SUPREME COURT

Case No. 2009-0098

Roger and Judith Bedard,Appellees & Cross-appellants

v.

Town of Alexandria,Appellant

RULE 7 MANDATORY APPEALFROM A DECISION OF THE GRAFTON COUNTY SUPERIOR COURT

Appellees’ Answering Brief

and

Cross-Appellants’ Brief

Appellees’ Counsel on the Brief andat Oral Argument:

Colin W. Robinson, Esq.P.O. Box 329Lyme, NH 03768-0329NH Bar #8831

Appellees’ Answering Brief

ii

TABLE OF CONTENTS

SECTION PAGE

TABLE OF CASES CITED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

TABLE OF STATUTES CITED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

I. STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1II. SUMMARY OF ARGUMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

III. ARGUMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3A. Incorrect standard urged by the Town . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3B. Discretion to award fees permissive not mandatory . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

IV. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8A. Relief Requested. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8B. Legal Grounds. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8C. Oral Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

APPENDICES

The Appellees hereby agree to adopt the Appendix to Brief of Defendant submitted with

the Appellant’s Brief, as conforming to the provisions of Supreme Court Rule 16(3)(i). Citations

herein to Appendix (App.) shall refer to said Appendix.

iii

TABLE OF CASES CITED

CASE NAME, CITATION PAGE

Claremont School Dist. v. Governor N.H., 144 N.H. 590 (1999) . . . . . . . . . . . . . . . . . . . . . . . 2, 4

Gnirk v. Gnirk, 134 N.H. 199 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Harkeem v. Adams, 117 N.H. 687 (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 5

In re Martel, 157 NH 53 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Irwin Marine, Inc. v. Blizzard, Inc., 126 N.H. 271 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 4

Motor Transport Assoc. v. State, 150 N.H. 762 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 4

Silva v. Botsch, 121 N.H. 1041 (1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

State v. Fraser, 120 N.H. 117 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 4

State v. Johnson, 145 N.H. 647 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 4

State v. Lambert, 147 N.H. 249 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

State v. Njogu, 156 N.H. 551 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Sweeney v. Willette, 98 N.H. 512, 513 (1954) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Wolfeboro v. Smith, 131 N.H. 449 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

iv

TABLE OF STATUTES CITED

STATUTE PAGE

RSA 155-E:10,II . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 6

RSA 676:17 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

RSA 676:17,II . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7

1

I. STATEMENT OF THE CASE

The Respondent below, the Town of Alexandria (“Town”), is the Appellant in this

mandatory appeal of the Trial court’s decision denying it’s request for an award of attorney fees.

The Petitioners below, Roger and Judy Bedard (“Bedards”), are the appellees and cross-

appellants in this appeal. The Town’s Statement of the Case in its Brief substantially mis-states

the nature of the underlying action. It characterizes the action as “concern[ing] the Town’s

authority to enforce its excavation regulations...” Brief at 1. That is not what the underlying case

was about. The Bedards have never challenged such authority; the record shows that they have

attempted to comply with state law and local regulations. Rather, this case simply concerns a

disagreement over the meaning of a statute, and it’s applicability to the facts of the matter.

The Bedards brought the underlying action, not the Town. They asked the Trial Court to

settle the disagreement as it is authorized to do under New Hampshire’s Declaratory Judgment

Act. The Trial Court decided competing Motions For Summary Judgment in favor of the Town.

That decision is the subject of the Bedards’ mandatory Cross-appeal.

In this appeal the Town argues that the statute at issue required the Trial Court to award it

the attorney fees it incurred in responding to the Bedards’ Petition For Declaratory Judgment.

The Bedards and the Trial Court disagree. The Town has submitted the issue to this Court for

final resolution.

2

II. SUMMARY OF ARGUMENTS

At the outset, the Bedards agree with the Town as to the standard of review to be applied

by this Court, at set out in its Brief. Brief at 5.

1. The Bedards contend that the Trial Court applied the correct standard to inform it’s

exercise of discretion whether to award attorney fees. App. at 41. So far as the Bedards can

discern, the “substantial benefit to the community” standard the Town urges this Court to apply

has never been applied to justify an award of litigation fees to a sovereign. Rather, just the

opposite: It has always been used to award fees to a private litigant against a sovereign. See, e.g.,

Silva v. Botsch, 121 N.H. 1041, 1043 (1981); Irwin Marine, Inc. v. Blizzard, Inc., 126 N.H. 271,

276 (1985); Claremont School Dist. v. Governor, 144 N.H. 590, 595 (1999); N.H. Motor

Transport Assoc. v. State, 150 N.H. 762, 770 (2004).

2. The authority granted to a Trial Court to award costs and fees to a municipality found

in RSA 155-E:10,II is permissive, not mandatory, as argued by the Town.

3

III. ARGUMENTS

A. Incorrect standard urged by the Town.

1. In its decision denying the Town’s request for costs and fees, the Trial Court

acknowledged the New Hampshire default rule on the allocation of litigation costs and fees, App.

at 40, then went on to note the exceptions laid out in Harkeem v. Adams, 117 N.H. 687, 690-91

(1977). Quoting Harkeem, the Trial Court focused upon the exception that applies when a Court

finds that “one party has acted in bad faith, vexatiously, wantonly, for oppressive reasons, and

where the litigant’s conduct can be characterized as unreasonably obdurate or obstinate, or where

it should have been unnecessary for the successful party to have brought the action.”

The Trial Court carefully set out the reasoning behind its exercise of discretion finding,

“no evidence that the [Bedards] acted with bad faith prior to or during the course of the

litigation.” App. at 40. Rather, it found that they had “acted based on (sic) a reasonable

misunderstanding of the applicable statute,” and “came before the Court with a colorable

disagreement over statutory interpretation.” Id. As the Town recognized in its Brief, in

determining whether an exercise of discretionary authority was proper, this Court is “really

deciding whether the record establishes an objective basis sufficient to sustain [the judgment].”

State v. Lambert, 147 N.H. 295, 296 (2001) (citation omitted). Here, an objective review of the

basis of the decision must yield a conclusion that it was sound.

Further, for a long time and in a wide range of cases, this Court has consistently held that

it will not substitute its judgment for that of the trial judge vested with discretionary authority.

Accordingly, it will not disturb exercises of discretion that are not irrational, arbitrary, capricious,

or plainly wrong. See, e.g., State v. Fraser, 120 N.H. 117, 123 (1980) (criminal); Gnirk v. Gnirk,

4

134 N.H. 199, 201-02 (1991) (divorce decree modification); Sweeney v. Willette, 98 N.H. 512,

513 (1954) (personal injury).

Finally, this Court should recognize the burden its case law places upon the Town in this

case. To succeed in this appeal, the Town “must demonstrate that the court’s ruling was clearly

untenable or unreasonable.” State v. Johnson, 145 N.H. 647, 648 (2000) (emphasis added)

(citation omitted). Indeed, the Town admitted as much when setting out the applicable standard

of review. Brief at 5. The Town doesn’t even make an argument that the Trial Court’s decision

was an unsustainable exercise of discretion, arguing instead, that it applied the wrong standard.

Therefore, if this Court finds, as the Bedards think it should, that the Trail Court applied the

correct standard, then it must sustain its exercise, the Town having failed to meet its burden.

2. With respect to the Town’s argument that in exercising its discretion the Trial Court

should have applied the “substantial benefit to the community” standard: As stated in their

summary of arguments, the Bedards contend that said standard has never been applied in this

state of justify an award of litigation fees to a sovereign. See, Silva, Irwin Marine, Claremont

School Dist., and N.H. Motor Transport Assoc. v. State, supra. Silva and its many progeny have

all involved reviews of whether a trial court properly awarded to or withheld from, fees incurred

in litigating against a sovereign by a private litigant. The Town evidently misunderstands or

ignores the rationale announced many times by the Court in recognizing this fee-shifting

mechanism. Perhaps, the N.H. Motor Transport Court stated the rule most succinctly: The

question is whether in litigating against a sovereign, a private litigant “conferred a substantial

benefit . . . not only [upon it]..., but on the public as well.” 150 N.H. at 770 (internal quotations

and citation omitted). The Town would have this Court expand the rule beyond what its

5

underlying rationale can support. In fact, contrary to the Town’s assertion, Brief at 9, such an

expansion would have the effect of “unjustly deter[ing] those of limited resources from

prosecuting or defending suits” against a sovereign. Harkeem, 117 N.H. at 690. This Court

should find that the Trial Court correctly eschewed the application of the “substantial benefit to

the community” standard, in favor of the Harkeem standard.

B. Discretion to award fees permissive not mandatory.

The Town next argues that the provisions of “RSA 676:17 with its mandatory award of

attorneys’ fees to the successful municipality, incorporated by reference into the applicable

provision of RSA 155-E:10,II” should apply. Brief at 9. That argument ignores the plain

language of the statute, which provides:

Fines, penalties, and remedies for violations of this chapter shall be the same asfor violations of RSA title LXIV, as stated in RSA 676:15, 676:17, 676:17-a, and676:17-b. In addition, the regulator or a person directly affected by such violationmay seek an order from the superior court requiring the violator to cease anddesist from violating any provision of a permit or this chapter and to take suchaction as may be necessary to comply with the permit and this chapter. If thesuperior court issues such an order, the superior court in its discretion may awardall costs and attorneys’ fees incurred in seeking such an order to the regulator orperson directly affected by such violation.

RSA 155-E:10,II (emphasis added). This Court is constrained to apply the language the General

Court chose to use in the applicable statute. As this Court has said, “As a first step in statutory

construction, we will examine the language found in the statute.” Wolfeboro v. Smith, 131 N.H.

449, 452 (1989) (citation omitted). If the General Court has not supplied a definition, then

“[w]hen examining the language of [a] statute, [the Court] ascribe[s] the plain and ordinary

meaning to the words used.” In re Martel, 157 NH 53, 58 (2008) (citation omitted).

6

Neither the Town, nor this Court can escape the fact that the legislature very specifically

stated its intent: That the Trial Court may, in its discretion, award costs and fees, which language

contrasts sharply with the command of RSA 676:17,II, which provides in full:

In any legal action brought by a municipality to enforce, by way of injunctiverelief as provided by RSA 676:15 or otherwise, any local ordinance, code orregulation adopted under this title, or to enforce any planning board, zoning boardof adjustment or building code board of appeals decision made pursuant to thistitle, or to seek the payment of any fine levied under paragraph I, the municipalityshall recover its costs and reasonable attorney’s fees actually expended inpursuing the legal action if it is found to be a prevailing party in the action. Forthe purposes of this paragraph, recoverable costs shall include all out-of-pocketexpenses actually incurred, including but not limited to, inspection fees, expertfees and investigatory expenses.

The legislature chose to clearly distinguish the remedies available to a municipality in a Title

LXIV (Planning and Zoning) enforcement proceeding from those available in a Title XII (Public

Health and Welfare) enforcement proceeding. Of course, “the legislature is presumed to know

the meaning of the words it chooses and to use those words advisedly.” State v. Njogu, 156 N.H.

551, 553 (2007).

Even if this Court were inclined to hold that the mandatory language of RSA 676:17,II

trumps the permissive authority granted in RSA 155-E:10,II, it should focus on the language in

the first sentence of that section. The expressed prerequisite to obtaining the fee-shifting remedy,

is that the action be “brought by a municipality to enforce... any local ordinance, code or

regulation adopted under this title or to enforce any planning board, zoning board of adjustment

or building code board of appeals decision made pursuant to this title” (emphasis added). It is

noteworthy that not only did the Town not bring the underlying action, but neither did it cross-

petition against the Bedards to enforce the provisions of RSA 155-E. Nor would such action

have been brought to enforce local enactments made under Title LXIV, but rather, it would have

7

been brought to enforce an enactment made under Title XII. Therefore, it is clear that the

provisions of RSA 676:17,II cannot be grafted wholesale onto RSA 155-E:10,II.

For the foregoing reasons this Court should reject the Town’s argument that the Trial

Court was required to award it costs and fees.

8

IV. CONCLUSION

A. Relief Requested.

The Bedards respectfully request that this Court issue an Order affirming the Trial

Court’s decision denying the Town’s request for an award of attorney fees.

B. Legal Grounds.

The Trial Court’s decision denying the Town’s request for an award of attorney fees was

based upon application of the correct legal standard, and was made in the exercise of

discretionary, not mandatory, authority.

C. Oral Argument.

The Bedards hereby respectfully request that they be permitted to argue their case before

the full Court, through counsel.

Respectfully submitted,ROGER AND JUDITH BEDARDBy their attorney,

______________________________Colin W. RobinsonP.O. Box 329Lyme, NH 03768-0329603-795-2300NH Bar ID #8831

CERTIFICATE OF SERVICE

I hereby certify that two (2) true copies of the foregoing Answering Brief were sent byfirst class mail to Christopher L. Boldt, Esq., counsel of record for Respondent/Appellant, this30th day of April, 2009.

______________________________Colin W. Robinson

Cross-appellants’ Opening Brief

ii

TABLE OF CONTENTS

SECTION PAGE

TABLE OF CASES CITED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

TABLE OF STATUTES CITED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

I. QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

II. STATUTORY PROVISIONS CITED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2New Hampshire Revised Statutes Annotated. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

III. STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5A. Factual and Procedural Background. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5B. Result in Trial Court. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

IV. SUMMARY OF ARGUMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

V. ARGUMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8A. Applicable Standards of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8B. Correct Interpretation of the Statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

VI. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14A. Relief Requested. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14B. Legal Grounds. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14C. Public Policy Grounds. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

APPENDICES

The Cross-appellants hereby agree to adopt the Appendix to Brief of Defendant submitted

with the Appellant’s Brief, as conforming to the provisions of Supreme Court Rule 16(3)(i).

Citations herein to Appendix (App.) shall refer to said Appendix.

iii

TABLE OF CASES CITED

CASE NAME, CITATION PAGE

Barksdale v. Town of Epsom, 136 N.H. 511 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Conservation Law Foundation v. N.H. Wetlands Counsel, 150 N.H. 1 (2003) . . . . . . . . . . . . . . 11

Estate of Joshua T. v. State, 150 N.H. 405 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Estate of Richard H. Ireland, Jr. v. Worcester Insurance Company, 149 N.H. 656 (2003) . . . . . 9

Franklin v. Town of Newport, 151 N.H. 508 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

In the Matter of Jacobson & Tierney, 150 N.H. 513 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Kearsarge Soaring Assoc. v. Kearsarge Valley Golf Club, Inc., 123 N.H. 263 (1983) . . . . . . . 11

Remington Invs. v. Howard, 150 N.H. 653 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

State v. Whittey, 149 N.H. 463 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Sweeney v. Ragged Mt. Ski Area, 151 N.H. 239 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

iv

TABLE OF STATUTES CITED

STATUTE PAGE

RSA 155-E . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

RSA 155-E:1,II . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

RSA 155-E:2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

RSA 155-E:4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

RSA 155-E:4,III . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

RSA 155-E:4,II . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

RSA 155-E:4-a,II . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

RSA 155-E:5,III . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 10

RSA 155-E:11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

RSA 491:22,I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

RSA 491:8-a . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 8

1

I. QUESTION PRESENTED

Whether the trial court erred in interpreting the provisions of RSA 155-E, by holding that

moving earth adjacent to a regulated sand pit within 50 feet of an objecting abutter’s land for the

purpose of reclaiming the land by establishing a stable side-slope, as required by RSA 155-E:5, is

“excavation” as the term is defined by RSA 155-E:1,II. Pursuant to the provisions of Supreme

Court Rule 16(3)(b), Petitioners/Cross-appellants hereby certify that this question was presented

to the Trial Court in their Motion For Reconsideration. App. at 31.

2

II. STATUTORY PROVISIONS CITED

New Hampshire Revised Statutes Annotated.____________________

Title XII. Public Safety and WelfareChapter 155-E Local Regulation Excavations

155-E:1 Definitions.

In this chapter:

***** II. “Excavation” means a land area which is used, or has been used, for the commercial takingof earth, including all slopes.

155-E:2 Permit Required.

No owner shall permit any excavation of earth on his premises without first obtaining apermit therefor, except as follows:

I. EXISTING EXCAVATIONS. The owner of an excavation which lawfully existed as ofAugust 24, 1979, from which earth material of sufficient weight or volume to be commerciallyuseful has been removed during the 2-year period before August 24, 1979, may continue suchexisting excavation on the excavation site without a permit, subject to the following: *****

I.(d)(4) An estimate of the amount of commercially viable earth materials still availableon the parcel. *****

II.(a)(1) No earth material of sufficient weight or volume to be commercially useful hasbeen removed from that excavation site during any 2-year period, either before, on, or afterAugust 4, 1989; provided, however, that before the end of such 2-year period, the owner oroperator may extend the period by submitting to the regulator a reclamation timetable to beapproved by the regulator, and posting a bond or other security with the municipal treasurer in aform and amount prescribed by the regulator, sufficient to secure the reclamation of the entireexcavation site in accordance with the standards of RSA 155-E:5;*****

II.(c) The site of an excavation which ceased commercially useful operation prior toAugust 24, 1977, but for which the affected area has not been brought into compliance with thereclamation standards of RSA 155-E:5, may be made subject to the remedy prescribed in RSA155-E:2, II(b) only if the regulator finds in writing that specified reclamation measures arenecessary to eliminate or mitigate an identified hazard to public health or safety.

3

155-E:4 Prohibited Projects.

The regulator shall not grant a permit:*****I II. For excavation within 50 feet of the boundary of a disapproving abutter or within 10

feet of the boundary of an approving abutter unless approval is requested by said abutter; *****

III. When the excavation is not permitted by zoning or other applicable ordinance,provided, however, that in municipalities which have commercial earth resources on unimprovedland within their boundaries, and which do not provide for opportunities for excavation of someof these resources in at least some, but not necessarily all areas within the municipality, or inmunicipalities which have zoning ordinances which do not address the subject of excavations,excavation shall be deemed to be a use allowed by special exception as provided in RSA 674:33,IV, in any non-residential areas of the municipality, and the zoning board of adjustment shallgrant such a special exception upon a finding that:*****

155-E:4-a Minimum and Express Operational Standards.

It shall be a violation of this chapter for any person to excavate, or for any owner to permitexcavation on his excavation site, when such excavation is subject to a permit under this chapter,without complying with the following minimum standards or when such excavation is notsubject to a permit under this chapter pursuant to RSA 155-E:2 without complying with thefollowing express standards:***** II. No excavation shall be permitted within 50 feet of the boundary of a disapproving abutter,within 150 feet of any dwelling which either existed or for which a building permit has beenissued at the time the excavation is commenced.

155-E:5 Minimum and Express Reclamation Standards.

Within 12 months after the expiration date in a permit issued under this chapter, or of thecompletion of any excavation, whichever occurs first, the owner of the excavated land shall havecompleted the reclamation of the areas affected by the excavation to meet each of the followingminimum standards or when such excavation is not subject to a permit under this chapterpursuant to RSA 155-E:2, to meet each of the following express standards:***** III. All slopes, except for exposed ledge, shall be graded to natural repose for the type of soilof which they are composed so as to control erosion or at a ratio of horizontal to verticalproposed by the owner and approved by the regulator. Changes of slope shall not be abrupt, butshall blend with the surrounding terrain.

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155-E:11 Regulations.

I. The regulator may adopt such regulations as may be reasonably necessary to carry out theprovisions of this chapter, including adopting a permit fee schedule. Whenever such localregulations differ from the provisions of this chapter, the provision which imposes the greaterrestriction or higher standard shall be controlling, except that no local regulation shall supersedethe sole applicability of express standards under RSA 155-E:2, I, III, and IV. *****____________________

Title LI. CourtsChapter 491. Superior Court

491:8-a Motions for Summary Judgment.*****III. Summary judgment shall be rendered forthwith if the pleadings, depositions, answers tointerrogatories, and admissions on file, together with the affidavits filed, show that there is nogenuine issue as to any material fact and that the moving party is entitled to judgment as a matterof law. A summary judgment, interlocutory in character, may be rendered on the issue of liabilityalone, although there is a genuine issue as to the amount of damages.*****

491:22 Declaratory Judgments.

I. Any person claiming a present legal or equitable right or title may maintain a petitionagainst any person claiming adversely to such right or title to determine the question as betweenthe parties, and the court's judgment or decree thereon shall be conclusive. The existence of anadequate remedy at law or in equity shall not preclude any person from obtaining suchdeclaratory relief. However, the provisions of this paragraph shall not affect the burden of proofunder RSA 491:22-a or permit awards of costs and attorney's fees under RSA 491:22-b indeclaratory judgment actions that are not for the purpose of determining insurance coverage.*****

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III. STATEMENT OF THE CASE

A. Factual and Procedural Background.

Petitioners/Cross-appellants, Roger and Judy Bedard (“Bedards”) own an inactive sand

pit in Alexandria shown as lot 112 on tax map 406 (“Pit”). The provisions of RSA 155-E (Local

Regulation Excavations) (“Statute”) govern the permitting, operation, and reclamation of the Pit.

Respondent/Appellant, the Town of Alexandria (“Town”), has adopted Earth Excavation

Regulations (“Regulations”) pursuant to RSA 155-E:11, which also govern the permitting,

operation, and reclamation of the Pit. Wesley Platts (“Platts”) owns the parcel of land abutting

the Pit to the south. The Town identified Platts as a “disapproving abutter” as the term is used in

RSA 155-A:4,II and 4-a,II, meaning that, according to those sections, “excavation,” as the term is

defined in RSA 155-E:1,II, cannot be permitted nor carried on within 50 feet of Platts’s land

(“Setback Area”).

The Bedards have reclaimed the Pit in accordance with the requirements of the Statute

and Regulations except on the south side thereof adjacent to the Platts land by stabilizing the top

slopes in a manner consistent with the requirements of RSA 155-E:5,III. In order to stabilize and

thereby reclaim the top slope of the pit on the south side in compliance with the requirements of

RSA 155-E:5,III, the Bedards must remove earth to create gentler, stable slope. The Town took

the position in the underlying action that moving soil within the Setback Area is prohibited by

the Statute. The Bedards took the position that moving soil within the Setback Area for the sole

purpose of stabilizing the slopes to comply with the Statute by reclaiming that section of the Pit

is not “excavation” as the term is defined by the Statute and therefore not unlawful.

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The Bedards commenced the underlying action by filing in Grafton County Superior

Court, a bill in equity brought under the Declaratory Judgment Act, RSA 491:22,I. The parties

stipulated to the relevant facts, by Stipulated Statement of Undisputed Material Facts

(“Stipulated Facts”), App. at 6-8, and each party filed a Motion For Summary Judgment based

upon the Stipulated Facts. The parties intended that the Stipulated Facts be treated by the Trial

Court as party admissions sufficient to support a motion for summary judgment. The Trial Court

did not hold a hearing, but rather, relied solely upon the law and Stipulated Facts in reaching its

decision.

B. Result in Trial Court.

The Trial Court granted the Town’s Motion For Partial Summary Judgment, App. at 9-16,

and denied the Bedards Motion For Summary Judgment, App. at 17-22, by Order on Pending

Motions dated December 3, 2008 (“Trial Court Order”). App. at 24. The Bedards timely filed a

Motion For Reconsideration, App. at 31, which Motion was denied by Entry Order dated

December 31, 2008. App. at 38.

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IV. SUMMARY OF ARGUMENTS

The Trial Court’s denial of the Bedards Motion For Summary Judgment was the result of

flawed statutory construction. This Court is the ultimate arbiter of the meaning of legislative

pronouncements, and when it finds that a lower court has misconstrued a statute, it must reverse

the erroneous ruling. If the Trial Court’s ruling is reversed here, then this Court should direct the

Trial Court to grant the Bedards Motion For Summary Judgment, and deny the Town’s Motion

For Partial Summary Judgment.

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V. ARGUMENTS

A. Applicable Standards of Review.

When reviewing a trial court’s grant of summary judgment, this Court must apply the

same standard as the lower court, as set out in RSA 491:8-a,III. It is required to consider the

affidavits and other evidence, and all inferences properly drawn from them, in the light most

favorable to the non-moving party. Estate of Joshua T. v. State, 150 N.H. 405, 407 (2003). If a

review of the evidence does not reveal any genuine issue of material fact, and if the moving party

is entitled to judgment as a matter of law, then this Court will affirm the trial court’s decision. Id.

Here, inasmuch as the parties filed, and the Trial Court relied solely upon, the Stipulated Facts,

the fact that there is no genuine issue of material fact is a given.

This Court is the final arbiter of the intent of the legislature as expressed in the words of a

statute considered as a whole. In the Matter of Jacobson & Tierney, 150 N.H. 513, 515 (2004).

This Court is required first, to examine the language of the statute, and, where possible, ascribe

the plain and ordinary meanings to the words used. Id. This Court reviews the trial court’s

interpretation of a statute de novo. Remington Invs. v. Howard, 150 N.H. 653, 654 (2004).

This Court’s goal is to apply statutes in light of the legislature’s intent in enacting them,

and in light of the policy sought to be advanced by the entire statutory scheme. State v. Whittey,

149 N.H. 463, 467 (2003). When this Court interprets statutes that deal with the same subject

matter, it considers all of the statutes when interpreting any one of them. Barksdale v. Town of

Epsom, 136 N.H. 511, 515-16 (1992). Although this Court looks to the plain and ordinary

meaning of the statutory language to determine legislative intent, it will not read words or

phrases in isolation; they are read in the context of the entire statute. Franklin v. Town of

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Newport, 151 N.H. 508, 509 (2004).

This Court follows the policy of strictly interpreting statutes that are in derogation of the

common law. Sweeney v. Ragged Mt. Ski Area, 151 N.H. 239, 241 (2004). “While a statute may

abolish a common law right, there is a presumption that the legislature has no such purpose.” Id.

“If such a right is to be taken away, it must be expressed clearly by the legislature.” Id.

Finally, under the doctrine of stare decisis, this Court must apply it’s own precedents

unless some very substantial justification to deviate from a precedent exists, as this Court has

said:

“[W]e can scarcely permit the substantive law to shift and spring according to theparticular equities of individual parties’ claims of actual reliance on an old ruleand of harm from a retroactive application of the new rule.” Id. at 97, 113 S.Ct.2510 (quotations and brackets omitted). To do so would compromise the valuethat we place upon “stability in legal rules.” See Matarese, 147 N.H. at 400, 791A.2d 175.

Estate of Richard H. Ireland, Jr. v. Worcester Insurance Company, 149 N.H. 656, 660 (2003)

(quoting Harper v. Virginia Dept. of Taxation, 509 U.S. 86, 97-98, 113 S.Ct. 2510, 125 L.Ed.2d

74 (1993)). Therefore, this Court should apply the rules of law set out in the cases cited herein,

and in other applicable decisions, and determine whether the Trial Court correctly interpreted the

statute at issue.

B. Correct Interpretation of the Statute.

In an effort to comply with the statutory and regulatory requirements that they “reclaim”

the pit, see Stipulated Facts at ¶14; App. at7, the Bedards removed earth materials to create a

slope within the Setback Area. Stipulated Facts at ¶¶11-13; App. at 6-7. It is critical to this

Court’s review to note that the earth materials the Bedards removed within the Setback Area

have not been removed off-site. Stipulated Facts at ¶11; App. at 6.

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With respect to side-slopes in a regulated excavation, RSA 155-E:5,III (Minimum and

Express Reclamation Standards) requires:

All slopes, except for exposed ledge, shall be graded to natural repose for the typeof soil of which they are composed so as to control erosion or at a ratio ofhorizontal to vertical proposed by the owner and approved by the regulator. Changes of slope shall not be abrupt, but shall blend with the surrounding terrain.

(emphasis added). The slope is to be at an angle of “natural repose” which term is defined as the

“angle to the horizontal at which a material will no longer be affected by gravity and slide

downward of its own accord.” L. WEBSTER, THE WILEY DICTIONARY OF CIVIL ENGINEERING

AND CONSTRUCTION (1997). Thus, to comply with the Statute the operator must grade or shape

the land to such an angle to create a stable slope if one does not naturally exist, as is the case

here.

The Town claimed and the Trial Court found, that by moving soil– which term is

admittedly within the definition of “earth” as set out in the Statute at §1, I– within the Setback

Area to create a stable slope, the Bedards “excavated’ therein in violation of the Statute. The

Bedards disagree. Trial Court Order at 4; App. at 27. Admittedly, RSA 155-E:4 prohibits

issuance of a permit for excavation within 50 feet of the property line of a disapproving abutter

(emphasis added). RSA 155-E:5 requires reclamation of excavations. “Excavation” is defined in

RSA 155-E:1,II as “a land area which is used, or has been used, for the commercial taking of

earth, including all slopes” (emphasis added).

The term “commercial taking of earth” is not defined by the Statute nor by the Town’s

regulations, although the terms “commercial” and “commercially” are used throughout the

Statute. See, e.g. RSA 155-E:2; RSA 155-E:4, III. Therefore, as recited in Section V.A. above,

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this Court must give an undefined term its plain and ordinary meaning. The Bedards think that

the meaning of the phrase “taking of earth” is plain enough, i.e., removing earth from where it is

naturally deposited and placing it elsewhere, and ask this Court to adopt it. They have searched

the New Hampshire case law in vain for a explication of the definition of the term “commercial”

as it is used in the context of earth materials. However, this Court has supplied a definition in

another context, which the Bedards think is helpful here and ought to be applied: “[a]n air

navigation facility such as a landing area is ‘commercial’ when it is ‘used or intended to be used

to render an aeronautical service for compensation...’” Kearsarge Soaring Assoc. v. Kearsarge

Valley Golf Club, Inc., 123 N.H. 263, 266 (1983) (citation to former version of statute omitted).

Thus, it logical and not without precedent to conclude that as used in the Statute, the General

Court meant the term “commercial taking of earth” to mean “removing earth for the purpose of

placing it in the stream of commerce for compensation.”

As for the final phrase of RSA 155-E1,II, “including all slopes,” it clearly is intended to

modify the immediately preceding term “commercial taking of earth,” not “a land area.”

Conservation Law Foundation v. N.H. Wetlands Counsel, 150 N.H. 1, 6 (2003) (“the term

‘including’...limits the items intended to be covered by the rule to those of the same type as the

items specifically listed.”). Therefore, the Bedards’ activities within the Setback Area are not

“excavation” as defined by the Statute. To interpret the Statute otherwise would be to put words

in the Legislature’s mouth. If it meant to prohibit all earth-moving activities within 50 feet of an

objecting abutter’s property line, it would have said so.

In other words, the Legislature’s use of the term “commercial” in the definition of

excavation has significance that cannot be overlooked: It would have been omitted if the General

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Court meant to prohibit all soil disturbance within 50 feet of an objecting abutter’s property line.

In another case construing the Statute, this Court recited the controlling principals of statutory

construction, thus: “The legislature is presumed to know the meaning of words, and to have used

the words of a statute advisedly. ...When construing a statute, we must give effect to all words in

a statute and presume that the legislature did not enact superfluous or redundant words.”

Guildhall Sand v. Town of Goshen, 155 N.H. 762, 765 (2007) (quotations and citations omitted).

Nevertheless, the Trial Court held that the Bedards violated the statutory prohibition

against excavation in the Setback Area by creating a slope therein because “[t]hat slope is, by

definition, part of the excavation.” Trial Court Order at 4; App. at 27. The Bedards suggest that

the Trial Court ignored the very words of the statute and essentially assumed the conclusion

when it held that “[t]he creation of the slope is inseparable from the commercial taking as they

were clearly part of the same project...” Id. Being “part of the same project,” the Bedards

contend, is not enough, and not what the General Court said. To accept that reasoning it would

mean, as a practical matter, that actual excavation (“commercial taking of earth”) could not take

place closer to objecting abutter’s property line than 50 feet, plus any area of side slope that had

to be graded in order to stabilize it, regardless whether any earth material removed was entering

the stream of commerce.

The Trial Court overlooked the fact that the Statute does not forbid all earth disruption

within the Setback Area. It specifically prohibits only “excavation.” That term is defined by

RSA 155-E:1,II as “a land area which is used, or has been used, for the commercial taking of

earth, including all slopes” (emphasis added). The Trial Court appears to be saying, in so many

words, that the use to which the earth material is put or the purpose for its removal, is irrelevant,

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as long as it is part of a commercial operation. The Bedards think the Court is putting words in

the Legislature’s mouth. That it cannot do. If the legislature had meant to forbid all earth

disruption within the Setback Area, it would have said so, instead of limiting the prohibition to a

defined, but limited, type of activity.

The Bedards contend, and ask this Court to adopt as the rule of the case, that removal of

earth materials incidental to an effort to reclaim an excavation site by establishing a stable side

slope is not “excavation” within the meaning of the Statute. Because there are no material facts

in dispute, and the law supports the relief sought in the Bedards’ Motion For Summary

Judgment, it should be granted.

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VI. CONCLUSION

A. Relief Requested.

1. The Bedards respectfully request that the Court issue an Order:

a. reversing the Trial Court Order granting the Town’s Motion For Partial

Summary Judgment; and

b. directing the Trial Court to grant the Bedard’s Motion For Summary Judgment.

B. Legal Grounds.

Trial Court Order was based upon an erroneous interpretation of the operable statute, and

must, therefore, be reversed.

C. Public Policy Grounds.

This Court has never squarely addressed the issue, and therefore, should announce the

proper construction of RSA 155-E:1,II.

D. Oral Argument.

The Bedards hereby respectfully request that they be permitted to argue their case before

the full Court, through counsel.

Respectfully submitted,ROGER AND JUDITH BEDARDBy their attorney,

______________________________Colin W. RobinsonP.O. Box 329Lyme, NH 03768-0329603-795-2300NH Bar ID #8831

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CERTIFICATE OF SERVICE

I hereby certify that two (2) true copies of the foregoing Opening Brief were sent by firstclass mail to Christopher L. Boldt, Esq., counsel of record for Respondent/Appellant, this 30th

day of April, 2009.

______________________________Colin W. Robinson