City of Rochester v. Corpening

Galway, J. The petitioner, City of Rochester (city), appeals an order of the Superior Court (Fauver, J.) denying its request for civil penalties pursuant to RSA 676:17, 1(b) (1996) (amended 2005), and granting respondent George Blaisdell’s motion to reconsider the court’s remedy regarding certain motor vehicle junkyard violations. We affirm. The record supports the following facts. Respondent James Corpening owns two adjoining properties located at 788 and 794 Portland Street in Rochester. Blaisdell resides at 794 Portland Street and Corpening contends that Blaisdell is supposed to maintain both properties. By letter dated June 5, 2003, the city notified the respondents that the condition of the properties was in violation of: (1) various provisions of the 2000 International Property Maintenance Code, which mandates the *572 maintenance of clean, sanitary and safe premises and requires the proper storage and removal of rubbish; (2) section 42.14(E)(3) of the city’s General Ordinances relative to the maintenance of motor vehicle junkyards (General Ordinances of the City op Rochester § 42.14(E)(3)); (3) RSA 236:114 (1993) governing State licensing requirements for motor vehicle junkyards; and (4) section 42.14(c)(6) of the city’s General Ordinances relative to the operation of flower and plant nurseries and greenhouses (General Ordinances of the City op Rochester § 42.14(c)(6)). When the use of the properties did not change, the city sought injunctive relief, civil penalties and attorney’s fees pursuant to RSA 676:17. ■ In January 2005, after a two-day bench trial, the trial court issued an order that summarized the condition of the properties as follows: While the court has endeavored to describe the condition of the properties, any description falls short, with the pictures themselves speaking volumes about the condition. Simply put, the grounds surrounding the houses are deplorable and, in addition to being unsightly, pose an obvious health and safety risk in a residential neighborhood. Among other things, the trial court found that the respondents were operating an unlicensed motor vehicle junkyard in violation of section 42.14(E)(3) of the city ordinances and RSA 236:114. Specifically, the trial court found that “[a] boat, a camping trailer, a blue truck, a backhoe, and a white car are located on the properties.” After noting that there were at least two unregistered motor vehicles on the property, the trial court found that both the backhoe tractor and the blue pickup truck were no longer intended for use and ordered the respondents to “bring the •property into conformance with these regulations” by removing the backhoe, the blue pickup truck, and “all but one of the other unregistered vehicles that may be on the property.” The trial court denied the city’s request to impose civil penalties pursuant to RSA 676:17, reasoning that the imposition of fines would make it financially difficult for the respondents to bring the properties into conformity with the terms of its order. The. city moved for reconsideration, requesting that the trial court, among other things, reverse its decision not to impose statutory civil penalties against the respondents. The city asserted that, pursuant to RSA 676:17, I, the penalties were mandatory given the trial court’s rulings regarding the respondents’ violations of various city ordinances and State statutes. In the alternative, the city asked the trial court to impose the statutory civil penalties, but suspend their imposition for sixty days, *573 thereby giving the respondents time to bring the properties into compliance with the trial court’s order. In his motion to reconsider, Blaisdell argued, in pertinent part, that by registering all motor vehicles on the property, any violations regarding the motor vehicle junkyard would be cured. He requested the court to modify its order accordingly. The trial court ruled that it had properly declined to impose civil penalties under RSA 676:17. After reviewing both the city ordinance and applicable State statute, the trial court also ruled, “To be deemed a motor vehicle junkyard, the property must contain two or more unregistered motor vehicles which are not intended for or in condition for legal use on the public highways.” Thus, the trial court found that Blaisdell “can either remove or register the offending vehicles to bring his property into compliance with the motor vehicle junkyard regulations.” On appeal, the city asserts the trial court erred by: (1) failing to impose statutory civil penalties it contends are mandatory under RSA 676:17,1(b); and (2) ruling that Blaisdell could remedy the State and local motor vehicle junkyard violations by registering the unregistered vehicles that were located on the properties. We defer to the trial court’s findings of fact if they are supported by the evidence and are not erroneous as a matter of law. Franklin v. Callum, 146 N.H. 779, 781 (2001). We review the trial court’s statutory interpretation de novo. Foote v. Manchester Sch. Dist., 152 N.H. 599, 601 (2005). We are the final arbiter of legislative intent as expressed in the words of the statute considered as a whole. Id. We first examine the language of the statute and ascribe the plain and ordinary meanings to the words used. Carignan v. N.H. Int’l Speedway, 151 N.H. 409, 419 (2004). We interpret statutes in the context of the overall statutory scheme and not in isolation. Id. Moreover, the traditional rules of statutory construction generally govern our review of ordinances. See Harrington v. Town of Warner, 152 N.H. 74, 79 (2005). I. Civil Penalties As a preliminary matter, we note that throughout the litigation at the trial court level and on appeal, the basis of the city’s claim for the imposition of civil penalties has been RSA 676:17, I, and not the penalty provisions in the city’s general ordinances. Although the city references sections 42.25(b) and 40.12 of the city’s general ordinances in its brief, it did not rely upon these provisions in the trial court and did not develop its argument regarding them either in its brief or at oral argument. Therefore, we decline to address them. See Franklin v. Town of Newport, 151 N.H. 508, 509 (2004). *574 The version of RSA 676:17,1, relevant to this case provided in pertinent part: I. Any person who violates any of the provisions of this title, or any local ordinance, code, or regulation adopted under this title, or any provision or specification of any application, plat, or plan approved by, or any requirement or condition of a permit or decision issued by, any local administrator or land use board acting under the authority of this title: (b) Shall be subject to a civil penalty not to exceed $100 for each day that such violation is found to continue after the conviction date or after the date on which the violator receives written notice from the municipality that he is in violation, whichever is earlier. RSA 676:17,1(b) (emphasis added). The city contends that the use of the word “shall” is a command, requiring mandatory enforcement. While the city concedes that the trial court has discretionary authority to tailor the imposition of the statutory penalty on a case-by-case basis, it argues that the trial court must impose some penalty. “The intention of the Legislature as to the mandatory or directory nature of a particular statutory provision is determined primarily from the language thereof.” Appeal of Rowan, 142 N.H. 67, 71 (1997) (quotation and citation omitted). The general rule of statutory construction is that “the word ‘may5 makes enforcement of a statute permissive and that the word ‘shall’ requires mandatory enforcement.” Town of Nottingham v. Harvey, 120 N.H. 889, 895 (1980). Nevertheless, in the instant case, the word “shall” is modified by the phrase “be subject to,” which affects the overall meaning of the clause. See Dancart Corp. v. St. Albans Rubber Co., 124 N.H. 598, 602 (1984) (interpreting “shall be subject to” in the context of a contractual forum selection clause); Strafford Technology v. Camcar Div. of Textron, 147 N.H. 174, 176 (2001) (interpreting “shall be determined by” in the context of a contractual forum selection clause). In Dancart, the parties to a contract action between a New Hampshire corporation and an English corporation disputed the meaning of a forum selection clause that stated: “[The contract] shall be subject to the jurisdiction of the English Courts.” Dancart, 124 N.H. at 600 (emphasis added). In that case, we declined to interpret this provision as a mandate of exclusive jurisdiction in the English Courts. Id. at 602 . Instead, we concluded that the clause “shall be subject to” was a grant of authority *575 conferring non-exclusive jurisdiction in the English Courts. Id. Thus, we interpreted the phrase “be subject to” as modifying the “mandatory character” of the word “shall.” Id. Similarly, in the context of the instant case, we interpret the clause “shall be subject to” as granting the trial court the authority to impose the statutoiy penalties set forth in RSA 676:17,1(b) rather than the obligation, to impose such penalties. Thus, RSA 676:17, 1(b) grants the trial court the authority to determine whether or not to impose a penalty and the amount of the penalty should it choose to impose one. See Town of Nottingham v. Newman, 147 N.H. 131, 134-35 (2001) (affirming trial court’s imposition of civil penalties pursuant to RSA 676:17,1(b) based upon a lower rate than that requested by the town after considering the defendants’ financial condition and the totality of the circumstances). Accordingly, we reject the city’s argument that imposition of a statutory penalty was mandatory. II. Motor Vehicle Junkyard Violation The city asserts that the trial court erred in its interpretation of section 42.6(a)(32) of the city ordinance and RSA 236:112, 1(c)(1) (Supp. 2005). Specifically, the city argues that even if the vehicles were registered, they would still not be intended for, or in condition for, legal use on the public highways under both the State statute and the city’s ordinance, and the property, therefore, would still be an unlicensed motor vehicle junkyard under RSA 236:114. Blaisdell counters that pursuant to RSA 236:124 (1993), the city’s ordinance defining motor vehicle junkyards controls because it conflicts with the statutory definition of motor vehicle junkyard. He contends that the city’s ordinance requires that there be two or more vehicles stored on the property which are both unregistered and “no longer intended or in condition for legal use on public highways” before the property constitutes a motor vehicle junkyard. While he acknowledges that RSA 236:112,1(c)(1) contains no requirement that the offending vehicles be unregistered, he argues that the city’s ordinance controls. Our determination rests upon an interpretation of both RSA 236:112, 1(c)(1) and section 42.6(a)(32) of the city ordinance and the relationship between the two. RSA chapter 236, entitled, “Highway Regulation, Protection and Control Regulations,” contains many subdivisions, one of which is entitled, “Motor Vehicle Recycling Yards and Junk Yards.” RSA 236:111-:129 (1993 & Supp. 2005). RSA 236:114 requires a person who is operating, establishing or maintaining a junkyard to obtain a license to operate a junkyard business and a certificate of approval for the location of the junkyard. For the purposes of this subdivision, RSA 236:112 defines a “junk yard” as including, in pertinent part: *576 Motor vehicle junk yards, meaning any place ... where the following are stored or deposited in a quantity equal in bulk to 2 or more motor vehicles: (1) Motor vehicles which are no longer intended or in condition for legal use according to their original purpose____ RSA 236:112,1(c)(1). However, the applicable city ordinance defines a motor vehicle junkyard as, in pertinent part: Any business and any place of storage or deposit, whether in connection with another business or not, which has stored or deposited two (2) or more unregistered motor vehicles which are no longer intended or in condition for legal use on the public highways____ General Ordinances of the City of Rochester § 42.6(a)(32). In order to qualify as a motor vehicle junkyard under the city ordinance, the property must contain two or more vehicles that are both unregistered and no longer intended for legal use on the public highways. Id. Thus, section 42.6(a)(32) effectively makes it more difficult for a property to be classified as a motor vehicle junkyard because it contains an extra requirement not present in the State statute. We, therefore, conclude that there is an actual conflict between RSA 236:112, 1(c)(1) and section 42.6(a)(32). See N. Country Envtl. Servs. v. Town of Bethlehem, 150 N.H. 606, 611 (2004) (explaining that “[a] conflict exists when a municipal ordinance or regulation permits that which a State statute prohibits or vice versa”). RSA 236:124, “Effect of Local Ordinances,” provides: This subdivision is not in derogation of zoning ordinances or ordinances for the control of junk yards now or hereafter established within the proper exercise of police power granted to municipalities, but rather is in aid thereof. Specific local ordinances shall control when in conflict with this subdivision. (Emphasis added.) Despite the city’s contrary assertion, we conclude that RSA 236:124 applies to all statutes contained in the subdivision of RSA chapter 236 dealing with “Motor Vehicle Recycling Yards and Junk Yards.” The plain language of RSA 236:124 indicates that there was no legislative intent for State law to preempt local ordinances and comprehensively regulate this particular field. See JTR Colebrook v. Town of Colebrook, 149 N.H. 767, 770 (2003) (explaining preemption doctrine). To *577 the contrary, the express language of RSA 236:124 provides that State statutes in this particular field are intended to aid local ordinances. Thus, the city’s ordinance, section 42.6(a)(32), controls over the conflicting statutory provision set forth in RSA 236:112,1(c)(1). We are also not persuaded by the city’s assertion that “allowing Mr. Blaisdell to escape the City violation merely by registering the vehicles would defeat the purpose of Chapter 236 of the State legislative scheme,” as set forth in RSA 236:111. By complying with section 42.6(a)(32) of the city’s ordinance, Blaisdell would no longer be operating an unlicensed motor vehicle junkyard on the properties, which supports the underlying purpose of RSA chapter 236. Moreover, even assuming that the city ordinance is a less effective method of serving the purposes set forth in RSA 236:111, the legislature has specifically authorized municipalities to enforce less protective ordinances. If the legislature had intended RSA 236:111-:129 to provide minimum standards binding upon all municipalities, it could have specifically so stated. See RSA 485-C:20 (2001). Accordingly, we conclude that the trial court did not err when it denied the city’s request for civil penalties pursuant to RSA 676:17 and granted, in part, Blaisdell’s motion to reconsider its remedy for the motor vehicle junkyard violations. Affirmed. Dalianis, Duggan and Hicks, JJ., concurred; Broderick, C.J., dissented.