Town of Chichester v. Shaun C. Fife

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2023-0369, Town of Chichester v. Shaun C.
Fife, the court on May 1, 2024, issued the following order:

The request of the plaintiff, the Town of Chichester (town), to dismiss this
appeal for “procedural deficiencies” is denied. 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 defendant,
Shaun C. Fife, appeals an order of the Superior Court (Kissinger, J.) granting
the town’s petition seeking declaratory and injunctive relief and the assessment
of civil penalties and fines for violating the town’s zoning ordinance, see RSA
676:15, 17 (2016), and ordering him to remove a “recreational camper” on
property zoned as “backlands” under the town’s zoning ordinance. We
construe the defendant’s brief to be arguing, in part, that the trial court erred
by finding that keeping the camper on the property violated the ordinance, and
by requiring him to remove it. The defendant also asserts that, in response to
the trial court’s order, he sold the property at issue, and he appends to his
brief a purchase and sale agreement that appears to be for the relevant lot and
a “camper on lot.” We vacate and remand.

At the outset, we note that the defendant has not included a transcript of
the evidentiary hearing held on the town’s petition. Accordingly, we assume
that the evidence supports the trial court’s factual findings, and we review its
decision for errors of law appearing on the face of its narrative order only. See
Bean v. Red Oak Prop. Mgmt., 151 N.H. 248, 250 (2004); Atwood v. Owens, 142 N.H. 396, 396-97 (1997). To the extent the town contends that, because
the defendant did not order a transcript, the record is insufficient to
demonstrate that he preserved his argument that the trial court erred by
ordering him to remove the recreational camper, see Bean, 151 N.H. at 250
(appealing party has burden to provide record demonstrating that appealed
issues are preserved), we disagree. According to the trial court’s narrative
order, the town argued that the defendant “is in violation of the Town’s Zoning
Ordinance by keeping” the camper on his property, and in ordering the
defendant to remove the camper, the trial court expressly analyzed the specific
zoning ordinance provisions relied upon by the town. Accordingly, the legality
of keeping the recreational camper on the property under the zoning ordinance
was squarely raised by the town and ruled upon by the trial court, and thus,
the trial court’s order itself demonstrates that the issue is preserved.

In ordering the defendant to remove the recreational camper from the lot,
the trial court found that keeping the camper on the property violated sections
2.04(f), 3.03(a), and 3.04 of the town’s zoning ordinance. Section 2.04(f)(i)
provides as follows with respect to the town’s “Backlands” zoning district:
 Purpose: Though the District is not depicted on the Town Zoning
Map, it is a Town-wide district consisting of land, which if
subdivided would not contain the minimum road frontage required
for a developable lot under this ordinance, may be subdivided only
if the plot and deed contain restrictions which clearly state that
such land is not a buildable dwelling lot and that such land
contains at least a fifty (50) foot Right-of-Way to a Town or State
road. The purpose of this provision is to allow for wood lots and
other agricultural uses such as farming; provided no structures,
other than those used for agricultural or forestry purposes, shall
be built thereon.

Permitted uses in the “backlands” zone under section 2.04(f)(ii) of the
ordinance are “[w]ood lots and related farming or forestry for homeowners use.”
Section 3.03(a) of the ordinance provides that “[t]he use of land for the
accommodation of manufactured housing including trailers and/or mobile
homes shall be permitted” so long as, inter alia, the “building lot [has] . . . a
minimum frontage of two-hundred (200) contiguous feet, on a State or Town
maintained highway.” Finally, section 3.04 provides that “[t]he location of
portable camps for a permanent residence is banned; Exceptions may be the
use of portable camps for logging operations.”

Based upon the evidence submitted at the evidentiary hearing, the trial
court found that the defendant’s property has no frontage on any Town or State
highway. Thus, the trial court determined that the property constitutes
“backlands,” a finding we assume to be supported by the evidence, see Bean,
151 N.H. at 250, and that use of the property as the defendant’s domicile, as
well as keeping the camper on the property, were not permitted uses. Although
residential use of the property may be prohibited under the above-quoted
provisions, nothing in those provisions prohibits merely keeping a “recreational
camper” on the property.

There is no claim by the town, or finding by the trial court, that the
defendant’s removeable “recreational camper” is in fact a “structure” that is
“built” upon the defendant’s property for purposes of section 2.04(f)(i) of the
ordinance. Moreover, section 3.03(e)(i) provides that, although the town’s
building inspector may permit a resident to “store[] or park[]” a “[s]ingle trailer[]
and/or mobile home[]” “on the premises of the owner” during “periods of non-
use,” “[r]ecreational trailers and vehicles are exempt” from the permitting
requirement. (Emphasis added.) Likewise, section 3.03(e)(ii) provides that,
while “temporary occupancy of a recreational vehicle outside of a licensed
campground” for more than 120 days per year is not allowed without a permit
from the building inspector, “[a] permit is not required for the storing or
parking of a recreational vehicle during periods of nonuse on the premises of
the owner.” (Emphasis added.) Accordingly, section 3.03 appears to expressly
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authorize the defendant to store the camper during periods of non-use without
having to obtain a permit from the building inspector.

The trial court’s order is silent as to the provisions of section 3.03 that
appear to expressly allow the storage of the defendant’s camper, or how any of
the provisions relied upon by the town prohibit the storage of a recreational
camper, as opposed to its use as a non-temporary residence. Ordinarily, we
would remand the case and direct the trial court to address these issues.
Nevertheless, it appears that the case may also be moot. “Generally a matter is
moot when it no longer presents a justiciable controversy because issues
involved have become academic or dead.” Londonderry Sch. Dist. v. State, 157
N.H. 734, 736 (2008) (quotation and ellipsis omitted).

Although the purchase and sale agreement, apparently entered into after
the defendant filed his appeal, is not part of the record, see Lake v. Sullivan, 145 N.H. 713, 717 (2001), if the defendant in fact sold the property while the
appeal was pending, the town’s entitlement to declaratory or injunctive relief
may be academic or dead. We note that the trial court “stay[ed] the imposition
of fines [under RSA 676:17] . . . provided that [the defendant] removes the
camper in accordance with this Order,” and that, to date, the trial court has
awarded the town neither civil penalties nor attorney’s fees. Under these
circumstances, the trial court should consider any evidence of the sale and
determine its impact, if any, on the case in the first instance. Accordingly, we
vacate the trial court’s order and remand for further proceedings consistent
with this order.

Vacated and remanded.

MacDonald, C.J., and Bassett, Hantz Marconi, Donovan, and Countway,
JJ., concurred.

Timothy A. Gudas,
Clerk

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