NH Supreme Court Upholds Finding Regarding Use of Property as a Junk Yard

This post was authored by Michael Eisenberg, Touro Law Center

The defendant owned four lots containing personal belongings including scrap metal and automotive parts for personal use. These items were kept outdoors and in sheds in a dilapidated condition. The defendant had neither obtained a license to operate a junk yard nor a special exception from the town. The town sought injunctive relief to stop the defendant from operating a junk yard and the further imposition of civil penalties and the award of costs and attorney’s fees. The trial court found that the defendant was indeed operating or maintaining a junk yard in violation of RSA 236:114 and that his properties were a nuisance. The defendant was ordered to abate the nuisance. The court authorized the town to impose a civil penalty of $50 for every day the defendant remained out of compliance past a determined date. However, the trial court disregarded the town’s petition to enforce the local zoning ordinance, reasoning that the defendant must sell junk in order to qualify as “operating” a junk yard under the zoning ordinance and that the materials were exclusively for the defendant’s personal use.

The trial court’s statutory and zoning ordinance interpretation were each reviewed de novo. The defendant argued on appeal that the trial court erred as a matter of law when applying RSA 236:111-:129 to the defendant’s four non-business personal properties and indiscriminately constituting each as a junk yard notwithstanding placement of items on each property. The court upheld the trial’s court finding based on ample evidence in the record as to the distribution of junk on the respective properties. So too, under RSA 236:112, a junk yard need not be a place of business per se, but may be any “place” used to store junk. The defendant also argued that the subject parcels of land are within New Hampshire’s limited access highway system for I-93, and thus, RSA 236:90-:110 would be the “correct” statutory subdivision to apply. However, the court affirmed that the provisions of RSA 236:111-:129 apply to all junk yards, including those subject to regulation under RSA 236:90-110. The court upheld the trial court’s finding that the zoning ordinance regulates “junk yards” as an “industrial use.” The storage of one’s own personal belongings on one’s own property is not an “industrial use.”

Lincoln v Chenard, 2022 WL 166066 (NH 1/19/2022)