Town of Pelham v. Brookwood Realty Group, LLC

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2019-0398, Town of Pelham v. Brookwood
Realty Group, LLC, the court on April 13, 2020, issued the
following order:

Having considered the briefs and record submitted on appeal, we
conclude that oral argument is unnecessary in this case. See Sup. Ct. R. 18(1).
We affirm.

The respondent, Brookwood Realty Group, LLC, appeals an order of the
Superior Court (Temple, J.), following an evidentiary hearing, requiring that it
remove certain construction material and equipment stored outside on its
property in violation of the zoning ordinance for the petitioner, the Town of
Pelham, and enjoining further outdoor storage of construction material and
equipment. See RSA 676:15 (2016). On appeal, the respondent argues that
the ordinance is ambiguous, and that the trial court erred by not applying a
rule of construction from other jurisdictions that would have resolved the
alleged ambiguity in the respondent’s favor because, it claims, the town did not
prove a public harm. The respondent further contends that the trial court
misapplied joint venture law, and erred by not applying the doctrine of laches.

The interpretation of a zoning ordinance is a question of law, which we
review de novo. Dartmouth Corp. of Alpha Delta v. Town of Hanover, 169 N.H.
743, 754 (2017). The meaning of an ordinance is determined from its
interpretation as a whole, and not by construing isolated words or phrases.
See id. When the language of a zoning ordinance is plain and unambiguous, we
do not look beyond the ordinance itself to determine legislative intent. Id.

Laches is an equitable doctrine that bars litigation when the plaintiff has
slept on its rights. Tarnawa v. Goode, 172 N.H. 321, 331 (2019). “Laches is
not a mere matter of time, but is principally a question of the inequity of
permitting the claim to be enforced – an inequity founded on some change in
the conditions or relations of the property or the parties involved.” Id.
(quotation omitted). The party claiming laches has the burden to prove both
that the delay was unreasonable and that prejudice resulted. Id. The trial
court has broad discretion to decide whether the circumstances justify its
application, and unless the trial court’s decision is unsupported by the
evidence or erroneous as a matter of law, we will uphold it. Id.
 The trial court found the following relevant facts. At some point as early
as 2009 and no later than 2013, the planning director for the town had a
conversation with one of the members of the respondent limited liability
company regarding the respondent’s property. During that conversation, the
respondent’s member asked “if the respondent could temporarily store a load
or two of bridge steel at the property.” The members of the respondent are also
members of a separate limited liability company that is in the business of
constructing roads and bridges (construction company). Although the
planning director believed that storing construction material on the property
would violate the zoning ordinance, he gave the respondent’s member
“permission to temporarily store one or two loads of bridge steel at the property
with the caveat that it would have to be removed if the Town received any
complaints about it.” The planning director “believed that bridge steel would
be stored at the property for only a few months.”

Subsequently, the construction company began storing construction
material and equipment outside at the property, and depositing and retrieving
such material and equipment by commercial truck. The material and
equipment did not belong to the respondent, and the construction company did
not pay the respondent to store the material and equipment. The amount of
material stored at the property was “significantly more than one or two loads of
materials.” In response to complaints about trucking traffic, the respondent
improved an alternate access driveway that allowed the construction company
to avoid a residential neighborhood.

In response to the complaints, the planning director inspected the
property, and in April 2013, after discovering the amount of material stored, he
notified the respondent that its use was not permitted, and that the respondent
was required either to remove the material or apply for a variance and site plan
approval. For the next two years, the respondent continued to store the
construction company’s material at the property, but in June 2015, at the
urging of the town, it applied for a variance and site plan approval. Before the
town’s zoning board of adjustment or planning board could act on the
applications, however, the respondent withdrew them, stating that it intended
to revise and resubmit them. In May 2016, the respondent again assured town
officials that it would re-file its variance application, and agreed not to store
any more construction material at the property and to permit the town to
inspect the property periodically.

By December 2016, after the respondent still had not re-filed its variance
application, the town notified it that it had until January 27, 2017 either to
remove the construction material or apply for a variance. The respondent took
neither action, and on October 31, 2017, the town issued a notice of violation
directing the respondent to remove all construction material by November 15,

2
2017. The respondent failed to comply with the notice, and on April 18, 2018,
the town filed the present matter.

The zoning ordinance provides, in relevant part, that “[n]o building or
land shall hereafter be used or occupied and no building or part thereof shall
be erected, moved or altered unless in conformity with the regulations specified
in this Ordinance for the district in which it is located.” The ordinance
contains a table of uses defining uses that are permitted by right or by special
exception in each zoning district, and prefaces the table with the following
statement: “Only the following principal uses are permitted.” None of the
permitted uses identified in the table of uses describes outdoor storage, the
storage of construction materials, or a “construction yard.” The ordinance
defines the B-5 zoning district, in which the property is located, as follows:

The B-5 district is intended for businesses such as professional
office space, banks, medical services, educational facilities, health
clubs, recreation facilities, family entertainment, retail shopping,
grocery stores and eating and drinking establishments with
consumption limited to the premises. Businesses prohibited from
this district include new or used car dealerships, junk yards, gas
stations, car washes, fast food restaurants with drive through
windows and single tenant “Big Box” retail buildings that exceed
75,000 square feet. Additionally, no structure shall exceed forty
(40) feet in height excluding chimneys and other accessory
structures not intended for human occupancy.

The trial court concluded that the ordinance is a “permissive zoning
ordinance,” see Town of Carroll v. Rines, 164 N.H. 523, 527 (2013), and that it
unambiguously prohibits the outdoor storage of construction material. In so
ruling, the trial court rejected the respondent’s argument that the “prohibitory”
language in the definition of the B-5 zoning district rendered the ordinance
ambiguous, and meant that any use within that zone that is not expressly
prohibited by the definition is permitted. The trial court reasoned that the
definition of the zoning district was “intended to aid the reader in
understanding the types of uses that are generally intended for the B-5 zoning
district, as well as the types of uses that are generally prohibited,” but that it
was “not intended to describe all of the uses that are not permitted within the
B-5 zoning district.” The trial court further reasoned that the language of the
B-5 definition was consistent with the table of uses, and concluded that, when
the provisions were read together, it was “clear that [the definition of the B-5
zoning district] does not permit all uses that it does not explicitly prohibit.”
Finally, the trial court observed that the respondent was not simply storing its
own possessions on the property, but was allowing the construction company,

3
a third party, to store its personal property there, and to pick up and drop off
construction material and equipment with commercial trucks.

The trial court rejected the respondent’s laches argument, reasoning that
any delay in bringing suit was reasonable, and that the respondent was not
prejudiced by the delay. As to reasonableness, the trial court observed that
“[b]eginning in April 2013, the [town had] repeatedly urged the respondent to
apply for a variance and site plan approval,” that the respondent had in fact
sought the requisite regulatory approval, and that, after withdrawing its
applications, the respondent had “assured the [town] on several occasions that
it intended to refile its variance application.” The trial court found that the
town had relied, at least in part, on the respondent’s multiple assurances in
not filing suit at an earlier time. With respect to prejudice, the trial court
found that “there is no reason to believe that any evidence has been lost or
destroyed as a result of the delay in this case,” that any economic impact in
having to store the material elsewhere was an impact to the construction
company, not the respondent, and that the construction company ultimately
benefitted by being able to store its material free of charge for many years.

On appeal, the respondent argues that the ordinance is ambiguous
because: (1) the provision stating that “[n]o building or land shall hereafter be
used or occupied and no building or part thereof shall be erected, moved or
altered unless in conformity with the regulations specified in this Ordinance for
the district in which it is located” does not use the term, “permitted”; (2) the
definition of the B-5 zoning district contains “prohibitory” language; and (3) the
ordinance does not contain any provision regulating outdoor storage. Because,
the respondent claims, the ordinance is ambiguous, and because the town did
not prove that the outdoor storage resulted in public harm, but see Boulders at
Strafford v. Town of Strafford, 153 N.H. 633, 639 (2006) (noting that, in
addressing due process challenge to zoning ordinance, reasonableness of the
zoning provision is presumed), the respondent argues that the trial court erred
by not resolving the alleged ambiguity in its favor. The respondent further
argues that, because its members are also the members of the construction
company, the companies necessarily formed a “joint venture,” and by treating
them as separate companies, the respondent contends that the trial court
misapplied the law of joint venture. Finally, the respondent argues that the
trial court was compelled to rule in its favor on its laches defense.

As the appealing party, the respondent has the burden of demonstrating
reversible error. Gallo v. Traina, 166 N.H. 737, 740 (2014). Based upon our
review of the trial court’s well-reasoned order, the respondent’s challenges to it,

4
the relevant law, and the record submitted on appeal, we conclude that the
respondent has not demonstrated reversible error.1 See id.

Affirmed.

Hicks, Bassett, Hantz Marconi, and Donovan, JJ., concurred.

Timothy A. Gudas,
Clerk

1 To the extent that the respondent argues that the ordinance is unconstitutional as applied to

its property, the record on appeal does not reflect that it raised this argument in the trial court.
See State v. Blackmer, 149 N.H. 47, 48 (2003). Nor is the argument adequately developed in
its brief. See id. at 49. Arguments raised in the notice of appeal that the respondent has not
briefed are waived. See id.

5