The City of Rochester relied on its ordinance and on the state motor vehicle junkyard statute, RSA Chapter 236, to require a property owner to clean up his property and to fine him for the violations. The Court found, however, that when a local ordinance conflicts with the state law with regard to motor vehicle junkyards, the local ordinance, even if less stringent than the state statute, will control. The Court also ruled that trial courts have the authority to determine whether or not to impose penalties allowed pursuant to RSA 676:17, I (b) (now RSA 676:17, I), against those who violate any provision of zoning and planning statutes or local ordinances. The phrase “shall be subject to” does not mean such penalties must be assessed.
RSA 236:112 defines, in part, a motor vehicle junkyard as any place where a quantity equal in bulk to two or more motor vehicles no longer intended or in condition for legal use according to their original purpose are located. The city ordinance defines a motor vehicle junkyard as a place where two or more unregistered motor vehicles are no longer intended or in condition for legal use on the public highways are located. Thus, a person could come into compliance with the city’s ordinance by registering the vehicles on the property, but this would not bring the property into compliance with the state statute. In finding that the local ordinance controls, the Court pointed to the language in RSA 236:124, Effect of Local Ordinances, which provides:
“This subdivision is not in derogation of zoning ordinances or ordinances for the control of junkyards now or hereafter established within the proper exercise of police power granted to municipalities, but rather is an aid thereof. Specific local ordinances shall control when in conflict with this subdivision.”
The city argued that allowing the property owner to simply register the vehicles to be in compliance with the local ordinance, but not comply with the state statue, would defeat the purposes of Chapter 236. The Court disagreed, pointing out that by registering the vehicles, the property owner would no longer be operating an unlicensed motor vehicle junkyard on the property, supporting the underlying purposes of RSA Chapter 236. Moreover, even if a local ordinance is a less effective method of serving the purposes set forth in RSA 236:111, the Court noted that the legislature has specifically authorized municipalities to enforce less protective ordinances. The Court said that if the legislature intended RSA 236:111-129 to provide minimum standards binding on all municipalities, it could have said so in the statute.
The Court concluded that the plain language of RSA 236:124 indicates that there was no legislative intent for state law to preempt local ordinances and comprehensively regulate the field of motor vehicle junkyards.
On the issue of civil penalties allowed by RSA 676:17, the city objected to the trial court’s denial of civil penalties. The trial court reasoned that the imposition of fines would make it financially difficult for the property owner to bring the property into compliance with the terms of its order. The city objected, arguing that the provision contained in RSA 676:17, I (b): “shall be subject to a civil penalty...” means the penalties are mandatory and must be assessed by the court. On appeal, the Court pointed out that the general rule of statutory construction is that the word “may” makes enforcement of a statute permissive and that the word “shall” requires mandatory enforcement. (quoting Town of Nottingham v. Harvey, 120 N.H. 889, 895 (1980). However, in this case, the Court found the words “be subject to” as modifying the word “shall,” affecting the overall meaning of the clause. Agreeing with the trial court in not assessing penalties against the property owner, the Court held that “shall be subject to” grants the trial court the authority to impose penalties as set forth in RSA 676:17, I (b) but does not require them to do so.
In a dissenting opinion, Chief Justice Broderick noted that he did not believe that the legislature intended its definition of motor vehicle junkyard in RSA 236:112 to be “merely a gap-filler” in the event that a municipality had not legislated in that area. Instead, he reasoned RSA 236:112 creates minimum standards with respect to motor vehicle junkyards and does not, as the majority held, allow municipalities to enforce less protective ordinances. Justice Broderick argued that the phrase “when in conflict,” found in RSA 236:124, means “when more restrictive than.”
The dissenting opinion also disagreed with the plain and ordinary meaning analysis used by the majority to reach the conclusion that the trial court was merely authorized, not obligated, to issue a fine. Rather, the dissenting opinion suggests it is necessary for the Court to consider the legislative history of RSA 676:17 to determine the legislature’s intent in choosing the phrase “shall be subject to.” The dissenting opinion did not, however, address the issue of whether the majority’s conclusion with respect to the trial court’s decision not to assess civil penalties was correct.