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Town of Atkinson v. Malborn Realty Trust & A.

August 17, 2012

TOWN OF ATKINSON
v.
MALBORN REALTY TRUST & A.



The opinion of the court was delivered by: Conboy, J.

a.m. on the morning of their release. The direct address of the court's home page is: http://www.courts.state.nh.us/supreme.

Argued: June 13, 2012

The respondents, Malborn Realty Trust and its trustee, Daniel Osborn, appeal an order of the Superior Court (McHugh, J.) that enjoined Osborn from occupying property in Atkinson because he lacks an occupancy permit and that imposed a civil penalty for this violation. See RSA 676:15 (2008), :17 (Supp. 2011). The petitioner, Town of Atkinson (Town), cross-appeals the trial court's failure to award it attorney's fees. See RSA 676:17, II. We affirm the trial court's issuance of the injunction, modify its imposition of civil penalties, reverse its denial of attorney's fees, and remand.

The trial court found the following facts. Before 2007, the subject property was a seasonal camp. In June 2007, the Town's zoning board of adjustment granted Osborn a variance to convert the property to year-round use and to construct a new three-bedroom home. One condition of the variance was that access to the property had to "meet the requirements of the Police and Fire Departments."

In 2008, Osborn applied for a building permit. The Town's fire chief reviewed the application and recommended that the building permit be conditioned upon the installation of a sprinkler system because the property had poor access to a class V highway. See RSA 229:5 (2009) (setting forth highway classification system). The building inspector adopted this recommendation, and, in May 2008, issued the conditional building permit.

On September 30, 2008, Osborn's wife, Margaret, met with the Town's fire chief to discuss the Osborns' plan to improve access to the property by constructing a new driveway. The fire chief agreed that a satisfactory driveway could eliminate the need for a sprinkler system.

In October 2008, the Osborns submitted a proposed plan to build a driveway with a 23% grade, which the Town immediately rejected. In subsequent meetings, the fire chief told Margaret that although the required grade was 8%, he would accept a driveway with a 10% grade. The Osborns never submitted a satisfactory driveway plan to the fire chief. Ultimately, without the fire chief's consent, they installed a driveway with a 13.7% grade. They did not install a sprinkler system. Because the home lacked the required sprinkler system, the Town declined to issue a certificate of occupancy for it. Nonetheless, the Osborns moved into the home on November 30, 2009. According to the Town's building code, it is unlawful to occupy a building without a certificate of occupancy.

On or about December 14, 2009, the Town served Osborn with notice that occupying the home violated the Town's building code. The notice stated that the Town could bring an enforcement action under RSA 676:15 and an action for civil penalties and attorney's fees under RSA 676:17. In March 2010, the Town filed such an action. Later that month, following a hearing on the Town's request for a preliminary injunction, the court ordered Osborn to vacate the premises. He and his family did so on July 1, 2010.

After conducting a bench trial and a view of the premises, the trial court:

(1) permanently enjoined Osborn from occupying the premises without a certificate of occupancy; (2) ruled that no certificate of occupancy could be issued until a sprinkler system is installed in the house; and (3) imposed a civil penalty of $109,725. The trial court also ruled that the Town was the prevailing party and was entitled to its reasonable attorney's fees pursuant to RSA 676:17, II. Although the court originally awarded the Town reasonable attorney's fees of $20,000, it later vacated this award in its entirety in response to the respondents' motion for reconsideration. This appeal and cross-appeal followed.

The respondents challenge the trial court's decision to issue the requested injunction and, alternatively, its calculation of the civil penalty. In its cross-appeal, the Town challenges the trial court's denial of its request for an award of reasonable attorney's fees. We first address the respondent's appeal.

I. Injunction

A. Standard of Review

It is within the trial court's sound discretion to grant an injunction after consideration of the facts and established principles of equity. N.H. Dep't of Envtl. Servs. v. Mottolo, 155 N.H. 57, 63 (2007). We will uphold the trial court's factual findings unless the evidence does not support them or they are erroneous as a matter of law. Rabbia v. Rocha, 162 N.H. 734, 738 (2011). "We will uphold the issuance of an injunction absent an error of law, an unsustainable ...


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