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Town of Bartlett v. Furlong

Supreme Court of New Hampshire

September 22, 2015

Town of Bartlett
Edward C. Furlong, III d/b/a Lil' Man Snowmobile Rentals

 Submitted April 9, 2015

3d Circuit Court -- Conway District Division.

Donahue, Tucker & Ciandella, PLLC, of Exeter ( Christopher T. Hilson on the brief), for the plaintiff.

Edward C. Furlong, III, self-represented party, by brief.

LYNN, J. DALIANIS, C.J., and HICKS, CONBOY, and BASSETT, JJ., concurred.


Page 222

Lynn, J.

The defendant, Edward C. Furlong, III, appeals an order of the Circuit Court (Albee, J.) awarding judgment in favor of the plaintiff, the Town of Bartlett (Town), in a zoning enforcement action. See RSA 676:17 (Supp. 2014). The defendant's primary argument on appeal is that the trial court exceeded its jurisdiction by imposing a fine in excess of $25,000, but he also raises various collateral claims of error. Finding his arguments lacking in merit, we affirm the judgment of the trial court.


The pertinent facts are as follows. The defendant owns property in Bartlett, on which he began renovation work in the fall of 2008. The Bartlett Board of Selectmen notified him -- by letter dated October 17, 2008, by cease and desist notice dated November 7, 2008, and in person at a board of selectmen meeting on November 7, 2008 -- that he needed a building permit for the renovations. The cease and desist notice informed the defendant that he had violated Bartlett's zoning ordinance, that he must cease all construction, and that he had the right to appeal to the Bartlett Zoning Board of Adjustment. Thereafter, the defendant submitted two incomplete applications for a building permit. Each time, the Town notified him in writing that the applications were insufficient and explained what additional information was needed; however, the defendant did not submit further information and completed the renovation work without a permit. On December 12, 2008, the Board of Selectmen filed a land use citation complaint in the district court, which advised the defendant that he could be fined $275 for the

Page 223

first day and $550 for every day thereafter that the violation continued.

The defendant then filed a motion to dismiss. After a hearing, the trial court dismissed the land use citation on August 17, 2009, ruling that the zoning ordinance was unconstitutional. The Town appealed to this court, and by order of January 5, 2011, we reversed the trial court's decision in part, vacated it in part, and remanded the case to the trial court. See Town of Bartlett v. Edward Furlong d/b/a Lil' Man Snowmobile Rentals, No. 2009-0712 (N.H. Jan. 5, 2011).

Before our order was issued, the defendant's counsel, Randall Cooper, Esquire, filed a motion to withdraw in this court. We granted the motion in January 2010. At about the same time, Cooper filed a motion to withdraw in another matter between the defendant and the Town that was pending in the Carroll County Superior Court. On July 29, 2011, Cooper filed a motion to withdraw in the underlying circuit court action. The defendant was copied on our order and on two of Cooper's motions to withdraw.[1]

After our remand, a hearing was scheduled in the trial court for January 18, 2012, for which notice was sent on July 28, 2011. Cooper was copied on the notice and contends that he forwarded a copy of the notice to the defendant along with a copy of the withdrawal he filed on July 29. The defendant did not appear at the hearing, during which the Town presented the " Town of Bartlett's Requests for Findings of Fact and Rulings of Law."

After missing the hearing, the defendant filed three pleadings: (1) " Defendant's Motion to Accept Late Filing of Request for a New Hearing" dated January 19, 2012; (2) " Response to Plaintiff's Objection to Defendant's Motion for New Hearing" dated January 30, 2012; and (3) " Motion to Dismiss" dated January 30, 2012. On December 19, 2012, the trial court ruled on all outstanding issues, denying the defendant's motions and granting the Town's request for findings of fact and rulings of law. As part of its ruling, the trial court found: " The Defendant's violation of the zoning ordinance has gone on for a total of 1,132 days, calculated from the date of the land use citation to the date of the final hearing on January 18, 2012." The court gave the defendant a credit of 506 days for the period while the appeal was pending, which left 626 days during which he was in violation. Pursuant to RSA 676:17, I, the court imposed a fine of $275 for the first day of violation and 625 fines of $550 for each subsequent day, for a total fine of $344,025. The court ordered the Town to provide an affidavit of fees within ten days of the decision. The Town submitted an affidavit of fees and costs on December 27, 2012.

On January 4, 2013, the defendant filed " Defendant's Emergency Motion to Request a Hearing," which the court granted, and a hearing was scheduled for March 27, 2013. By order of April 18, 2013, the hearing was continued to July 10, 2013. The defendant failed to appear at this hearing or to notify the court that he would not attend. A day or two later, the defendant left a voicemail message for the Town's counsel indicating " a desire to discuss the matter ...

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