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City of Portsmouth v. Boyle

Supreme Court of New Hampshire

July 2, 2008

City of Portsmouth
v.
James Boyle, Trustee, 150 Greenleaf Avenue Realty Trust

UNPUBLISHED OPINION

The petitioner, City of Portsmouth (city), appeals an order of the trial court dismissing its petition for temporary and permanent injunctive relief and civil penalty. See RSA 676:15 (1996). The city argues that the trial court erred in: (1) construing the term "man-made drainage structure" found in the Portsmouth Zoning Ordinance; and (2) finding that the city failed to establish its right to injunctive relief. We affirm.

We will not disturb the findings of the trial court unless they lack evidentiary support or are erroneous as a matter of law. Sherryland v. Snuffer, 150 N.H. 262, 265 (2003). Legal conclusions, as well as the application of law to fact, are reviewed independently for plain error. Id. The interpretation of a zoning ordinance is a question of law, that we therefore review de novo. Blagbrough Family Realty Trust v. A & T Forest Prods., 155 N.H. 29, 41 (2007). The traditional rules of statutory construction generally govern our review; we construe the words and phrases of an ordinance according to the common and approved usage of the language. Id. When the language of an ordinance is plain and unambiguous, we need not look beyond the ordinance itself for further indication of legislative intent. Id. Nor will we guess what the drafters may have intended or add words that they did not see fit to include. Id.

The ordinance at issue in this case provides:

The Inland Wetlands Protection District is an overlay district that comprises the following areas within the City of Portsmouth: inland wetlands greater than ½ (one-half) acre in size. In all cases, the precise location of inland wetlands shall be determined by on-site inspection of soil types, vegetation and hydrology by a certified wetland scientist at a time when conditions are favorable for such determination. Man-made drainage structures including but not limited to detention ponds, retention ponds, and drainage swales shall not be considered part of the Inland Wetlands Protection District only to the extent that such structures do not require a buffer zone.

The trial court heard conflicting expert testimony, took a view of the property and found the testimony of the defendant's experts persuasive. See Bartlett Tree Experts Co. v. Johnson, 129 N.H. 703, 706 (1987) (trier of fact free to accept or reject expert's testimony in whole or in part when faced with conflicting expert testimony). The court found that "the ditches/drainage systems here at issue, while made up of wetlands, should be deemed 'man-made drainage structures, ' having the present function of controlling storm water and moving such water away from the property." See Husnander v. Town of Barnstead, 139 N.H. 476, 478-79 (1995) (noting added weight given to trial court's findings when view has been taken).

The city argues that the trial court erred in finding that the "historic ditching" on the property constituted man-made drainage structures. Rather, according to the city, the man-made drainage structures to which the ordinance refers are "those engineered systems for the treatment of storm water that runs off impervious surfaces." Had the city wished to limit the exemption in Section 10-605 to this technical definition, it was free to do so; the immediately preceding section, Section 10-604, contains other applicable definitions. In the absence of any such limiting language and in light of the trial court's findings concerning the function of the ditches, we find no error. Nothing would prevent the city from amending the ordinance in question to include the restrictive definition proffered on appeal.

Affirmed.

DUGGAN, GALWAY and HICKS, JJ., ...


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