In a November 16, 2012 alert, we discussed the New Hampshire Supreme Court's November 9, 2012 decision in Town of Carroll v. Rines. That decision concluded that state law preempts certain municipal restrictions on excavation permitting. For the facts and background of the case, that alert can be found here:
http://www.pierceatwood.com/36018
Less than three months after its initial decision in Rines, the Court has reversed course. After granting a motion for reconsideration and withdrawing its original opinion on December 7, 2012, the Court issued a new opinion in Rines on January 30, 2013 reversing its earlier decision, and finding that the municipal regulations at issue are not preempted by state law.
Pre-Rines case law implies that municipal regulations are likely preempted by state law if those regulations impose substantive requirements on excavation activities that are permit exempt under NH RSA chapter 155-E. In its original decision, the Court concluded that Section VI of the Town's zoning ordinance was preempted because it did not provide exceptions for excavations for highway purposes or for building construction, both of which are permit exempt under NH RSA chapter 155-E.
Upon reconsideration, the Court was persuaded by the Town's
argument that the plain language of RSA 155-E:2, IV(b) reflects the
Legislature's intent not to preempt the Town's variance
requirement for excavation for highway purposes. The Court
pointed to the statute's specific provision that excavation
performed exclusively for certain highway projects "shall not
be exempt from local zoning or other applicable ordinances, unless
the [Department of Transportation or its agent is granted an
exemption]." According to the Court, this language
reveals that the Legislature only intended to preempt local
regulation of excavation for highway purposes with respect to
certain statutory operational and reclamation standards.
Thus, all other regulations applicable to highway excavation are
not preempted, with the exception of situations where the New
Hampshire Transportation Appeals Board exempts the Department of
Transportation or its agents from local regulations.
In the wake of the Court's new opinion in Rines, it
still appears that most excavation activities that are permit
exempt under NH RSA chapter 155-E may not be regulated
locally. However, it is now clear that express statutory
provisions that authorize local regulation can provide an exception
to this broader rule, and save a municipal regulation that might
otherwise be preempted, such as the zoning provision at issue in
Rines.
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