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Zoning Bulletin December 10, 2012 ( Volume 6 I Issue 23 The Background/Facts: William Rines ("Rines") owned two lots in the Town of Carroll, New Hampshire (the "Town"). Rines also controlled another two lots in the Town for excavation purposes. In October 2009, the Town filed an action to enjoin Rines from excavating on all four lots. Eventually, in June 2011, the trial court held a final hearing on the Town's petition. The parties disputed the extent to which Rines was required to obtain a variance pursuant to Section VI of the Town's zoning ordinance. Section VI of the Town's zoning ordinance required a variance for "excava- tion, grading, filling or removal of any earth, loam, topsoil, sand, gravel, clay or stone on public or private land in the Town of Carroll." The trial court found that Rines had engaged in two types of excavation on the two lots: (1) excavation for highway purposes; and (2) excavation for purposes incidental to constructing a building. Rines had argued that both of those types of excavation were exempt from permitting requirements under state statutory law, RSA Chapter 155-E. RSA Chapter 155-E regulates local excavation, and distinguishes between excava- tions that require permits and those that do not. (RSA 155-E:2,:2-a.) Excava- tion for highway purposes and for building construction purposes is exempt from the statute's permitting requirements ("permit -exempt" excavations). (RSA 155-E:2, IV,:2-a, I(a).) As such, Rines argued that since section VI of the Town's zoning ordinance required a variance for those types of excavation, section VI conflicted with RSA Chapter 155-E. Rines contended that section VI of the ordinance was therefore impliedly preempted by RSA Chapter 155-E. Accordingly, Rines contended that his excavations did not require a variance. The trial court disagreed with Rines. It held that section VI of the zoning ordinance was not preempted by RSA Chapter 155-E. Because RSA Chapter 155-E did not preempt section VI of the zoning ordinance, the court concluded that Rines could not engage in either type of excavation absent a variance. Rines appealed. DECISION: Reversed, and matter remanded. The Supreme Court of New Hampshire disagreed with the trial court; it agreed with Rines' argument. The court explained that state law impliedly preempts local law when: (1) "the comprehensiveness and detail of the State statutory scheme evinces legislative intent to supersede local legislation"; (2) there is an actual conflict between state law and a municipal ordinance such as when one permits what the other prohibits; and (3) a local ordinance frustrates the statute's purpose. Thus, further explained the court, section VI of the ordinance would be preempted by RSA Chapter 155E if it: (1) purported to regulate excavations that were penmit-exempt pursuant to RSA chapter 155E; and (2) it "frustrated State authority." As to the first factor, the court noted that RSA Chapter 155E contained only "minimum" requirements for excavations that require a peiuiit. As such, municipalities were not preempted from imposing more stringent regulations upon those types of excavations. However, RSA Chapter 155E did not autho- ©2012 Thomson Reuters 3