The Rockingham Superior Court denied Rocco’s request for a writ of certiorari [1] and upheld the Salem Board of Selectmen’s decision to deny Rocco’s Used Auto Parts a renewed license to operate its junkyard.
Rocco’s had been operating as an auto salvage yard for more than fifty years, prior to zoning and licensing requirements applicable to junkyards. Therefore, although Rocco’s was considered a valid, non-conforming use, it was still required to obtain a renewed license to operate each year.
In 2008, neighbors began complaining about Rocco’s, including that it was operating after hours. As a result, when Rocco’s applied for a renewed license, the Town held several hearings. The Town thereafter refused to issue the license, determining that Rocco’s constituted a nuisance. Among other facts elicited through the hearings, Rocco’s admitted that it had no gate or fence installed to prevent trucks from making deliveries after hours.
Rocco’s filed a complaint in the Rockingham Superior Court, requesting that the Court vacate the license denial on the grounds that the decision was arbitrary, unreasonable, and unsupported by the record. Rocco’s also argued that the Town should not have held hearings prior to deciding whether the issue the license.
The Court determined that Rocco’s failure to erect a gate or fence to prohibit trucks from making deliveries after hours was enough, on its own, to support the Town’s denial of the license. Furthermore, although the applicable statute governing procedure for the issuance of annual licenses, RSA 236:121, states that a license is to be issued without a hearing upon payment of the license fee, there are several conditions that must be complied with before the Town must issue the license, including that the junkyard must not constitute a nuisance. RSA 236:119 states that a junk yard becomes a nuisance whenever it is in violation of any of the junkyard provisions, which include, under 236:123, a requirement that junk yards have a “suitable gate which shall be closed and locked except during working hours of the junk yard…or when the applicant or his agent is within.” Therefore, Rocco’s failure to install a fence constituted a nuisance, meaning that Rocco’s had not satisfied the conditions necessary to obtain a license.
Finally, despite Rocco’s arguments to the contrary, the fencing requirement under 236:123 does apply to old junk yards that qualify as valid, non-conforming uses because RSA 236:125 specifically states that an established junk yard “shall comply with…the fencing requirements set forth in RSA 236:123.” It did not matter that Rocco’s was “grandfathered” for zoning purposes; fencing is required for a junkyard to obtain a license, which is separate from zoning. Furthermore, because facts had been raised regarding whether Rocco’s failure to install a fence constituted a nuisance, the Town was entitled to hold hearings to resolve that issue before deciding whether to issue a license. Ultimately, as stated above, Rocco’s was not entitled to a license because it had not satisfied all conditions set forth in 236:121.
[1] Subsequent to this Order, Rocco’s moved for reconsideration on the grounds of municipal estoppel and collateral estoppel. That Motion was denied on October 9, 2014.