Understanding Code Enforcement

New Hampshire Town and City, October 2002

“There is a large manufacturing company doing business in an industrial zone in our community. Some of the residents of a neighboring residential zone have reported to our code enforcement officer that unsightly manufacturing materials have been stockpiled all over the site and that the noise from the facility has been keeping them awake at night. Upon review of the facility’s site plan approved by the planning board, the code enforcement officer has concluded that the facility has failed to utilize designated outside storage areas and has failed to plant the vegetation designed to mitigate the noise from the facility. The owner of the facility has refused to comply, despite numerous requests by the code enforcement officer in that regard.”

Q. What are our options in enforcing the site plan?
A. Pursuant to RSA 676:17, site plan violations may be prosecuted criminally. A violator will be guilty of a misdemeanor if a natural person (i.e., a human being) or guilty of a felony if any other person (i.e., a corporation, LLC, trust, etc.). In addition to the fines and penalties imposed under the criminal statutes, a violator is subject to a civil penalty not to exceed $275 for each day that such violation continues after the conviction date or after the violator first receives written notice of the violation from the municipality, whichever is earlier.

Q. How do we commence the enforcement process?
A. Prior to commencing an enforcement action, the violator should be served with a written notice of violation. The notice is necessary to start the clock running on civil penalties. The notice should include, at a minimum:

• the precise regulation, ordinance, provision, specification or condition which is being violated;
• the facts constituting the violation, including the date of any inspection from which such facts were ascertained; and
• the corrective action required, including a reasonable time within which such action shall be taken.

If the violator refuses to take corrective action, the code enforcement officer, building inspector or other local official with the authority to enforce local codes, ordinances or other land use regulations may commence an action in the district or superior court. Your town attorney will be able to help you with the details of the paperwork.

Q. How do we determine in which court the case should be filed?
A. This depends on who is the violator, the seriousness of the violation(s) and the remedy you are seeking. The district court has jurisdiction over the prosecution of local land use violations charged as misdemeanors and/or those where the civil penalty sought does not exceed $25,000. The maximum penalty for a Class A misdemeanor is a term of imprisonment not to exceed one year and/or a fine not to exceed $2,000. This fine is in addition to any civil penalty imposed. The superior court has jurisdiction over the prosecution of local land use violations charged as felonies and/or those where the civil penalty sought exceeds $25,000. The maximum criminal fine for a corporation that is guilty of a felony is $100,000. Again, the fine is in addition to any civil penalty of $275 per day for each day that the violation(s) persists. Local land use violation cases that are charged as misdemeanors may also be brought in superior court, and this should be done if the civil penalty sought exceeds $25,000.

Q. How is the civil penalty calculated?
A. In our hypothetical situation set forth above, the manufacturing company has at least two violations: improper outside storage of materials and failure to plant the vegetation buffer. If one assumes a civil penalty of $275 per day for each violation, the total civil penalty would be $550 per day. The clock starts running on the day that the violator receives written notice of the violation. If the town does not give written notice of the violation but goes straight to court, the clock starts running on the civil penalty on the conviction date. Therefore, it is always wise to provide written notice and start the clock on civil penalties as early as possible. Since the ultimate goal of any enforcement action is to gain compliance, the threat of significant civil penalties is often an effective means to that end.

The wheels of justice turn slowly in New Hampshire. As a result, your case against the manufacturing company may not go to trial for several months after it was filed. If the violation(s) persist during the pendency of the case, the civil penalties can become quite large (especially if the notice of violation was served a month or two prior to filing the case in court). If we assume it has been five months (approximately 150 days) between the time the manufacturing company received written notice of the violations and the day of the trial, a finding of guilty could result in civil penalties in the amount of $82,500! (150 days x $550 = $82,500). That penalty is in addition to any criminal fine imposed by the court! Obviously, if you have a violator with multiple violations or a violator who you know is not going to comply prior to trial, you should prosecute the case in superior court.

Q. Will the court award the town its costs and attorney’s fees incurred in prosecuting the case?
A. Maybe. The statute provides that if the municipality is the prevailing party in the case, the court may award costs and attorney’s fees. The word “may” is permissive, not mandatory. The court does not always award costs and fees to the town if it prevails. Many times it depends upon the seriousness of the violation(s) and how outrageous the violator’s conduct has been. Keep an accurate record of all monies spent on the case including inspection fees, expert fees, investigatory expenses, witness fees, attorney’s fees and any other out-of-pocket expenses.

Q. Are there any other options available to stop land use violations short of criminal prosecution?
A. Yes. These include injunctions (RSA 676:15), cease and desist orders (RSA 676:17-a) and local land use citations (RSA 676:17-b). Look for detailed discussions of these enforcement mechanisms in future issues of Town & City. Also, the New Hampshire Bar Association publishes a Guide to District Court Enforcement of Local Ordinances and Codes that provides a more detailed description of the process.