NH Supreme Court Rules That State Law Preempts Municipal Restrictions on Excavation Permitting

On November 9, 2012, the New Hampshire Supreme Court issued its decision in Town of Carroll v. Rines (“Rines”), invalidating certain municipal regulations that limited excavations.
The respondent in Rines was the owner of two lots in Carroll, and he also controlled two additional lots for excavation purposes. The Town sought to prevent the owner from excavating on his four lots, asserting that he had failed to obtain a variance under the Town’s zoning ordinance, which regulates “Excavation of Earth Resources.” The owner nevertheless proceeded to excavate for highway purposes, and for purposes incidental to constructing a building. In response, the Town sought to impose civil penalties for violation of its zoning ordinance.

The Court in Rines sought to clarify some confusion that had arisen from its past cases interpreting NH RSA chapter 155-E, the state statute regulating local excavation. In Arthur Whitcomb, Inc. v. Town of Carroll, the Court had held that NH RSA chapter 155-E preempts “only local excavation ordinances and regulations that would have the effect or intent of frustrating State authority.” Recognizing that this provided localities little guidance, the Court went one step further in Guildhall Sand & Gravel v. Town of Goshen, and held that a local regulation frustrates state authority, and is preempted under NH RSA chapter 155-E, if the regulation imposes substantive requirements on excavation activities that are exempt from permitting at the state level under NH RSA chapter 155-E. Yet the question remained: what type of local regulation might fall under this seemingly vague classification, and thus be preempted?

Rines gives us our first answer. Both excavations for highway purposes and excavations incidental to building construction are exempt from permitting under NH RSA chapter 155-E. Section VI of the Town’s 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.” Because Section VI of the ordinance does not provide exceptions for excavations for highway purposes or for building construction, the Court held that Section VI imposes substantive requirements on permit exempt excavations, and thus all of Section VI is preempted by NH RSA chapter 155-E.

Thus, in the wake of Rines, any excavation activities that are permit exempt under NH RSA chapter 155-E may not be regulated locally. Going forward, local excavation regulations will need to provide exceptions for excavations that are permit exempt under NH RSA chapter 155-E. Should towns fail to provide such exceptions, an entire local excavation regulation may be invalidated.

If you have any questions about these recent changes in local excavation permitting, please do not hesitate to contact Mark Beliveau (603-373-2002 or mbeliveau@pierceatwood.com), Matt Manahan (207-791-1189 or mmanahan@pierceatwood.com), or John Formella (603-373-2010 or jformella@pierceatwood.com).

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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