NH Supreme Court Finds State Law Preempts Town Local Law on Excavating

William Rines appealed from an order of the New Hampshire Superior Court enjoining him from excavating on real property until he obtained a local use variance from the Town of Carroll. The Supreme Court of New Hampshire reversed and remanded.

The Town sought to enjoin Rines, who owns two lots in Carroll and controls two other lots solely for excavation purposes, from excavating on all four lots. The two parties agreed to a stipulation pursuant to which, during the pendency of the lawsuit, Rines was prohibited from excavating unless he obtained a variance under Section VI of the Town’s zoning ordinance. After he entered into the stipulation, the respondent began removing material from the lots for use on highway projects. Several months after that, Rines began excavating again after he received planning board approval to subdivide two of the lots he owned. Eventually, the court denied Rines’ request for relief from the variance requirement.

At a subsequent court hearing, the issue was the extent to which Rines was required to obtain a variance in order to excavate. The court determined that during the time period from the stipulation to the court’s denial of relief, Rines excavated for highway purposes and to construct a building. The court concluded that both types of excavation were exempt from the permitting requirements of the Revised Statutes Annotated of New Hampshire (“RSA”) 155-E:2, but because Section VI was not preempted by RSA 155-E:2, Rines needed a variance in order to engage in either type of excavation.

On appeal, Rines argued that the court erred in finding that Section VI was not preempted by RSA 155-E:2 and that therefore he did not need a variance in order to excavate. In response, the Town of Carroll argued that the statute was impliedly preempted. A state law can impliedly preempt a local law if the statutory scheme evinces a legislative intent to supersede local legislation or if there is an actual conflict between the two or frustrates the state statute’s purpose.

The court noted that past cases have already settled that RSA 155-E does not preempt all local laws pertaining to excavation, and that 155-E establishes only minimum requirements for excavating, allowing municipalities to impose more stringent regulations upon the enumerated forms of excavations. Also, the court emphasized that 155–E does not authorize municipalities to burden permit-exempt excavations with their own substantive requirements. The court then looked to whether Section VI frustrates a state purpose or purports to regulate excavations that are permit-exempt under 155-E.

Section VI of the ordinance requires a variance for “excavation, grading, filling or removal of any earth, loam, topsoil, sand, gravel, clay or stone on public or private land in the Town of Carroll.” This broad language did provide for any exceptions for excavations for highway or building construction purposes. By encompassing these two types of permit-exempt types of excavations under its broad umbrella, Section VI frustrated state authority and was determined to be preempted by RSA 155-E. As a result the court reversed and remanded.

Town of Carroll v. Rines, 2012 WL 5458213 (N.H. 11/9/2012).

The opinion can be accessed at: http://www.courts.state.nh.us/supreme/opinions/2012/2012113rines.pdf