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NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Reporter, Supreme Court of New Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any editorial errors in order that corrections may be made before the opinion goes to press. Errors may be reported by E-mail at the following address: reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 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 SUPREME COURT OF NEW HAMPSHIRE ___________________________ Hillsborough-southern judicial district No. 2007-784 DOUGLAS R. GUY, JR. v. TOWN OF TEMPLE Argued: June 18, 2008 Opinion Issued: August 21, 2008 Matthew W. Glavey, of New Ipswich, on the brief and orally for the petitioner. Drescher & Dokmo, P.A., of Milford (Dwight D. Sowerby on the brief and orally), for the respondent. DUGGAN, J. The petitioner, Douglas R. Guy, appeals an order of the Superior Court (Hampsey, J.) upholding the Temple Zoning Board of Adjustment's (ZBA) denial of his application for a junkyard license. See generally RSA 236:110-:129 (1993 & Supp. 2007). We reverse and remand. The trial court found or the record supports the following facts: Guy owns property in Temple, upon which he operates an automotive repair, body work, and junkyard business (the property). A commercial enterprise of the same nature has existed on the property since before 1972 and possibly as early as the 1960s. Guy has operated the junkyard for approximately the last twenty years.

In 1972, the Town of Temple (Town) adopted a comprehensive zoning ordinance, which mandated that all "[m]otor vehicle junkyards . . . abide by the state laws on this subject . . . ." At that time, the state law on the subject, RSA chapter 267-A (1966), required owners of established junkyards to, among other things, submit an application containing various information regarding the junkyard's location to "the legislative body" of the town where the junkyard was located. RSA 267-A:13 (1966). Upon receipt of that application, the statute provided that "the legislative body shall issue [the junkyard] owner a license valid" for one year. Id. The Town's zoning ordinance also provided that "[a]ny lawful use of land or buildings or parts thereof at the time of the adoption of this ordinance may be continued indefinitely, although such use does not conform to the provisions of this ordinance . . . ." In 1999, Guy filed an application with the Temple Board of Selectmen (Board), requesting both a license to conduct state automobile inspections and certification that he was in compliance with local zoning laws. After the Board denied his application, Guy appealed to the ZBA. On October 12, 1999, the ZBA issued an order reversing the Board's denial of "grandfathered/nonconforming status to [Guy]'s automotive-related activities on" the property, which included the following findings of fact: 1. A commercial enterprise including auto repair/junkyard/auto body work/garage, public [sic] existed at [the property] prior to the adoption of the Temple Zoning Ordinance in 1972. 2. Said activities have continued since then through the present. .... 4. New testimony, documents, and photographs presented at the rehearing reinforced the applicant's original contention and evidence that a grandfathered use existed at said premises. 5. The junkyard phase of the commercial enterprise is subject to state licensing and regulation. Based upon these findings, the ZBA concluded that Guy's "commercial enterprise is a grandfathered/non-conforming use and is therefore protected under the Temple Zoning Ordinance and under New Hampshire RSA 674:19." Neither party appealed this order. On August 2, 2001, the Board sent Guy a letter enclosing "an initial application, per [his] request, for a motor vehicle junkyard permit," as well as "a copy of RSA 236:11 through 236:129 pertaining to junk yards." In the letter, the Board requested that he "complete the application and return it with the $25.00 fee." The Board also advised him that by signing the application he 2

would be "affirming that [he] me[t] all the provisions of the State of NH RSA's." Guy asserts that he never received this correspondence. There were no further communications between the parties regarding the junkyard until 2006, when Guy applied for a vehicle dealer license. The Board responded on March 8, 2006, informing him that his "request for dealer plates constituted an expansion of [his] non-conforming use." The same day, Guy contested the Board's determination and submitted a copy of the 1999 ZBA decision in support of his position. Shortly thereafter, Guy, for the first time, filed an application for a junkyard license with the Board. The application form required Guy to "affirm that [his] junkyard . . . is in compliance with all the requirements of RSA 236:123, and all other provisions of RSA 236 relative to junkyards." Furthermore, in filing the application, Guy was required to affirm that he had "received confirmation of `Grandfathered' status from the" ZBA and had "not moved, expanded on, or enlarged [his junkyard] to occupy more area than [his] original site plan." On April 19, 2006, the Board sent Guy a letter denying his requests for a vehicle dealer license and a junkyard license. With respect to the vehicle dealer license, the Board found that the selling of motor vehicles was an expansion of his non-conforming use and, thus, Guy needed "to file for a special exception." As to the junkyard license, the Board stated: The 1999 ZBA decision to "grandfather" your auto repair business included a requirement that you bring your junkyard into compliance with Temple's Zoning ordinance and State statutes (RSA 236). The Board . . . subsequently wrote to you reminding you of this ZBA requirement and attached copies of the relevant State statutes. To date you have not complied; you are therefore in violation of both Temple's Zoning ordinance and State of NH RSA's. We are now in receipt of your application for a junkyard license which the [Board is] unable to approve because you are in violation of the above referenced Temple Zoning ordinance and State Statutes. Please schedule an appointment to meet with the [Board] to discuss your plan to comply with the State's junkyard statutes and thereby the requirement of the 1999 ZBA decision to "grandfather" your auto repair business. After receiving this letter, Guy appealed the Board's "determination that his application for motor vehicle dealer plates constituted an expansion of a non-

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conforming use requiring a special exception" to the ZBA. The ZBA scheduled a hearing on the matter for July 6, 2006. On May 23, 2006, the Board issued a notice of violation, ordering Guy to "cease and desist any and all activities on [his property] consisting of the creation, establishment and/or maintenance of a junkyard." (Emphasis omitted.) In support thereof, the Board stated that Guy had failed to obtain a license and demonstrate his compliance with the requirements for a junkyard in RSA 236:111 through RSA 236:129, as required by both the 1999 ZBA decision and New Hampshire law. Moreover, the Board asserted that Guy's junkyard "ha[d] been expanded, without benefit of permit or license," since the 1999 ZBA decision. Therefore, the Board found that Guy had "not taken the steps required under the applicable statute[s] to protect [his] vested right to continue [his] junkyard operation" and, as provided by RSA 236:119 (Supp. 2007), the junkyard constituted a nuisance. Accordingly, the Board declared that, in order to continue operation of his junkyard, Guy had to comply with the application requirements for a new junkyard as provided in RSA 236:115 (Supp. 2007). On June 23, 2006, the Board sent Guy another letter, stating that it was "declin[ing] to entertain [his] permit request." The Board explained that, as already indicated in the notice of violation, it was of the opinion "that the junkyard operation referred to in the 1999 ZBA decision is no longer a permitted non-conforming use for reason of [Guy's] failure to comply with the applicable State Statutes in a timely fashion." Because Guy had lost his nonconforming status, and a junkyard is not a permitted use in the Town, the Board concluded that Guy was required to obtain a special exception, subject to any applicable historic district commission oversight, in order to continue his junkyard operation. After the Board denied his motion for reconsideration, Guy appealed the Board's April 19, 2006 and May 23, 2006 decisions to the ZBA. The ZBA held a public hearing on the matter on October 5, 2006. At that hearing, the Town contended, among other things, "that the junkyard, if it ever enjoyed a grandfathered status, has now lost it . . . [because] the junkyard has not complied with either state statute or the 1999 ZBA decision." In addition, the Town argued that the junkyard had been expanded since 1999 into an area that was designated on the tax rolls as current use property. See generally RSA 79-A:1 (2003). Guy, in contrast, asserted that he had actually contracted, rather than expanded, the number and location of cars on the property since 1999. He further argued that the 1999 decision vested non-conforming status upon his junkyard that could not be stripped away for failing to pay a license fee and, even if it could, the Town did not have an application process in place until 2001 at the earliest. At the same time, however, Guy's counsel submitted licensing records of the only other junkyard in Temple, which indicated that

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that junkyard had submitted applications for the years 1993, 2000, 2003, 2004, 2005 and 2006. After listening to the parties' arguments, the ZBA entered closed session to discuss the matter. As indicated in the ZBA's minutes, during the ensuing discussion the ZBA members "spent a lot of time talking about where cars are located . . . and how many there are as well as where they were located in 1999 and how many there were then." ZBA member Don Kraemer, who was on the ZBA in 1999, also told the rest of the members that the only issue in 1999 was whether Guy's property could "be grandfathered so he could have an inspection station." He stated that the "the junkyard wasn't an issue at that time" and that it was his opinion that the ZBA members had "simply noted that [Guy] needed to get the junkyard licensed" in the 1999 decision. Finally, the ZBA "members noted that RSA 236:125 came into being in 1966, so if there was a junkyard that was grandfathered in 1999, it was an illegal one because it wasn't licensed." Ultimately, the ZBA affirmed the Board's decision on the following basis: The applicant's junkyard has, at least since 1999, been operated in an unlawful fashion. Therefore, based on the language of the Temple Zoning Ordinance that a non-conforming use refers to a lawful use, the use is not grandfathered. The applicant does not have an allowable non-conforming use by the definition in the Temple Zoning Ordinance. After the ZBA denied his motion for rehearing, Guy appealed to the superior court. On October 10, 2007, the court ruled: The 1999 decision did not "grandfather'' [Guy]'s usage of the property for a junkyard operation because the decision states that the junkyard is subject to state law and licensing requirements. State law requiring junkyard licensure has existed since 1965. . . . There is no indication that any junkyard on the property has ever been licensed. Even if the ZBA, in the 1999 decision, had determined that [Guy]'s junkyard was a valid nonconforming use, it would have been incorrect, given that nonconforming uses must be lawful. Because [Guy]'s junkyard was not licensed under state law in 1972, it could not be lawful. . . . Further, the record indicates that on August 2, 2001, the Board sent [Guy] a letter enclosing an application for a junkyard license, further suggesting that the 1999 decision did not license [Guy]'s junkyard. . . . The trial court then rejected the majority of Guy's arguments based, in substantial part, upon its interpretation of the 1999 decision. In addition, the trial court ruled that Guy had failed to: (1) present any evidence to support his claim that the Town did not have a formal junkyard licensing process; (2) show 5

that the Town's alleged delay in enforcing the licensing requirements was unreasonable, or that he suffered prejudice as a result, such as to make the doctrine of laches applicable; and (3) articulate sufficient support for his claim that the Board "violated his constitutional right of due process, resulting in an unconstitutional taking of his property." On appeal, Guy asserts that the trial court committed reversible error by: (1) "finding that the 1999 decision . . . did not determine [his] motor vehicle junkyard to be a valid nonconforming use"; (2) "finding [his] junkyard unlawful because it was not properly licensed"; (3) "rejecting [his] claim that the [T]own . . . did not have a formal licensing process in effect in 1999, and to the extent that the [T]own ever implemented a procedure thereafter, such process was sporadically enforced up to the time enforcement action was taken"; (4) "failing to apply the doctrines of collateral estoppel and laches"; (5) "rejecting [his] contention that the provisions of RSA 236:125 and related case law required the . . . [Board] to issue [him] a motor vehicle junkyard license in 2006"; and (6) "rejecting [his] claim that the Board's failure to issue [him] a junkyard license in 2006, or afford [him] a hearing thereon, breached [its] obligation to [him] under state law, unreasonably interfered with [his] occupation, [and] violated [his] constitutional right of due process resulting in an unconstitutional taking of [his] property." Our review of zoning board decisions is limited. Harrington v. Town of Warner, 152 N.H. 74, 77 (2005). We will uphold the trial court's decision unless the evidence does not support it or it is legally erroneous. Chester Rod & Gun Club v. Town of Chester, 152 N.H. 577, 580 (2005). For its part, the trial court must treat all factual findings of the ZBA as prima facie lawful and reasonable. Id.; see RSA 677:6 (2008). It may set aside a ZBA decision if it finds by the balance of probabilities, based upon the evidence before it, that the ZBA's decision was unreasonable. Town of Chester, 152 N.H. at 580. However, the interpretation of a tribunal's order presents a question of law, which we review de novo. See In re Guardianship of Luong, 157 N.H. ____, ____ (decided July 2, 2008). With these principles in mind, we turn to Guy's arguments. I Guy argues first that, despite the trial court's findings to the contrary, the ZBA expressly found that his junkyard was a valid nonconforming use in the 1999 decision. Because the Town failed to appeal the ZBA's decision, Guy contends that the trial court erred in questioning the validity of the ZBA's determinations therein. We agree. In the 1999 decision, the ZBA broadly stated that it was reversing the Board's denial of "grandfathered/non-conforming status to [Guy]'s automotiverelated activities on" the property. Nowhere in the decision is this expansive 6

holding qualified in such a way as to exclude the junkyard. To the contrary, the ZBA clarified that Guy's "commercial enterprise includ[ed] auto repair/junkyard/auto body work/garage" activities and that that "commercial enterprise is a grandfathered/non-conforming use." (Emphases added.) Indeed, the very sentence relied upon by the trial court in concluding that "the 1999 decision did not `grandfather' [Guy]'s usage of the property for a junkyard operation," again references the junkyard as a "phase of the commercial enterprise" in question. (Emphasis added.) That the 1999 decision also noted that "[t]he junkyard . . . is subject to state licensing and regulation," in no way alters the fact that the ZBA clearly envisioned the junkyard as a component of the commercial enterprise that it found to be "a grandfathered/non-conforming use." The Town argues that the ZBA was nevertheless precluded "from legally ruling that the [junkyard] was grandfathered because" the junkyard was not licensed and "[t]he law is well established that a nonconforming use is permissible only where it legally exists at the date of the adoption of the zoning ordinance." Thus, the Town argues, any finding in the 1999 decision that the junkyard was a valid nonconforming use is invalid and must be overturned. Even assuming the Town is correct that the ZBA so erred, to entertain such an assertion would invariably require us to revisit the substance of the 1999 decision. To do so here, where, as indicated above, the issue has already been resolved and the order was not appealed, would run afoul of the doctrine of collateral estoppel. See, e.g., Grossman v. Murray, 141 N.H. 265, 269 (1996) ("In its most basic formulation, the doctrine of collateral estoppel bars a party to a prior action, or a person in privity with such a party, from relitigating any issue or fact actually litigated and determined in the prior action." (quotation omitted)). We therefore agree with Guy that the doctrine of collateral estoppel bars consideration of this claim. Accordingly, we accept the findings in the 1999 decision and hold that Guy's junkyard has been determined to be a valid nonconforming use. II Having determined that the 1999 decision established that the junkyard was a valid nonconforming use, we must now assess whether the junkyard was subsequently divested of that status. As we have previously explained: The right to maintain nonconforming uses is meant to protect property owners from a retrospective application of zoning ordinances, so that property owners may continue using and enjoying their property when their uses were lawful prior to the enactment of a zoning ordinance. RSA 674:19 protects that right by providing that zoning ordinances shall not apply to existing structures or uses, thereby creating a vested right to continue the 7

prior lawful use of land. Because the general policy of zoning law, however, is to carefully limit the extension and enlargement of nonconforming uses, we strictly construe provisions that permit the continuance of such uses, and the party asserting that a proposed use is not new or impermissible bears the burden of proof. Therefore, an extension and enlargement that substantially changes the nature and purpose of the nonconforming use is impermissible. Town of Salem v. Wickson, 146 N.H. 328, 330 (2001) (quotations omitted); see also D. Mandelker, Land Use Law

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