct where there is a “cognizable danger of recurrent violations.” The Town alleged this danger existed, as testimony and photographs illustrated that the barn was a fully equipped dwelling unit. The Town also argued that even if the trial court erred in finding Townsend continued to reside in the barn, this was a harmless error as Townsend admitted to the prior use of the barn as a dwelling and continued to use the barn as an office without a certificate of occupancy. The court found no error in the grant of the injunction, as the prior use of the barn as a residence and the continued use as an office without a certificate of occupancy were sufficient grounds to support the injunction.
The court then addressed Townsend’s challenge to the grant of attorney’s fees. The court provided that an award of attorney’s fees will only be disturbed where there is an abuse of discretion. Townsend’s first ground for reversal was denied, as Townsend had claimed that since summary judgment was improper, the fees were as well.
Next, Townsend argued that even if the fees could be awarded, the court failed to analyze the reasonableness of the fees claimed. New Hampshire law provides that where a municipality brings an action to enforce zoning regulations and prevails, the municipality can recover reasonable attorney’s fees. The Town’s attorney submitted invoices that reflected the amount of time spent on the action, but the invoice did not specify the amount of time spent on each claim. The attorney stated that well over fifty percent of the time billed was spent on the two causes of action resolved by summary judgment. The trial court awarded attorney’s fees based on fifty percent of the fees charged in the invoices. The supreme court affirmed, finding it was within the trial court’s discretion to accept the attorney’s estimate of the time spent on the different claims. In addition, even without accepting the attorney’s estimate, given the trial court’s familiarity with the case, it was within the trial court’s discretion to find the time spent by the Town’s attorney reasonable. The supreme court also found no error in the trial court’s failure to analyze the reasonableness of the attorney’s hourly wage, as this factor is not determinative.
Town of Barrington v. Townsend, 2012 WL 4874321 (N.H., 10/16/2012).
The opinion can be accessed here.