Joy Street, LLC v. Town of Chesterfield

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2021-0383, Joy Street, LLC v. Town of
Chesterfield, the court on May 2, 2023, issued the following
order:

The court has reviewed the written arguments and the record submitted
on appeal and has determined to resolve the case by way of this order. See
Sup. Ct. R. 20(2). The plaintiff, Joy Street, LLC, appeals a decision of the
Superior Court (Ruoff, J.) affirming a decision of the Town of Chesterfield’s
Zoning Board of Adjustment (ZBA). We affirm.

I

The following facts are drawn from the certified record or are otherwise
supported by the record. This case concerns a deck and walkways constructed
out of “permeable pavers” located within the Chesterfield residential and
Spofford Lake zoning districts. In April 2019, the plaintiff received a permit
from the New Hampshire Department of Environmental Services (NHDES) to
replace 504 square feet of deck and walkway with permeable pavers.
Thereafter, the plaintiff installed additional permeable pavers, increasing the
total square footage of pavers on the property to 2,071 square feet. NHDES
inspected the installation on October 15, 2019, and on November 21, 2019,
granted a permit allowing the plaintiff to “retain impacts associated with the
installation of 2,071 square feet of pervious permeable patios and walkways.”

On October 17, 2019, the Town of Chesterfield (the Town) notified the
plaintiff that, under the relevant zoning ordinances, the pavers were
impermeable structures which, together with the existing structures on the lot,
exceeded the allowed impervious lot coverage. On November 7, 2019, the Town
issued a “Notice of Violation and Cease and Desist Order” for violation of the
Chesterfield Zoning Ordinance (CZO), notifying the plaintiff that it would be
subject to statutory fines for each day that “violations continue.” Specifically,
the Notice advised that only the initial 504 square feet of pavers were permitted
and all others needed to be removed as violative of the 20% coverage limitation
under CZO 203.4. The plaintiff promptly filed an “Appeal From an
Administrative Decision” seeking to have the November 7 decision reversed.

The ZBA held a hearing to review the plaintiff’s appeal on February 18,
2020. During the hearing, the ZBA heard testimony on the nature of the
pavers. There was also discussion about the maintenance and efficacy of the
product over its 25-year lifespan. The ZBA also discussed the definition of
“impermeable” under the CZO, the reason that pavers like the ones at issue do
not fall under that definition, and the proper process for receiving permitting
from the Town.

The ZBA continued the hearing to its May 12, 2020 meeting. The scope
of the May hearing was limited to whether the definition of “impervious” under
the Shoreland Water Quality Protection Act (Shoreland Protection Act), RSA ch.
483-B (2013), or the CZO controlled. There was no dispute that under the CZO
the pavers are considered “impermeable coverage” and that the construction
brought the total impermeable coverage over the “20% of the area of the lot”
allowed by the ordinance. Thereafter, the ZBA continued the hearing to June
11, 2020. Most of the discussion during the June 11 hearing concerned
whether the definition in the Shoreland Protection Act or the CZO controlled
under the circumstances. After some discussion about the evidence presented
during the three hearings, the ZBA unanimously voted to deny the plaintiff’s
appeal. The plaintiff moved for rehearing, which was denied.

The plaintiff appealed the ZBA’s decision to the superior court. The trial
court first addressed whether the definition of “impermeable” contained in RSA
chapter 483-B preempts the definition contained in the CZO and, therefore,
controls. The court concluded that RSA chapter 483-B does not preempt the
CZO because RSA 483-B:3, II expressly “allows stricter local laws to control
over state laws,” and RSA 483-B:8 “encourages towns to ‘adopt land use
control ordinances [relative] to all protected shorelands which are more
stringent than the minimum standards [contained] in [RSA chapter 483-B].’”
(Quoting RSA 483-B:8, I.) As a result, the trial court determined that the ZBA
was correct in concluding that the more stringent definition of “impermeable”
under the ordinance applied. It ultimately affirmed the decision of the ZBA,
finding that the plaintiff’s “pavers were clearly impermeable under [CZO] 203.6
and thus the lot exceeded the total allowable impermeable coverage.” This
appeal followed.

II

Our review in zoning cases is limited. Dietz v. Town of Tuftonboro, 171
N.H. 614, 618 (2019). The party seeking to set aside the ZBA’s decision bears
the burden of proof on appeal to the trial court. Id. The factual findings of the
ZBA are deemed prima facie lawful and reasonable, and will not be set aside by
the trial court absent errors of law, unless the court is persuaded, based upon
a balance of probabilities, on the evidence before it that the ZBA’s decision is
unreasonable. Id. The trial court’s review is not to determine whether it agrees
with the ZBA’s findings, but to determine whether there is evidence upon which
they could have been reasonably based. Id. The trial court reviews the ZBA’s
statutory interpretation de novo. Id. We will uphold the trial court’s decision
on appeal unless it is not supported by the evidence or is legally erroneous. Id.
We review the trial court’s statutory interpretation de novo. Id.

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 III

The present dispute concerns the relationship between RSA chapter 483-
B and CZO 203.6.1 Resolution of this dispute requires us to engage both in
statutory interpretation and the interpretation of a zoning ordinance. The
interpretation of a statute is a question of law, which we review de novo. Avery
v. Comm’r, N.H. Dep’t of Corr., 173 N.H. 726, 733 (2020). In matters of
statutory interpretation, we first look to the language of the statute itself, and,
if possible, construe that language according to its plain and ordinary meaning.
Id. We interpret 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. We construe all parts of a statute together to effectuate its
overall purpose and to avoid an absurd or unjust result. Id. We do not
consider words and phrases in isolation, but rather within the context of the
statute as a whole, which enables us to better discern the legislature’s intent in
light of the policy or purpose sought to be advanced by the statutory scheme.
Id. Absent an ambiguity, we will not look beyond the language of the statute.
Id.

Likewise, the interpretation of a zoning ordinance is a question of law
that we review de novo. Batchelder v. Town of Plymouth Zoning Bd. of
Adjustment, 160 N.H. 253, 256 (2010). The traditional rules of statutory
interpretation generally govern our review. Id. Thus, the words and phrases of
an ordinance should be construed according to the common and approved
usage of the language. Id. When the language of an ordinance is plain and
unambiguous, we need not look beyond the ordinance itself for further
indications of legislative intent. Id. Moreover, we will not guess what the
drafters of the ordinance might have intended, or add words that they did not
see fit to include. Id. at 256-57. We determine the meaning of a zoning
ordinance from its construction as a whole, not by construing isolated words or
phrases. Id. at 257.

The plaintiff asserts that, although it “does not now contend or ever
contended that the enactment of RSA 483-B preempted the impervious or
impermeable coverage issue,” the zoning ordinance “expressly included wording
that preempts those provisions in its ordinance which conflict with the
provisions of RSA 483-B.” The plaintiff’s argument relies on language in CZO
203.6, which states in relevant part:

1 The parties have not provided a copy of the zoning ordinance for our review; nonetheless, they

do not dispute that the language articulated by the trial court is accurate. For this reason, we
rely on the ordinance language provided by the trial court wherever applicable.

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 In the Spofford Lake District, all uses shall first be regulated by the
Shoreland Protection Act (RSA 483.B — see Appendix B) and then
permitted in compliance with the existing residential district . . . .

The plaintiff relies on the language in CZO 203.6 — “all uses shall first be
regulated by the Shoreland Protection Act” — to support its assertion that the
Town has created an ordinance that allows the statute to preempt its own
regulation. The plaintiff interprets this language to mean that wherever the
language of the municipal regulation is in conflict with the standards contained
in RSA chapter 483-B, the standard contained in the statute preempts the
municipal ordinance. We disagree.

The preemption doctrine flows from the principle that municipal
legislation is invalid if it is repugnant to, or inconsistent with, state law. Girard
v. Town of Plymouth, 172 N.H. 576, 585 (2019). State law impliedly preempts
local law when there is an actual conflict between the two. Id. Unless the state
statute provides otherwise, a conflict resulting in preemption exists when a
municipal ordinance or regulation permits that which a state statute prohibits
or vice versa. Id. Moreover, even when a local ordinance does not expressly
conflict with a state statute, it will be preempted when it frustrates the
statute’s purpose. Id. Because preemption is essentially a matter of statutory
interpretation and construction, whether a state statute preempts local
regulation is a question of law, which we review de novo. Id.

RSA chapter 483-B sets forth “minimum standards necessary to protect
the public waters of the state of New Hampshire.” RSA 483-B:2. These
standards concern “the subdivision, use, and development of the shorelands of
the state’s public waters.” Id. Reflecting a town’s general regulatory authority
over land use in its municipality, see RSA 674:16, II (2016) (“The power to
adopt a zoning ordinance under this subdivision expressly includes the power
to adopt innovative land use controls.”), RSA chapter 483-B contains an
express grant of authority allowing municipalities to “adopt land use control
ordinances relative to all protected shorelands which are more stringent than
the minimum standards contained in this chapter.” RSA 483-B:8, I. Moreover,
RSA chapter 483-B provides that “[w]hen the standards and practices
established in this chapter conflict with other local or state laws and rules, the
more stringent standard shall control.” RSA 483-B:3, II.

The plaintiff contends that the zoning ordinance mandates that RSA
chapter 483-B controls wherever the statute and ordinance conflict; however,
nothing in the language of CZO 203.6 supports this position. Furthermore, the
Shoreland Protection Act itself expressly allows the municipality to more
stringently regulate land use, RSA 483-B:8, I, and expressly states that
whenever there is conflict between the statute and the local authority “the more
stringent standard shall control,” RSA 483-B:3, II. This express grant of
authority resolves any express or implied conflict between the statute and the

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ordinance. As a result, we conclude that RSA chapter 483-B does not preempt
the municipal regulations, either by its own terms or by the terms expressed in
CZO 203.6.

No argument has been raised that the zoning ordinance’s definition is
arbitrary or unreasonable. Nor is there any dispute that, under the CZO, the
pavers are considered “impermeable coverage” and that the installation of the
pavers brought the total impermeable coverage over the “20% of the area of the
lot” allowed by the CZO. As a result, we conclude that the additional pavers
installed were not permitted. For this reason, we conclude that the trial court
did not err in affirming the ZBA decision.

Affirmed.

MACDONALD, C.J., and HICKS, BASSETT, HANTZ MARCONI, and
DONOVAN, JJ., concurred.

Timothy A. Gudas,
Clerk

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