New Hampshire Town and City
Regulating Salvage Facilities: Balancing Community and Business Interests
New Hampshire Town and City, September 2005
By Paul G. Sanderson, Esq.
Requirements surrounding the location and operation of salvage facilities frequently raise legal questions. When the State Legislature drafted the salvage facility laws, it attempted to balance two interests. First, it recognized that a “clean, wholesome, attractive environment" promotes the health and safety of its citizens. Such an environment is “essential to the maintenance and continued development of the tourist and recreational industry." Second, the Legislature understood that the maintenance of legal salvage facilities is a business and should be encouraged. These interests are hardly contradictory. Indeed, state and local governments have enacted regulatory schemes concerning the establishment and maintenance of salvage facilities that advance both goals. The following is a brief overview of the statutory requirements.
Q. What is a salvage facility?
A. Salvage facilities are often commonly called junkyards. For purposes of regulation, a “salvage facility," “junk yard" or “automotive recycling yard" (collectively, “salvage facilities") is broadly defined to include any establishment or place of business used for storing, buying or selling salvage. RSA 236:91, IV. Importantly, it includes any place where two (2) or more motor vehicles are stored that are no longer intended or in condition for legal use. RSA 236:112, I.
Q. Does the state have exclusive jurisdiction to regulate the location and operation of salvage facilities?
A. No. In New Hampshire, the Legislature has conferred the power to regulate salvage facilities to both the state and municipalities. RSA 236:90-:110 provides for state licensing of salvage facilities “adjacent to the interstate, federal aid primary, and turnpike systems." RSA 236:90. RSA 236:111-:129, in turn, governs municipal regulation of salvage facilities.
Q. Does municipal regulation of salvage facilities preempt local zoning?
A. No. Municipal regulation of salvage facilities does not preempt local zoning; local zoning may apply where RSA 236:111-:129 does not. “Absent a clear manifestation of legislative intent to preempt [a] field, the municipality may enact an ordinance which neither conflicts with State legislation nor is itself unreasonable." Paul Corey & Majestic Motors, Inc. v. Merrimack, 140 N.H. 426, 428 (1995), (quoting Lavallee v. Britt, 118 N.H. 131 (1978).
Q. What are the licensing procedures for opening a salvage facility?
A. Generally, a person cannot maintain a salvage facility unless the person has obtained from the local governing body (for example, the board of selectmen or major and aldermen) the following: (1) a license to operate a salvage facility business; and (2) a certificate of approval for the location of the salvage facility. RSA 236:114. At a minimum, the written application for these materials must contain a description of the land where the salvage facility is to be located, by reference to permanent boundary markers. In municipalities that have a zoning ordinance and a zoning board of adjustment (ZBA), an applicant must also submit a certificate from the ZBA attesting that the proposed location is not in derogation of existing zoning. RSA 236:115.
Q. Is the governing body required to hold a public hearing in connection with acting upon a salvage facility application?
A. Yes. Upon receipt of the application materials, the governing body is required to conduct a public hearing not earlier than two (2) and not more than four (4) weeks. It must provide the applicant with notice of the hearing via mail, postage prepaid. Further, notice must be given to the general public through publication in a newspaper with a circulation within the municipality at least seven (7) days before the hearing. RSA 236:116. During the hearing, the governing body must permit all persons, including the applicant, an opportunity to speak.
Q. What factors do the governing body consider in granting or denying a salvage facility application?
A. The law requires the governing body to consider the following:
- The suitability of the applicant, including his or her ability to comply with the fencing requirements or other reasonable regulations concerning the proposed salvage facility;
- Any convictions for any type of larceny or receiving of stolen goods;
- Applicant's proof of legal ownership or right to the use of the property;
- The nature and development of surrounding property, such as the proximity of churches, schools, hospitals, public buildings or other places of public gatherings;
- Whether the proposal will affect the public health, safety or morals by reason of offensive or unhealthy odors or smoke, or of other causes. RSA 236:117.
Additionally, the local governing body may take into account general aesthetic considerations and whether the proposed use will have a negative aesthetic impact on the surroundings. For example, the governing body may consider such factors as: the road the salvage facility would abut (and from which the facility may be seen); natural and artificial barriers protecting the facility from view; the proximity to established tourist and recreational areas or main access routes thereto; as well as the reasonable availability of other suitable sites. RSA 236:120.
Q. Irrespective of these factors, does the law prohibit the locating of salvage facilities in certain locations?
A. Yes. A license cannot be issued for any salvage facility within 660 feet from a Class I, II, III or III-a highway or within 300 feet from a Class IV, V and VI highway. RSA 236:118.
Q. When must the governing body render a decision on a salvage facility application?
A. Within two (2) weeks of the hearing, the governing body must make a finding regarding the approval or denial of the application, with notice to the applicant, postage prepaid. If approved, the governing body is required to issue the license, including the certificate of approval location.
Q. Once approved, does a salvage facility license need to be renewed?
A. Yes. Both the license and the certificate are effective until the following April 1. The approval is personal to the applicant and cannot be assigned. The annual license fee is $25 to be paid at the time the application is made and annually thereafter in the event of renewal. If the application is not granted, the fee shall be returned to the applicant. RSA 236:122. An applicant may renew his or her license upon payment of the annual license fee without a hearing, provided:
- All the provisions of the salvage facility statute have been complied with during the previous license period;
- The salvage facility has not become a public nuisance under the common law or RSA 236:119; and
- The applicant is not convicted of any type of larceny or receiving stolen property.
If the governing body refuses to issue a license, an applicant may appeal the denial to the superior court by writ of certiorari. RSA 236:121.
Q. Can a governing body require an applicant to put a fence around the salvage facility?
A. Yes. Prior to opening, a new salvage facility must be completely surrounded with a solidly constructed fence. The law mandates that the fence be a minimum of 6 feet in height and substantially screen the area. The gate must be closed and locked except during hours of operation or when the applicant or his or her agents are present. The applicant must store all motor vehicles and parts within the enclosure, except when removal is necessary. All wrecking or other work on motor vehicles and all burning shall be performed within the fenced area.
The governing body may reduce or eliminate the fencing requirements when natural geographic features (for example: topography, natural growth or other natural barriers) or other considerations accomplish the same purposes. However, any municipal citizen may apply for writ of certiorari to the superior court to review the action of the local governing body. RSA 236:123.
Q. Are pre-existing salvage facilities “grandfathered" and exempt from these salvage facility requirements?
A. Yes. A salvage facility which predates a municipality's adoption of the salvage facility statute is considered approved by the governing body and its owner is deemed suitable for the issuance of a license. Nevertheless, within 60 days from the local adoption of the salvage facility laws, the owner must furnish the governing body with the identical location information, which is required in an application, along with the license fee. Upon receipt of these materials, the governing body shall issue a license, and the owner must comply with all other provisions of the salvage facility statute including the fencing requirements. RSA 236:125.
Q. Are car dealerships exempt from the salvage facility requirements?
A. No. Both new and used car dealers are required to remove from their registered principal place of business any motor vehicles that fall within the RSA 236:112, I framework. Removal must be accomplished within 160 days from the date the motor vehicles are brought onto the premises. Any other dealer location within the same municipality is subject to the salvage facility laws if its operation qualifies as a salvage facility under the statutory definition contained in RSA 236:112. RSA 236:126.
Q. How does the public enforce the salvage facility laws?
A. The law provides that any salvage facility located or maintained in violation of RSA 236:111-:129 is a nuisance. Any prosecuting officer may abate the nuisance upon complaint. RSA 236:119. Further, any person who violates the salvage facility statute is guilty of a violation; each day of operation constitutes a separate offense. RSA 236:127. The governing body may sue to obtain an injunction to cease the illegal operation. If it declines to pursue such an enforcement action, the attorney general may obtain an injunction in the name of the state.
Finally, any property owner who is directly affected by the site of an illegal salvage facility may request, in writing, that the governing body take appropriate action. The written request must also be sent to the salvage facility owner. If the governing body does not, within 30 days, take appropriate action, the property owner may take judicial action to enjoin the operation of the salvage facility.