Lake Forest R v. Resort, Inc. v. Town of Wakefield & a.

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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Carroll
No. 2015-0205

LAKE FOREST R.V. RESORT, INC.

v.

TOWN OF WAKEFIELD & a.

Argued: February 10, 2016
Opinion Issued: August 23, 2016

Cooper Cargill Chant, P.A., of North Conway (Christopher T. Meier on the
brief and orally), for the plaintiff.

Sager & Haskell, PLLC, of Ossipee (Richard D. Sager on the brief and
orally), for the defendants.

CONBOY, J. The plaintiff, Lake Forest R.V. Resort, Inc., appeals from an
order of the Superior Court (Houran, J.) ruling that RSA chapter 216-I (2011 &
Supp. 2015), entitled “Recreational Campgrounds and Camping Parks,” applies
in this case. The plaintiff also appeals from an order of the Superior Court
(Garfunkel, J.) ruling in favor of the defendants, Town of Wakefield and Town of
Wakefield Planning Board (planning board), regarding a procedural due process
claim involving town counsel. We reverse in part and remand.

The following facts are drawn from the trial court’s orders, or are
otherwise found in the record. The plaintiff owns a 105-acre tract of land in
Wakefield. Approximately 68 acres of the tract are used for recreational vehicle
campsites. In 1994, the plaintiff obtained approval from the planning board to
build 16 seasonal cabins on the remaining 37 acres of the tract. Each
approved cabin was to be built on two acres.

A question later arose as to the permissible size of each of the cabins. In
2001, the planning board decided that each cabin could be 600 square feet.
The plaintiff then began creating the cabin development and as of 2007 it had
constructed four cabins.

In 2007, the plaintiff consulted with the planning board about increasing
the size of the remaining 12 cabins to approximately 850 square feet. By letter
from the town planner, the plaintiff’s request was denied and, despite the
previous approval of 600 square feet per cabin, the permissible size of each of
the plaintiff’s remaining cabins was reduced to a maximum of 400 square feet.
The matter was litigated and the Trial Court (Brown, J.) ordered that, because
the plaintiff had relied upon the planning board’s prior approval in creating the
cabin development, the plaintiff is allowed to construct 600-square-foot cabins.

In April 2011, the plaintiff sought permission from the planning board to
increase the size of the remaining 12 cabins to approximately 850 square feet.
In May, the planning board held a hearing on the plaintiff’s request. The
plaintiff’s representative, David Mankus, set forth the plaintiff’s arguments as
to why the planning board should grant the plaintiff’s request. Attorney
Richard Sager also attended the hearing and argued against the plaintiff’s
request. At one point, Sager stated that he was “town counsel,” but he did not
specify whether he was representing the planning board or some other town
entity.

During the hearing, the planning board considered the effect of RSA
216-I:1, VII-a (2011), which defines “‘[r]ecreational camping cabin,’” in
pertinent part, as “a structure on a campsite, 400 square feet or less.” As the
hearing progressed, Mankus requested a continuance, which the planning
board denied. At the conclusion of the hearing, the planning board denied the
plaintiff’s request to increase the size of the remaining cabins. In a written
decision, the planning board explained that it denied the plaintiff’s request for
the additional square footage because “[t]he court order of the prior lawsuit
approved 600 square feet and not the 850 square feet being requested at this
time as well as the jeopardy to the Code Enforcement Officer if he has to deny
the Building Permits for the 850 square feet.”

The plaintiff appealed the planning board’s decision to the superior
court. Although the plaintiff has failed to provide us with a copy of the
complaint, it appears from the record that the plaintiff appealed the planning
board’s apparent reliance upon the statutory definition of “recreational
camping cabin.” The record also indicates that the plaintiff claimed that its

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federal and state constitutional rights to procedural due process were violated
at the May 2011 planning board hearing because the board denied a
continuance and there may have been confusion about which town entity
Sager represented at the hearing and some planning board members may have
thought he represented the planning board. See U.S. CONST. amends. V, XIV;
N.H. CONST. pt. I, art. 15. The record further indicates that the plaintiff
claimed violation of its substantive due process and equal protection rights.

In January 2013, the Trial Court (Houran, J.) issued an order finding
that the planning board “based its denial on its belief that [the plaintiff’s]
proposed cabins fall under RSA chapter 216-I, specifically, RSA 216-I:1, VII-a,
which limits certain cabins to a maximum size of 400 square feet.” The court
then ruled that: (1) RSA chapter 216-I applies in this case; (2) to comport with
RSA 216-I:1, VII-a, the plaintiff’s “cabins must be less than 400 square feet”;
and (3) the planning board has the “authority to ensure compliance with RSA
chapter 216-I.” Subsequently, in March 2014, the Trial Court (Garfunkel, J.)
ruled that any possible confusion about which town entity Sager represented at
the May 2011 planning board hearing did not support the plaintiff’s procedural
due process claim. The court then held a four-day bench trial on the plaintiff’s
remaining claims. At the close of the plaintiff’s case, the defendants moved for
a directed verdict on all of the claims. The plaintiff objected. In March 2015,
the court granted the defendants’ motion. This appeal followed.

On appeal, the plaintiff argues that: (1) nothing in the language of RSA
chapter 216-I precludes it from constructing “890 square foot” cabins; (2) the
planning board lacks the authority to enforce compliance with RSA chapter
216-I; and (3) its rights to procedural due process were violated by confusion
about which town entity Sager represented at the May 2011 planning board
hearing.

We begin by addressing the plaintiff’s argument that nothing in the plain
language of RSA chapter 216-I precludes it from constructing “890 square foot”
cabins. The plaintiff further contends that, even if the language of RSA chapter
216-I is ambiguous, the legislative history of the chapter supports its
argument. Although the defendants acknowledge that the plaintiff has a vested
right to build 600-square-foot cabins, they argue that: (1) the plaintiff’s cabins
are “recreational camping cabins” as defined in RSA 216-I:1, VII-a, and that
because the statute limits the size of such cabins to 400 square feet, the
planning board is precluded from approving the plaintiff’s request to increase
the size of the remaining 12 cabins to larger than 600 square feet; and (2) RSA
216-I:1, VII-a is not ambiguous, but, even if it is, its legislative history does not
support the plaintiff’s position.

As to this claim of error, the narrow issue before us is whether RSA
chapter 216-I precludes the plaintiff from constructing cabins larger than 400
square feet. Because resolution of this issue requires the interpretation of a

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statute, our review is de novo. See State v. Gilley, 168 N.H. 188, 189 (2015).
“In matters of statutory interpretation, we are the final arbiter of the intent of
the legislature as expressed in the words of the statute considered as a whole.”
McCarthy v. Manchester Police Dep’t, 168 N.H. 202, 207 (2015) (quotation
omitted). “We first look to the language of the statute itself, and, if possible,
construe that language according to its plain and ordinary meaning.” Id.
(quotation omitted). “We interpret legislative intent from the statute as written
and will not consider what the legislature might have said or add language that
the legislature did not see fit to include.” Id. (quotation omitted). “We construe
all parts of a statute together to effectuate its overall purpose and avoid an
absurd or unjust result.” Id. (quotation omitted). “Moreover, we do not
consider words and phrases in isolation, but rather within the context of the
statute as a whole.” Id. (quotation omitted). “This enables us to better discern
the legislature’s intent and to interpret statutory language in light of the policy
or purpose sought to be advanced by the statutory scheme.” Id. (quotation
omitted). Furthermore, we “will consider legislative history only if the statutory
language is ambiguous.” Union Leader Corp. v. N.H. Retirement Sys., 162 N.H.
673, 676 (2011) (quotation omitted).

RSA chapter 216-I governs recreational campgrounds and camping
parks. See RSA ch. 216-I. RSA 216-I:1 (2011) provides definitions for terms
used throughout the chapter. Under RSA 216-I:1, VII-a, a “‘[r]ecreational
camping cabin’” is defined, in pertinent part, as “a structure on a campsite,
400 square feet or less, calculated by taking the measurements of the exterior
of the cabin.” (Emphasis added.) Thus, the plain language of the definition
establishes that a cabin that is situated on a campsite and is 400 square feet
or less constitutes a “recreational camping cabin” under the chapter. However,
the definition does not establish the maximum size of all cabins that may be
built in a recreational campground or camping park. Nothing in the definition
states that a cabin may not exceed 400 square feet. Rather, a cabin that is
larger than 400 square feet is simply not a “recreational camping cabin” under
the chapter.

We further observe that nothing in RSA chapter 216-I precludes a
campground owner from constructing a cabin larger than 400 square feet in a
recreational campground or camping park. The chapter sets forth various
requirements, rules, permissions, and exceptions relating to recreational
campgrounds and camping parks. See, e.g., RSA 216-I:2 (2011) (density), :3
(2011) (water supply), :4 (Supp. 2015) (disposal system), :7 (2011) (storage of
property considered to be abandoned), :15 (2011) (exception for motorsport
events). There is no provision, however, setting forth the maximum size of
cabins that may be built in recreational campgrounds or camping parks. Had
the legislature intended to set forth such a requirement, it could have done so
expressly.

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 Accordingly, we conclude that the trial court erred in ruling that, to
comport with RSA chapter 216-I, the plaintiff’s “cabins must be less than 400
square feet.” We, therefore, reverse the ruling and remand with instructions to
the trial court to vacate the planning board’s decision and remand to the board
to address the plaintiff’s request to increase the size of the remaining cabins.
We note, however, that in ruling on the narrow issue presented by this claim of
error, we express no opinion as to whether the plaintiff’s request is otherwise
subject to, or permissible under, other relevant statutes, regulations, and
ordinances.

In light of our ruling, we need not address the plaintiff’s argument that
the planning board lacks the authority to enforce compliance with RSA chapter
216-I, or the plaintiff’s argument that its procedural due process rights were
violated at the May 2011 planning board hearing.

Finally, any issues raised in the plaintiff’s notice of appeal that it has not
briefed are deemed waived. See Mountain View Park, LLC v. Robson, 168 N.H.
117, 121 (2015).

Reversed in part and remanded.

DALIANIS, C.J., and HICKS, LYNN, and BASSETT, JJ., concurred.

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