The opinion of the court was delivered by: Hicks, 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.
The respondent, Richard Townsend, appeals orders of the Superior Court (Wageling, J.): (1) granting summary judgment in favor of the petitioner, Town of Barrington (Town), on its claims that the respondent used his property as a campground and his barn as a dwelling without proper Town approvals; and (2) awarding attorney's fees to the Town. We affirm.
The following facts appear in the record and are recited for background purposes. Undisputed facts necessary to support summary judgment will be noted as such.
The respondent owns property at 43 Hall Road in Barrington. He is a recreational vehicle (RV) enthusiast and has lived, though the record suggests perhaps seasonally, in various RVs on the property. According to the respondent's pleadings and deposition, he originally established sites on the property to park his construction equipment. These sites had utility hook-ups that were later upgraded "to double for guests." The sites have metered electrical hook-ups, and some have water and/or sewer connections. The respondent stated in 2009 that his property had "10 full year round hook ups."
The respondent is a member of Family Motor Coach Association (FMCA), whose members, he asserts, "post stops around the country to visit." The respondent himself, for instance, posted an offer on the association's website in 2009, inviting friends and FMCA members to "visit at no charge," except for metered utilities. He testified at his deposition that he would sometimes have approximately fifty guests a year at his property, although, in 2009, he had only four couples in four motor homes stay at the site.
In September 2008, the motor home in which the respondent had been living sustained damage from an electrical fire rendering it uninhabitable. The respondent states that following the fire he moved into his barn, which he described as "adequate for emergency living quarters." The barn is a two-story structure with a workshop on the lower level and the respondent's office on the upper level. The barn has insulation, sheetrock, carpet, electricity, plumbing, two heating systems, and central air conditioning. The second floor also has restaurant kitchen equipment, a sink, a bed, a futon, a game table, and massage and fitness equipment.
In March 2009, the Town sent the respondent a notice of zoning violation/cease and desist order. The order noted the following violations, among others: (1) "[Y]ou have changed the use of your barn/shop to a dwelling unit which constitutes a violation of Article 15.4.1 [of the Town's zoning ordinance] Building Permit Required and Article 15.4.2 Certificate of Occupancy Required"; and (2) "[Y]ou have constructed a camp on said lot without benefit of a building permit and rent said camp" in "violation of Article 15.4.1 Building Permit Required and Article 15.4.2 Certificate of Occupancy Required as well as Article 3.1.1 Permitted Structures and Article 4.2.1 Standards for the GR and NR District (2) and (3)." The respondent replied that although he had not yet completed the repairs to his fire-damaged RV, he would "move the unfinished home from the barn to appease the town." He asserts that he had moved out of the barn by April 1, 2009.
The Town asserts that it sent a second letter to the respondent in May 2009, "reiterating the violations and notifying [him] that court action would be taken if he failed to come into compliance." It commenced that action in July by petition for preliminary and permanent injunctions, civil penalties, and attorney's fees. The respondent brought a number of counterclaims alleging, among other things, bad faith by the Town's code enforcement officer and police chief.
In February 2010, the Town filed a motion for summary judgment on two of the alleged code violations and on the respondent's counterclaims. The alleged violations at issue "were that the [respondent] used, and continues to use, his Property as a campground without proper approvals and that the [respondent] has used, and continues to use, his barn as a residential property without proper approvals." The trial court granted the Town's motion. The Town then moved for voluntary non-suit of its remaining claims without prejudice and for civil penalties and attorney's fees. The trial court granted the motions for non-suit and attorney's fees and denied the motion for civil penalties.
On appeal, the respondent argues that the trial court erred in granting summary judgment on the code violation issues because "[m]aterial issues of fact existed regarding [his] use of his property and barn." He also argues that the trial court erred in awarding attorney's fees to the Town. We will address these issues in turn.
In reviewing the trial court's grant of summary judgment, we consider the affidavits, and all inferences properly drawn from them, in the light most favorable to the non-moving party. If there is no genuine issue of material fact, and if the moving party is entitled to judgment as a matter of law, the grant of summary judgment is proper. We review the trial court's application of the law to the facts de novo.
Bates v. Vt. Mut. Ins. Co., 157 N.H. 391, 394 (2008) (citations omitted).
The respondent asserts that "the Town failed to prove that [he] was operating a non-residential campground business that required planning board approval. The Town interprets the respondent's argument to assert that "there was a disputed fact as to whether his campground use was commercial or non- commercial, and further[,] . . . that that disputed fact was material to the trial court's decision as to whether the use was non-residential." The Town then asserts that the trial court did not base its decision upon a finding that the use was commercial and, in fact, did not make such a finding. It further argues that whether the use was commercial or private is "not material, or even relevant."
We agree with the Town that the trial court did not consider the distinction between commercial and non-commercial use material to the determination of whether the use was non-residential. Rather, the court accepted the respondent's own descriptions of his property as a "legal private camping park" and a "Private Seasonal Recreational Camping Park." (Emphases added.) The court also found "there [was] no doubt" that the respondent had not submitted plans for site plan review of that use. It accordingly granted the Town summary judgment on its claim that the respondent used "his property as a campground without the proper approvals."
The Town apparently recognizes that the real issue is the propriety of "the trial court's legal determination that a recreational campground was a non-residential use under Section 3.1.6 of the zoning ordinance." It contends, however, that the respondent waived that issue by ...