Agenda - Planning Commission - 05/06/2010

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March 25, 2010 ~ Volume 4 ~ No. 6 Zoning Bulletin The trial court ruled that the Bedaxds "impermissibly excavated in the ~ ~ ) setback area." The court ordered the Bedazds to "undertake reclama- tion" in accordance with the statute and town regulations. In its order, the court did not address the town's request for attorney's fees. The town submitted to the court a pleading requesting attorney's fees. The court denied the request. The town appealed the court's order denying its motion for attorney's fees. On appeal, the town asserted that it deserved attorney's fees based on a "substantial benefit" theory It contended that it deserved an attor- ney's fee award because its "enforcement of the regulations confer[red] a substantial benefit upon the citizens of [the town] and the State:" The town also asserted that it was entitled to attorney's fees pursuant to RSA 155-E:10, II. Section 155-E:10, II provides that the court "in its discre- tion" may award. "all costs and attorney's fees incurred in seeking (a reclamation] order to the regulator or person directly affected by such violation:" The Court's Decision: Judgment of trial court affirmed. The Supreme Court of New Hampshire held that the town was not entitled to an award of attorney's fees. The court explained that "[a]lthough each parry to a lawsuit normally ~ j bears the expense of itg-own attorney's fees, there are judicially-created and starutory exceptions to [that] rule." Judicially created exceptions award attorney's fees under two theories: (1) the "bad faith litigation" theory; and (2) the "substantial benefit" theory. Under the "bad faith lit- igation" theory, attorney's fees are found to be appropriate where "one parry has acted in bad faith, vexatiously, wantonly, or for oppressive rea- sons ...." Under the "substantial benefit" theory, attorney's fees may be awazded when a litigant's (i.e., one of the parties in the lawsuit) action confers a " `substantial benefit upon the general public."' Here, the court found the town was not entitled to attorney's fees be- cause neither of these theories applied. There was no "bad faith" on be- half of the Bed9rds. Nor had the Bedards' violation of the starute been "egregious." Also, the court refused to apply the "substantial benefit" theory "to support an award in favor of a governmental entity against a private litigant." The town's responsibIlities included protection of the public interest, said the court. Therefore, "the awazd of attorney's fees for successfully meeting [that] responsibility is neither necessary nor wazranted." The court also rejected the town's contention that it was entitled to attorney's fees pursuant to RSA 155-E:10, II. Another state statute, RSA 676:17, required the award of attorney's fees to a successful munici- pality in a planning and zoning enforcement action. The town had ar- l., j gued that because RSA 676:17 was incorporated by reference into RSA ' - 10 ©2010 Thomson Reuters 48