Posted by: Patricia Salkin | November 18, 2015

NH Supreme Court Finds Amendment to Zoning Fines and Penalties Statute Applied Retroactively

Defendant, Edward C. Furlong, III, appealed an order of the Circuit Court awarding judgment in favor of the plaintiff, the Town of Bartlett, in a zoning enforcement action. The defendant owned property in Bartlett, on which he began to renovate in the fall of 2008. The Bartlett Board of Selectmen notified him: by letter, by cease and desist notice, and in person at a board of selectmen meeting, that he needed a building permit for the renovations. The cease and desist notice informed the defendant that he had violated Bartlett’s zoning ordinance, that he must cease all construction, and that he had the right to appeal to the Bartlett Zoning Board of Adjustment. The defendant submitted two incomplete applications for a building permit and completed the renovation work without a permit. On December 12, 2008, the Board of Selectmen filed a land use citation complaint in the district court, which advised the defendant that he could be fined $275 for the first day and $550 for every day the violation continued. The defendant filed a motion to dismiss, and the trial court dismissed the land use citation, finding that the zoning ordinance was unconstitutional. The Town appealed, the court reversed the trial court’s decision in part, vacated it in part, and remanded the case to the trial court. 

The defendant argued that the fine should be reversed because the trial court did not have jurisdiction to impose a penalty greater than $25,000, and that the court denied him due process of law by not granting a new hearing in light of the withdrawal of his attorney. The Town responds that the trial court did grant the defendant another hearing after his attorney withdrew, which the defendant did not attend, and that it was within the court’s discretion not to grant a third hearing. The court found that in this civil proceeding, the defendant had no constitutional right to counsel. Here, the attorney withdrew well before the hearing, and the trial court could have determined that the defendant was aware of the withdrawal and had ample time to secure other counsel if he desired to do so. Furthermore, the defendant did not show that his case was prejudiced in any way. Therefore, there was no basis for upsetting the judgment of the court. 

The defendant next argued that the trial court erred by imposing a $344,025 fine pursuant to RSA 676:17. The Town responded that RSA 676:17 was amended shortly after the court’s ruling in Town of Amherst (which held that the district court lacked jurisdiction to impose a civil penalty in excess of $25,000), and that the amendment was not a substantive change in the law and therefore should be applied retrospectively to the instant case, which was filed before, but not decided until after, the effective date of the amendment. The state senate stated the purpose of the bill was to “clarifies that each day of a violation for a land use ordinance constitutes a separate offense. The reason this clarification is necessary is because of a recent New Hampshire Supreme Court decision which will keep many municipalities out of District Court….” Thus, the court found that the legislative history demonstrated that the amendment was intended to remedy a perceived defect in the law. 

The court found that the only consequence of the amendment was that the Town was relieved of the need to transfer to superior court if it wanted to collect more than $25,000. Because this expansion of the jurisdiction of the district court was remedial, the amendment could be applied to the instant case. Accordingly, the court held that the trial court did not exceed its authority when it imposed the penalty of $344,025 on the defendant. 

Town of Bartlett v Furlong, 2015 WL 5559856 (NH 9/22/2015)


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