Sullyville, LLC v. Town of Carroll

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2019-0240, Sullyville, LLC v. Town of Carroll,
the court on April 8, 2021, issued the following order:

Having considered the briefs and oral arguments of the parties, the court
concludes that a formal written opinion is unnecessary in this case. See Sup.
Ct. R. 18(1). This case arises out of a zoning dispute regarding the proposed
expansion of a campground in Carroll by the plaintiff, Sullyville, LLC
(Sullyville). The intervenors, Joseph and Lisa Trainor, appeal two orders of the
Superior Court (Bornstein, J.) granting summary judgment on their
counterclaims for declaratory judgment and injunctive relief in favor of
Sullyville. Sullyville cross-appeals the same orders granting summary
judgment on its appeal of the Town of Carroll Zoning Board of Adjustment’s
(ZBA) June 20, 2017 decision and its claim for municipal estoppel in favor of
the defendant, the Town of Carroll (Town), and the Trainors. We affirm.

I

Sullyville owns a 45.08-acre parcel of land in Carroll. The northern part
of the property is classified as residential (R-1), and the southern part of the
property is classified as residential-business (R-B). Sullyville operates the
Beech Hill Campground on this property, which has approximately 142
campsites. In 1979, the Town adopted a zoning ordinance that prohibits the
operation of commercial campgrounds in R-1 districts, and requires a special
exception for the operation of commercial campgrounds in R-B districts.
Sullyville contends that its entire property has continuously operated as a
commercial campground since before the adoption of the zoning ordinance.

In the mid-1980s, Jeffrey Jones purchased this property from David
Burnovsky. Jones then sought approval from the planning board to subdivide
the property in 1989. He submitted Plan 375B, which was approved by the
planning board and was recorded in the registry of deeds. This plan divided
the property into three lots and includes Note 2, which states, “All campsites
and roads lying entirely or partially outside the limits of Lot 2 shall be
removed.” After the land had been subdivided according to this plan, Jones
sold Lot 1 and Lot 2 to Edmund Bousquin on May 25, 1990. The deed was
recorded and includes a reference to plan 375B.

In July 1990, Jones sought approval from the planning board to modify
his subdivision. Under the new Plan 448A, Lot 1, Lot 2, and a small portion of
Lot 3 on the original plan became Lot 1, and the remainder of Lot 3 became Lot
2. The planning board approved Jones’ modification, and Plan 448A was
recorded. This plan contained a modified Note 2, which said, “All campsites
and roads lying entirely or partially outside the Limits of Lot 1 shall be
removed.” Jones then provided Bousquin a corrective deed that reflected the
changes from Plan 375B to Plan 448A, and this deed was recorded. After the
modification, Bousquin owned Lot 1 and Jones owned Lot 2. Seven years later,
in 1997, Jones sold Lot 2 to Bousquin. Then, on October 3, 2002, Bousquin
successfully petitioned the planning board to adopt Plan 1884, which merged
Lot 1 and Lot 2 on Plan 448A into a single lot. This plan was recorded.

On March 6, 2006, Jason and Mary Sullivan entered into a purchase and
sale agreement with Bousquin to purchase the campground. The agreement
states that the property is “SUBJECT TO any matters shown on Plan No. 448A
and Plan No. 1884.” On April 19, 2006, the property was conveyed to
Sullyville, the Sullivans’ newly formed company, by warranty deed, which also
stated that the property was “SUBJECT TO any matters shown on Plan No.
448A and Plan No. 1884.” In 2007, the Trainors purchased the adjacent lot
along the western border of the campground. At that time, Sullyville was
operating at least 142 campsites.

In 2015, Sullyville sought additional funding to install full water, septic,
and electrical connections in the northern part of the property. However, on
October 13, 2016, the Town’s Code Enforcement Officer informed Sullyville that
it must cease any work on its expansion of the campground until it received
approval from the planning board. Sullyville submitted a site plan to the
planning board on November 8, 2016, proposing thirty new RV sites in the
northern part of the campground. On November 23, 2016, the Trainors
received an abutters’ notice of the public hearing on Sullyville’s proposed
expansion. On December 1, 2016, the Trainors filed a complaint in the
superior court seeking a declaratory judgment that the proposed expansion
does not comply with the Town’s zoning ordinance, and injunctive relief
ordering the cessation of Sullyville’s expansion. Sullyville moved for summary
judgment on these claims, which was granted on September 27, 2017.

Meanwhile, on March 16, 2017, the planning board determined that
Sullyville’s proposed site plan would not require a variance or special exception
for the additional thirty RV campsites. The Trainors appealed to the ZBA,
which, on June 20, 2017, reversed the planning board’s decision. The ZBA
determined that “the area of the proposed expansion is not a legal, non-
conforming use, referencing Plan 448A, formerly Lot 2.” Sullyville filed a
motion for rehearing, and the ZBA denied this request.

Sullyville filed a complaint in the superior court on October 12, 2017,
alleging four counts: (1) an appeal of the ZBA decision pursuant to RSA 667:4;
(2) municipal estoppel; (3) unconstitutional taking; and (4) a request for

2
attorney’s fees. On October 26, 2017, the Trainors filed a motion to intervene,
which the court granted with respect to counts one and two. The Trainors then
filed three counterclaims seeking: (1) declaratory judgment that Sullyville was
engaged in nonconforming activities that had been abandoned by its
predecessors-in-interest; (2) injunctive relief to prevent Sullyville’s use of five
campsites located outside Lot 1 on Plan 448A and to decrease the number of
campsites within Lot 1 from 142 to 71 sites, as originally shown on Plan 448A;
and (3) injunctive relief pursuant to RSA 676:15.

The parties cross-filed motions for summary judgment. On January 4,
2019, the trial court granted the Town and the Trainors’ motions for summary
judgment as to Sullyville’s ZBA appeal and municipal estoppel claim. The trial
court also granted Sullyville’s motion for summary judgment on the Trainors’
counterclaims regarding Sullyville’s proposed expansion of the campground in
the northern part of the property and Sullyville’s allegedly unlawful
intensification of the nonconforming use in Lot 1 on Plan 448A. Sullyville then
filed a second motion for summary judgment on the Trainors’ remaining
counterclaims related to Sullyville’s allegedly unlawful use of five campsites
located outside Lot 1 on Plan 448A alleging that the Trainors lacked standing.
The trial court granted this motion on March 29, 2019, but it denied Sullyville’s
request for attorney’s fees. The trial court has not ruled on Sullyville’s
unconstitutional taking claim. The Trainors appealed to this court, and
Sullyville cross-appealed. We now affirm.

II

A

We begin by addressing the trial court’s grant of summary judgment on
Sullyville’s ZBA appeal. Sullyville argues that the trial court erred in
concluding that its nonconforming use of the campground had been
abandoned. In reviewing the trial court’s grant of summary judgment, we
consider evidence in the light most favorable to the nonmoving party. Benoit v.
Cerasaro, 169 N.H. 10, 14 (2016). If there is no genuine issue of material fact,
and if the moving party is entitled to judgment as a matter of law, we will affirm
the grant of summary judgment.” Loeffler v. Bernier, 173 N.H. 180, 183
(2020). However, if we determine that a genuine dispute of material fact exists,
summary judgment cannot stand. See Bloom v. Casella Constr., 172 N.H. 625,
631 (2019). “We review the trial court’s application of the law to the facts de
novo.” Id. at 627.

A nonconforming use is a lawful use existing before the adoption of a
zoning ordinance prohibiting such use, and that does not conform to the
requirements of the ordinance. See Dartmouth Corp. of Alpha Delta v. Town of
Hanover, 169 N.H. 743, 750 (2017). RSA 674:19 and Part I, Articles 2 and 12
of the New Hampshire Constitution protect an owner’s right to continue a

3
nonconforming use. See Bosonetto v. Town of Richmond, 163 N.H. 736, 745
(2012); see also N.H. CONST. pt. I, arts. 2, 12; RSA 674:19 (2016). In prior
cases, we recognized that an owner may lose the right to continue a
nonconforming use by common law abandonment, Lawlor v. Town of Salem,
116 N.H. 61, 62 (1976), or pursuant to a zoning ordinance that prohibits the
continuation of a nonconforming use that had been discontinued for a set
period of time. McKenzie v. Town of Eaton Zoning Bd. of Adjustment, 154 N.H.
773, 777-78 (2007). However, as with any right, the holder of a nonconforming
use may voluntarily waive it. See, e.g., Maroun v. Deutsche Bank Nat’l Trust
Co., 167 N.H. 220, 228 (2014) (holding that statutory homestead right may be
waived); Tomasko v. Dubuc, 145 N.H. 169, 176 (2000) (observing that
“[c]onstitutional rights can be waived”). Waiver occurs when the holder
voluntarily or intentionally relinquishes a known right. Maroun, 167 N.H. at
227. When the owner of a nonconforming use voluntarily waives his or her
right to continue it, it may not be continued or reestablished.

The ZBA concluded that “[t]he area of the proposed expansion is not a
legal non-conforming use, referencing Plan 448A, formerly Lot 2.” Although the
ZBA minutes refer to Jones as having “abandoned” the right to continue the
nonconforming campground use, the sole reason for its conclusion was Jones’
agreement to Note 2 on Plans 375B and 448A. We interpret the ZBA’s decision
as finding waiver rather than abandonment of the right to continue the
nonconforming use, and we conclude that its decision was correct.

The undisputed facts in this case clearly show that Jones voluntarily
waived his right to continue the nonconforming campground use in Lot 2 on
Plan 448A when he subdivided the property in 1989. Jones’ agreement to Note
2 on Plans 375B and 448A demonstrates that he willingly relinquished the
nonconforming use in order to receive the planning board’s approval of his
subdivision plan. See CBDA Dev., LLC v. Town of Thornton, 168 N.H. 715, 722
(2016) (noting planning board has authority to impose conditions upon site
plans reasonably related to land use goals); see also New London Land Use
Assoc. v. New London Zoning Board, 130 N.H. 510, 517 (1988) (observing that
owner of nonconforming use may willingly relinquish it in order to obtain
authorization from planning board to make changes on owner’s land). Because
Jones waived his right to continue the nonconforming campground use in Lot 2
on Plan 448A, he terminated the right to continue it for himself and for any
subsequent purchaser of the property.1

1 Jones’ waiver of his right to continue the nonconforming campground use in Lot 2 on Plan 448A

became effective immediately upon the planning board’s approval of his subdivision plan. It is
irrelevant that the campsites were not removed in accordance with Note 2, and that they have
been continuously used since before Jones waived his right to continue the nonconforming use.

4
 B

We now turn to the trial court’s grant of summary judgment against
Sullyville on its municipal estoppel claim. In order for a plaintiff to prevail on a
municipal estoppel claim, the plaintiff must show that: (1) the municipality, by
the words or conduct of an authorized official, falsely represented or concealed
a material fact with knowledge of the fact; (2) the plaintiff was ignorant of the
truth of the matter; (3) the representation was made with the intention of
inducing the plaintiff to rely upon it; and (4) the plaintiff reasonably relied upon
the representation to the plaintiff’s detriment. Thomas v. Town of Hooksett,
153 N.H. 717, 721 (2006); City of Concord v. Tompkins, 124 N.H. 463, 468
(1984); see also Bosonetto, 163 N.H. at 742-43. Each element of municipal
estoppel requires a factual determination. Sutton v. Town of Gilford, 160 N.H.
43, 58 (2010).

Reliance on a Town representation is unreasonable when the plaintiff, “at
the time of his or her reliance or at the time of the representation or
concealment, knew or should have known that the conduct or representation
was improper, materially incorrect or misleading.” Id. at 59 (quotation
omitted). Incorporated into the concept of reasonable reliance is the
requirement that the plaintiff exercise due diligence to learn the truth of a
matter relied upon. See Cadle Co. v. Bourgeois, 149 N.H. 410, 418 (2003).
This due diligence requirement imposes a duty to engage in further reasonably
diligent inquiry when there is a reason to do so. See Healey v. Town of New
Durham, 140 N.H. 232, 241 (1995). “Where there is reason for a party to
inquire, neglect to do so is at his peril, and he is in such cases chargeable,
constructively, with notice of what he might have learned on examination.”
Sawin v. Carr, 114 N.H. 462, 464 (1974) (quotation omitted) (discussing due
diligence requirement in context of determining whether party was bona fide
purchaser for value).

The trial court determined that Sullyville’s reliance on Town
representations that its nonconforming campground use had been
grandfathered was unreasonable as a matter of law because Sullyville failed to
exercise due diligence. The trial court concluded that Sullyville had actual
notice that its property was subject to “any matters shown on Plan No. 448A
and Plan No. 1884” because this information was included in its purchase and
sale agreement with Bousquin. (Quotation omitted.) Moreover, it is
undisputed that before purchasing the campground, Sullyville never reviewed
Plan 448A, which the trial court concluded, “required in clear and
unambiguous language the removal of all campsites and roads outside the
limits of Lot 1.” We agree with the trial court that Sullyville’s failure to review
Plan 448A is dispositive. Based on the undisputed material facts, if Sullyville’s
representatives had read Plan 448A, it would have known that campsites were
not permitted outside Lot 1 and that any authorized Town representation was

5
“improper, materially incorrect or misleading.” Sutton, 160 N.H. at 59
(quotation omitted). Therefore, Sullyville’s reliance on any authorized Town
representation was unreasonable as a matter of law.

III

Next, we turn to the Trainors’ counterclaims. The Trainors requested a
declaratory judgment and injunctive relief under the common law and RSA
676:15 (2016).2 The trial court first granted summary judgment in favor of
Sullyville on the Trainors’ counterclaims related to Sullyville’s proposed
expansion and construction in the northern part of the campground because of
res judicata, and that ruling was not appealed. Then, the trial court separated
the remaining counterclaims into two separate categories as the “request for
Sullyville to remove the five campsites depicted outside of Lot 1 on Plan 448A”
and the “request for Sullyville to revert back to 71 campsites.” The trial court
concluded that the Trainors lacked standing to bring the first category of
counterclaims relating to Sullyville’s use of five campsites located outside Lot 1
on Plan 448A, in which the nonconforming campground use was allegedly
unlawful. It also concluded that the statute of limitations barred the Trainors’
second category of counterclaims relating to Sullyville’s unlawful intensification
of its lawful nonconforming use in Lot 1.

We review a party’s pleadings de novo. See Petition of Warden (State v.
Roberts), 168 N.H. 9, 18 (2015) (observing that we interpret written documents
de novo). Based upon the plain language in the Trainors’ pleadings, it is
readily apparent that they seek three different categories of relief. First, they
seek the “cessation of any and all unauthorized construction and development
activities” on the property, which the trial court determined had been
previously litigated and barred by res judicata. Next, they seek a declaratory
judgment that the “use of what was formerly known as Lot 2 on Plan 448A as a
commercial campground operation was abandoned during the period from
1990 to 1997,” and injunctive relief ordering the removal of those campsites.
Finally, they seek a declaratory judgment that the “scope and extent of the
lawful, continuous, pre-existing use of the Premises as a campground is as

2 The Trainors have no basis for bringing their counterclaims under the common law. Zoning
regulations are authorized by statute, see generally RSA ch. 674 (2016 & Supp. 2019), and the
common law does not recognize a cause of action for their enforcement. Instead, RSA 676:15
creates a cause of action to enforce local zoning regulations. See RSA 676:15 (2016). It provides
that local officials and certain private persons may seek injunctive relief and other equitable
remedies against a landowner for violating local zoning laws. See id.; cf. Marquay v. Eno, 139
N.H. 708, 713 (1995) (“[W]hether or not the common law recognizes a cause of action, the plaintiff
may maintain an action under an applicable statute where the legislature intended violation of
that statute to give rise to civil liability.”). Therefore, we conclude that there is no common law
basis for relief and address the Trainors’ counterclaims only under RSA 676:15.

6
defined by Plan 448A, specifically, the sites shown entirely within the area
shown as Lot 1 on Plan 448A,” and injunctive relief ordering the return to those
conditions.

On appeal, the Trainors attempt to characterize this case as merely one
of unlawful intensification, but their pleadings demonstrate otherwise.
Although the trial court crafted its own vocabulary to characterize the Trainors’
counterclaims, we find no error in its distinctions because they correspond
with the natural reading of the Trainors’ own pleadings. One of their alleged
injuries was pleaded under the doctrine of common law abandonment while the
other was pleaded under the doctrine of unlawful intensification.
Abandonment and unlawful intensification, while related, are separate
doctrines that invoke completely different tests. See Lawlor, 116 N.H. at 62;
Pike Indus. v. Woodward, 160 N.H. 259, 263 (2010); Town of Hampton v.
Brust, 122 N.H. 463, 468-69 (1982). Moreover, the Trainors’ arguments in this
court reflect this dichotomy. Their arguments recognize that the issue in this
case is operating a campground “within an area where the use was lawfully
nonconforming, but also in an area in which the use had been specifically
prohibited.” Because the trial court reasonably identified different legal bases
for relief, it was not inappropriate for the trial court to separate the Trainors’
counterclaims on that basis.

A

Next we turn to the Trainors’ statute of limitations argument. The trial
court concluded that the three-year limitations period of RSA 508:4 applied to
claims arising under RSA 676:15. RSA 508:4 establishes a three-year
limitations period for all personal actions, except slander and libel. RSA 508:4,
I (2010). The Trainors contend that RSA 508:4 is inapplicable because actions
arising under RSA 676:15 are not “personal actions.” Resolution of this
question requires that we engage in statutory interpretation. When
interpreting a statute, our first step is to examine the language of the statute,
and, if possible, construe that language according to its plain and ordinary
meaning. Petition of N.H. Div. for Children, Youth & Families, 173 N.H. 613,
616 (2020). We construe all parts of a statute together to effectuate its overall
purpose and avoid absurd results. State v. Priceline.com, 172 N.H. 28, 33
(2019). We conclude that the actions brought by the Trainors pursuant to RSA
676:15 are “personal actions” for the purpose of RSA 508:4, and are thus
subject to the three-year limitations period.

The Trainors argue that a personal action is an action “brought for the
recovery of debts, personal property, or damages arising from any cause,”
including those brought “for some injury to the person or to relative rights or to
personal or real property.” (Quotation omitted.) They contend that because
RSA 676:15 does not provide for a damages remedy, an action arising under
that statute is not personal. We reject this highly formalistic distinction

7
between law and equity to define the meaning of a personal action. Instead, we
observe that RSA chapter 508 establishes the limitations periods for three
different types of civil actions. RSA chapter 508 recognizes the existence of
“real actions,” which deal with the recovery of real estate, RSA 508:2 (Supp.
2020), “personal actions,” RSA 508:4, and those “civil enforcement actions”
that are brought by the State, see RSA 508:4-h (Supp. 2020).

In this context, it is clear that the legislature did not intend to exclude an
entire class of actions without a limitations period simply because the only
remedy sought is an equitable one. Instead, it is clear that a “personal action”
means any action not involving the recovery of real estate. See Webster’s Third
New International Dictionary 1686 (unabridged ed. 2002) (defining, in relevant
part, personal action as any action “not brought for the recovery of or involving
rights in lands [or] tenements”). RSA 508:4 leaves no room for distinctions
between actions brought for monetary damages and actions brought for
equitable relief. Therefore, RSA 676:15 creates a personal action.3 See RSA
676:15. For these reasons, we conclude that the statute of limitations is
applicable to actions arising under RSA 676:15.

1

Next, the Trainors contend that the trial court erred by determining that
the continuing wrong doctrine did not toll the statute of limitations for their
counterclaims. The continuing wrong doctrine is a common law rule that
typically applies in cases of trespass or nuisance. Thorndike v. Thorndike, 154
N.H. 443, 446 (2006). It provides that when a tort is of a continuing nature,
although the initial tortious act may have occurred longer than the statutory
period before the filing of an action, an action will not be barred if it can be
based upon the continuance of that tort within that period. Id. RSA 676:15,
however, does not create a common law cause of action in tort; instead, the
cause of action is purely statutory. This court has been reluctant to extend the
application of the continuing wrong doctrine beyond its traditional scope, even
within the sphere of common law torts. See id. at 447 (continuing wrong
doctrine did not apply in tort of corporate freeze-out); see also Singer Asset
Finance Co. v. Wyner, 156 N.H. 468, 478 (2007) (declining to apply continuing
wrong doctrine to tortious interference with contract claim because interference
occurred at two discrete points in time). There is simply no authority to
support the proposition that the continuing wrong doctrine should apply to a
statutory cause of action, and we decline to extend its application now.

3 We also reject the Trainors’ argument that prior cases support the conclusion that an action

under RSA 676:15 is not a personal action. See Miner v. A&C Tire Co., 146 N.H. 631 (2001);
Town of Salem v. Wickson, 146 N.H. 328 (2001); Devaney v. Town of Windham, 132 N.H. 302
(1989). The statute of limitations is an affirmative defense that must be raised by the defendant.
Exeter Hospital v. Hall, 137 N.H. 397, 399 (1993). There is no indication that the defendants
raised a statute of limitations defense in these cases cited by the Trainors. Accordingly, these
cases are not dispositive here, where the statute of limitations is directly at issue.

8
 The Trainors attempt to save their argument by describing the alleged
zoning violations as “akin to a claim of nuisance.” It is significant, however,
that the Trainors never pleaded nuisance in the trial court. We will not turn
their statutory counterclaim into one of nuisance given their failure to plead it
earlier. Therefore, we conclude that the continuing wrong doctrine did not toll
the statute of limitations for the Trainors’ counterclaims.

2

Finally, the Trainors challenge the trial court’s ruling that the discovery
rule did not toll the statute of limitations for their counterclaims with respect to
Sullyville’s allegedly unlawful intensification of the campground use from 71 to
142 campsites in Lot 1 on Plan 448A. RSA 508:4 codifies the common law
discovery rule. Balzotti Global Grp., LLC v Shepherds Hill Proponents, LLC,
173 N.H. 314, 320 (2020). This statute provides that a plaintiff must bring a
personal action within three years of the act or omission complained of except
“when the injury and its causal relationship to the act or omission were not
discovered and could not reasonably have been discovered at the time of the
act or omission.” RSA 508:4, I. In that case, the action must be commenced
within three years of “the time the plaintiff discovers, or in the exercise of
reasonable diligence should have discovered, the injury and its causal
relationship to the act or omission complained of.” Id. Once a defendant
establishes that the statute of limitations would bar an action, the plaintiff has
the burden of raising and proving that the discovery rule is applicable to the
action that would otherwise be time-barred. Balzotti, 173 N.H. at 320.

Pursuant to RSA 508:4, the discovery rule will toll the three-year statute
of limitation until two prongs are satisfied. Id. at 320. First, a plaintiff must
know or reasonably should have known that it has been injured; and second, a
plaintiff must know or reasonably should have known that its injury was
proximately caused by conduct of the defendant. Id. In order to obtain the
benefit of the discovery rule and overcome the statute of limitations, the
plaintiff must prove that at least one prong was not yet satisfied at a time
within three years of the plaintiff’s commencement of the action. Id. The “rule
is not intended to toll the statute of limitations until the full extent of the
plaintiff’s injury has manifested itself”; however, the fact “that the plaintiff
could reasonably discern that he suffered some harm caused by the
defendant’s conduct is sufficient to render the discovery rule inapplicable.” Id.
(quotations omitted). Moreover, the “plaintiff need not be certain of the causal
connection; the possibility that it existed will suffice to obviate the protections
of the discovery rule.” Id. (quotation omitted).

A defendant may raise a statute of limitations defense in a motion for
summary judgment. See Fothergill v. Seabreeze Condos., 141 N.H. 115, 116
(1996). “Whether the plaintiff exercised reasonable diligence in discovering the

9
causal connection between the injury and the defendant’s alleged act or
omission is a question of fact.” Balzotti, 173 N.H. at 321 (quotation omitted).
If there is a factual dispute regarding the application of the discovery rule,
summary judgment cannot be granted. See Big League Entm’t. v. Brox Indus.,
149 N.H. 480, 484-85 (2003). However, if there is no genuine issue of material
fact, and the moving party is entitled to judgment as a matter of law, we will
affirm the trial court’s grant of summary judgment. Loeffler, 173 N.H. at 183.
We agree with the trial court that there is no dispute of material fact relating to
Sullyville’s allegedly unlawful intensification of its lawful nonconforming use in
Lot 1 on Plan 448A, and we affirm. The undisputed facts demonstrate that the
Trainors were aware of Sullyville’s campground operation at the time they
purchased the property.

The Trainors argue that the discovery rule tolled the statute of
limitations until 2016 when they learned that Sullyville’s conduct allegedly
constituted a zoning violation. We disagree. The trial court found, and the
Trainors do not contest on appeal, that 142 campsites existed in 2007, before
they purchased the adjacent property, and that sixteen of those campsites
directly bordered the Trainors’ lot. Moreover, the undisputed facts reveal that
the Trainors were aware of Sullyville’s campground operations at the time they
purchased their property. The Trainors further alleged that they could see a
“parking lot of RVs” and that the noise, smoke, and commotion caused by the
campers are within their plain view. These undisputed facts demonstrate that
the Trainors were aware of the conditions on Sullyville’s campground that
contributed directly to their alleged injury at the time they purchased their
property.

Accordingly, the discovery rule does not apply because the Trainors were
aware of their alleged injuries and reasonably should have been aware that
their injuries were caused by Sullyville’s operations before the three-year
statute of limitations expired. Balzotti, 173 N.H. at 322. The discovery rule
does not toll the statute of limitations until a plaintiff discerns the legal theory
by which his or her case will proceed; rather, it tolls the statute of limitations
only when the injury and its causal relationship to the defendant’s act or
omission remain unknown to the plaintiff. Because the Trainors were aware of
Sullyville’s allegedly injurious conduct at the time they purchased their
property, the Trainors should have brought this action within three years of
that date. See id. at 323.

For these reasons, we conclude that RSA 508:4 is applicable to the
Trainors’ counterclaims and that the statute of limitations has barred the
Trainors’ counterclaims relating to Sullyville’s allegedly unlawful intensification
of its nonconforming campground use in Lot 1 on Plan 448A.

10
 B

Now we turn to the Trainors’ standing argument. The Trainors contend
that the trial court erred by concluding that they lacked standing to bring their
counterclaims relating to the five campsites located outside Lot 1 on Plan 448A.

When the relevant facts are not in dispute, we review de novo the trial
court’s determination on standing. State v. Actavis Pharma, 170 N.H. 211, 214
(2017). “In evaluating whether a party has standing to sue, we focus on
whether the party suffered a legal injury against which the law was designed to
protect.” Id. (quotation omitted). RSA 676:15 permits abutters to sue a private
defendant for violating a zoning ordinance only if the plaintiff is “specially
damaged” by the alleged zoning violation.4 RSA 676:15; see also Barton v. H.D.
Riders Motorcycle Club, 131 N.H. 60, 62 (1988). “This requirement mirrors the
familiar burden to plead and prove special damages as a prerequisite to
equitable relief, when sought by a private party to remedy what would
otherwise be treated solely as a public nuisance.” Barton, 131 N.H. at 62.
“The statute in question here employs the concept of special damage to identify
those private landowners who may seek relief from actual or threatened
infractions of a municipal ordinance that would otherwise be subject to
enforcement under State law only by municipal officers . . . .” Id.

The trial court concluded that the Trainors lacked standing to bring their
counterclaims relating to the five campsites because they failed to allege
sufficient facts demonstrating that they have been specially damaged by the
existence of those campsites. For instance, the court observed that the
Trainors’ pleading under RSA 676:15 “makes the bare, non-specific assertion
that the ‘unlawful expansion . . . has caused special damages to the Trainors,’
but likewise includes no assertion that the five campsites have caused them
‘special damages’ and no assertions of predicate facts as to how the five
campsites have done so.” The court also determined that the Trainors’ counter
affidavit in response to Sullyville’s motion for summary judgment contained the
same defects. It simply made the “bare assertion that the five campsites have
caused or will cause the Trainors special damage” that was “unsupported by
any assertions of specific predicate facts.” We agree with the trial court that
the Trainors have failed to allege facts showing that they have been specially
damaged by the existence of the five campsites.

The Trainors argue that abutter status alone is sufficient to confer
standing under RSA 676:15. In order to resolve this issue, we must interpret

4 This rule accords with the standing requirements under the New Hampshire Constitution, which

requires parties to have personal legal or equitable rights that are adverse to one another, with
regard to an actual, not hypothetical, dispute, which is capable of judicial redress. State v.
Actavis Pharma, 170 N.H. 211, 214 (2017).

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the statute. In matters of statutory interpretation, we are the final arbiter of
the legislature’s intent as expressed in the words of a statute considered as a
whole. Trefethen v. Town of Derry, 164 N.H. 754, 755 (2013). Our first step is
to examine the language of the statute, and, if possible, construe that language
according to its plain and ordinary meaning. See id. 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.

The Trainors cite numerous provisions of RSA chapter 676 that grant
special rights to abutters. See, e.g., RSA 676:4, I(d)-(e) (Supp. 2020) (granting
abutters notice of applications and hearings before planning board and
opportunity to testify); RSA 676:7 (Supp. 2020) (giving abutter notice of and
opportunity to testify before ZBA). In contrast to those statutes, however, RSA
676:15 creates a cause of action for “the owner of any adjacent or neighboring
property who would be specially damaged” by an alleged zoning violation on the
defendant’s property. RSA 676:15 (emphasis added). The phrase “who would
be specially damaged” modifies “the owner of any adjacent or neighboring
property.” The legislature would not have included this modifying phrase if it
intended to create a cause of action for all abutters solely on account of their
abutter status. The Trainors’ statutory argument ignores not only the plain
and unambiguous language of the statute, but also the basic rule of statutory
construction that “all of the words of a statute must be given effect and that
the legislature is presumed not to have used superfluous or redundant words.”
Pennelli v. Town of Pelham, 148 N.H. 365, 367-68 (2002) (quotation omitted).

The Trainors also argue that our decision in Barton supports a less rigid
application of the standing rule. We disagree. In Barton, we recognized that a
showing of special damages was “a statutory condition of a property owner’s
standing to seek injunctions or abatements of orders to cure a zoning
violation.” Barton, 131 N.H. at 62. There, we determined that the plaintiffs
were specially damaged because there was evidence of “an allegedly illegal
recreational development” on the defendant’s property that “would attract” as
many as fifty motorcyclists at a time, and the plaintiff’s land was “located on
the dead-end road that the cyclists would travel to reach the recreational area.”
Id. This case is distinguishable for several reasons. The five campsites sit
approximately 1000 feet east of the Trainors’ shared boundary line, and they
are separated from the Trainors’ property by trees, structures, and more than
100 campsites that Sullyville has operated since at least 2006. Significantly,
the Trainors never distinguished in either their pleading or their counter
affidavit that these five campsites directly caused their alleged injuries
independent of the other lawful campground activities.

The Trainors have failed to plead any fact that demonstrates special
damages beyond the assertion that the existence of these campsites
contributes to their general grievances against the whole campground. For

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these reasons, we conclude that the Trainors lacked standing to challenge the
existence of the five campsites located outside Lot 1 on Plan 448A.

IV

Sullyville also argues that the trial court erred by failing to award
attorney’s fees because the Town’s arguments and the Trainors’ counterclaims
were made in bad faith. “We will not overturn the trial court’s decision
concerning attorney’s fees absent an unsustainable exercise of discretion.”
DiMinico v. Centennial Estates Coop., Inc., 173 N.H. 150, 161 (2020). “To
warrant reversal, the discretion must have been exercised for reasons clearly
untenable or to an extent clearly unreasonable to the prejudice of the objecting
party.” Id. “In evaluating the trial court’s ruling on this issue, we acknowledge
the tremendous deference given a trial court’s decision regarding attorney’s
fees.” Id. “If there is some support in the record for the trial court’s
determination, we will uphold it.” Id. Here, the trial court concluded that this
case was a “close call” but ultimately “decline[d] to award Sullyville its costs
and attorney’s fees at this time.” Nothing in the record demonstrates that the
trial court was “clearly unreasonable” in exercising its discretion not to award
attorney’s fees. Id. Therefore, the trial court’s denial of attorney’s fees is
affirmed.

V

For the foregoing reasons we affirm the trial court’s grant of summary
judgment on Sullyville’s ZBA appeal, municipal estoppel claim, and the
Trainors’ counterclaims. We also affirm the trial court’s denial of attorney’s
fees for Sullyville.

Affirmed.

HICKS and DONOVAN, JJ., concurred; TUCKER, J., superior court
justice, and ABRAMSON and BROWN, JJ., retired superior court justices, all
specially assigned under RSA 490:3, concurred.

Timothy A. Gudas,
Clerk

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