Agenda - Planning Commission - 01/07/2016

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November 25, 2015 I Volume 9 I Issue 22 Zoning Bulletin imposed a fine of $344,025. against Furlong. That fine was for a total of 1,132 days of zoning violation, calculated from the date of the land use citation to the date of the final hearing on January 18, 2012, with credit given to Furlong for 506 days for the period while the appeal was pending, which left 626 days during which he was in violation. Pursuant to New Hampshire statutory law—RSA 676:17, I—the court imposed a fine of $275 for the first day of violation and 625 fines of $550 for each subsequent day, for a total fine of $344,025. Furlong appealed. Furlong argued that the trial court did not have juris- diction to impose a penalty greater than $25,000. Furlong noted that at the time the case against him was filed in December 2008, the controlling law for the interpretation of RSA 676:17, I, limited a district court's jurisdic- tion to claims not exceeding $25,000. Furlong pointed to case law that had found that statute did not provide that each day of violation constituted a separate offense. Furlong contended that when read together with RSA 502-A:14, II—which limits the district court's jurisdiction to claims not exceeding $25,000 here the district court was prohibited from imposing a penalty greater than $25,000. The Town, on the other hand, noted that courts have held that, under certain circumstances, a district court may retain jurisdiction even though the aggregate amount of damages awarded for individual violations exceeds the jurisdictional limits in RSA 502-A;14, II. The Town further noted that, after the case here was filed but before it was decided, the state Legislature amended RSA 676:17, I, by adding language stating that "[e]ach day that a violation continues shall be a separate offense." The Town contended that the amendment was not a substantive change in the law and therefore should be applied retrospectively in the case at hand. DECISION: Judgment of Circuit Court affirmed. The Supreme Court of New Hampshire agreed with the Town. The court held that the amendment to the zoning fines and penalties statute—RSA 676:17, I—applied retroactively, and thus the court could impose the fine of $344,025 for Furlong's ongoing ordinance violation. In so holding, the court explained that when, as here, the legislature is silent as to whether a statute should apply prospectively or retrospectively, the court's interpretation turns on whether the statute affects the parties' substantive or procedural rights. "When a statute is remedial or procedural in nature, it may be applied to cases pending at the time of enactment," said the court. "If application of a new law would adversely affect an individu- al's substantive rights, however, it may not be applied retroactively." The court further explained that a remedial statute "is one designed to cure a mischief or remedy a defect in existing laws," and a statute affecting substantive rights is one that affects "vested rights." Here, looking at the legislative history of the amendment to RSA 676:17, I, the court found that the amendment was "intended to remedy a perceived defect in the law . . . that could deter municipalities from filing zoning enforcement cases in the district court if the penalties for ongoing viola - 8 © 2015 Thomson Reuters