In a November 16, 2012 alert, we discussed the New Hampshire Supreme Court’s November 9, 2012 decision in Town of Carroll v. Rines.  That decision concluded that state law preempts certain municipal restrictions on excavation permitting.  For the facts and background of the case, that alert can be found here:

http://www.pierceatwood.com/36018

Less than three months after its initial decision in Rines, the Court has reversed course.  After granting a motion for reconsideration and withdrawing its original opinion on December 7, 2012, the Court issued a new opinion in Rines on January 30, 2013 reversing its earlier decision, and finding that the municipal regulations at issue are not preempted by state law.

Pre-Rines case law implies that municipal regulations are likely preempted by state law if those regulations impose substantive requirements on excavation activities that are permit exempt under NH RSA chapter 155-E.  In its original decision, the Court concluded that Section VI of the Town’s zoning ordinance was preempted because it did not provide exceptions for excavations for highway purposes or for building construction, both of which are permit exempt under NH RSA chapter 155-E. 

Upon reconsideration, the Court was persuaded by the Town’s argument that the plain language of RSA 155-E:2, IV(b) reflects the Legislature’s intent not to preempt the Town’s variance requirement for excavation for highway purposes.  The Court pointed to the statute’s specific provision that excavation performed exclusively for certain highway projects “shall not be exempt from local zoning or other applicable ordinances, unless the [Department of Transportation or its agent is granted an exemption].”  According to the Court, this language reveals that the Legislature only intended to preempt local regulation of excavation for highway purposes with respect to certain statutory operational and reclamation standards.  Thus, all other regulations applicable to highway excavation are not preempted, with the exception of situations where the New Hampshire Transportation Appeals Board exempts the Department of Transportation or its agents from local regulations.
 
In the wake of the Court’s new opinion in Rines, it still appears that most excavation activities that are permit exempt under NH RSA chapter 155-E may not be regulated locally.  However, it is now clear that express statutory provisions that authorize local regulation can provide an exception to this broader rule, and save a municipal regulation that might otherwise be preempted, such as the zoning provision at issue in Rines.

If you have any questions about the Court’s new holding and its implications for local excavation permitting, please do not hesitate to contact Mark Beliveau (603-373-2002 or mbeliveau@pierceatwood.com), Matt Manahan (207-791-1189 or mmanahan@pierceatwood.com), or John Formella (603-373-2010 or jformella@pierceatwood.com).