Town Allowed to Regulate Local Excavation in Reissued Supreme Court Opinion

By: Heather Devine, Esq.

In January 2013, the New Hampshire Supreme Court reissued its opinion in Town of Carroll v. Rines, 164 N.H. 523 (2013) on the issue of the scope of a Town’s ability to regulate a landowner’s excavation activities. The Court’s initial opinion, issued November 9, 2012 and withdrawn shortly thereafter, held that the Town could not require the landowner to obtain a variance before excavating his land for highway construction purposes. The Court based that opinion on the doctrine of preemption, which states, in essence, that municipal legislation is invalid if it is inconsistent with State law. The case involved RSA 155-E (the “Statute”), the State statute that governs excavation permits. In its original opinion, the Court held that, because RSA 155-E establishes a comprehensive set of State restrictions on excavation activities, and specifies that excavations for highway construction purposes are exempt from the State permitting process, the Town ordinance that required the landowner to obtain a variance in order to excavate his land for such purposes “frustrate[d] State authority” and was, therefore, preempted by the Statute.

In its reissued opinion, the Court discusses a provision of the Statute that it overlooked in the first decision. In particular, the Court noted that RSA 155-E:2, IV(b) specifically provides that, although excavations for highway purposes do not require State permits, “such excavations shall not be exempt from local zoning ordinances . . . or from the operations and reclamation standards as expressly set forth in [this chapter] which express standards shall be the sole standards with which such excavations must comply . . . .” The Court held that, because the plain language of the Statute provides that the scope of State preemption with respect to this particular type of exempt excavation is limited to operation and reclamation standards, the Town’s ordinance requiring the landowner to obtain a variance was, in fact, valid and enforceable.

The holding in this case provides further clarification of prior case law regarding the scope of activities that are and are not pre-empted by the Statute. In the case of Arthur Whitcomb, Inc. v. Town of Carroll, 141 N.H. 402 (1996), the Court appeared to hold that the legislature intended for RSA 155-E to generally preempt all local regulation of the field of excavation. Then, in Guildhall Sand & Gravel v. Town of Goshen, 155 N.H. 762 (2007), the Court distinguished between the “minimum standards” in the Statute that apply to excavations that require a permit and the “express standards” that apply to excavations that do not require a permit (also called permit-exempt excavations). The Court in Guildhall held that towns were free to impose more stringent regulations than the “minimum standards” to any excavations that require permits, but could not impose more stringent regulations than the “express standards” in the Statute to permit-exempt excavations.

In the Rines decision, the Court further clarified that some local regulation of permit-exempt excavations is also permitted where the Statute expressly so provides (as it did in that case). Under this new holding, towns remain free to regulate non-exempt excavations and may now also regulate permit-exempt highway excavations where the Statute permits them to do so.