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“Evolution of Excavation Regulations Highlights Struggle to Balance State and Local Authority,” The New Hampshire Bar News, Jun. 21, 2017

By Leigh S. Willey and Jonathan M. Boutin

            New Hampshire consistently ranks as one of the best places to live in the country, scoring at or near the top of the class in subjects such as opportunity, health care and education. On infrastructure, however, the Granite State recently received a C- from the American Society of Civil Engineers on its March 2017 Infrastructure Report Card – barely a passing grade.

Addressing New Hampshire’s deteriorating infrastructure, whether at the state or local level, is viewed by many in the state as a priority. But like most everything else, it is easier said than done. Calls for substantial infrastructure investment are usually met with pushback over costs and funding, which leads to discord and eventually gridlock. One way to potentially alleviate this problem is to shift the focus from raising revenue to controlling costs and other constraints that hinder the improvements.

Balancing State and Local Control

The New Hampshire Legislature endorsed this approach in 1989 when it enacted comprehensive amendments to RSA 155-E, which regulates commercial excavation operations. Under RSA 155-E, all commercial excavation sites are subject to statewide operational and reclamation standards. The standards are administered locally by municipal boards through a site-specific permitting process.

Most commercial excavation operations manufacture construction aggregates. Construction aggregates – primarily crushed stone, sand and gravel – are essential to infrastructure projects. Excavation operations, like solid waste facilities, are controversial enterprises. Concerns about safety, environmental impacts, traffic and noise dominate the permitting process. Municipal boards often respond to public disapproval by imposing conditions and restrictions on the excavation operations.

Appropriate regulation is, of course, necessary. However, overregulation may bring about unintended consequences, such as fewer excavation operations and consequently, diminished supplies of materials. The availability of construction aggregates directly affects the cost of the infrastructure improvements. As a general rule, the less available a resource is, the more expensive.

The 1989 amendments addressed the correlation between local overregulation of excavation operations, which curtailed the supply of construction aggregates, and the increased costs of improving the state’s infrastructure. The amendments sought to balance these economic factors with the need for some local oversight. The degree of such oversight was less than clear, and costly litigation ensued.

Two years later, the Legislature made further amendments to RSA 155-E, to clarify uncertainties in the 1989 law. The 1991 amendments specifically empowered local officials to impose more stringent regulations than those delineated in the statute for certain types of excavations. But the extent of allowable local control remains unclear, as the New Hampshire Supreme Court cases discussed below illustrate.

Review of the Case Law

Shortly after RSA 155-E was amended in 1991, the NH Supreme Court decided Arthur Whitcomb Inc. v. Town of Carroll. Whitcomb involved a stationary manufacturing plant in Carroll, New Hampshire, that had been in operation since 1972. The plant manufactured and processed construction aggregates excavated from the property. In 1994, the Carroll planning and zoning boards granted Whitcomb permission to operate the plant subject to several restrictions. Whitcomb appealed the boards’ decisions to the Superior Court, which granted summary judgment in Whitcomb’s favor.

On appeal, the Supreme Court first considered the overarching question of whether RSA 155-E preempted Carroll’s regulations pertaining to commercial excavations. The Court ruled that the statute, comprising specific regulatory requirements and reclamation standards for excavation operations, manifested the Legislature’s intent to preempt local land use ordinances and regulations relating to such activities. The Court, however, stopped short of declaring all local regulation void and unenforceable. Rather, the Court implicitly recognized that certain regulations, such as traffic and noise control, are traditionally areas of local responsibility.

The Court, which reversed and remanded the case for further proceedings in Superior Court, further ruled that local regulations that do not conflict with RSA 155-E, and that are administered in good faith, may be applied to excavations. The Court did not explain what it meant by “in good faith” or provide factors to be considered in making that determination. Is a local restriction valid if it is administered in good faith, but effectively puts the excavation operation out of business? This remains an open question.

More than a decade passed before the Supreme Court was asked to again interpret the contours of RSA 155-E. In Guildhall Sand & Gravel LLC v. Town of Goshen, relying on the Whitcomb holding, a commercial excavation business argued that Goshen’s excavation regulations were unenforceable because they were preempted by RSA 155-E. The Court used this opportunity to further parse the statute, distinguishing between excavations that do not require a permit (e.g., existing excavations, highway excavations and stationary manufacturing plants) and those that do.

Guildhall clarified that the Whitcomb holding was confined to permit-exempt excavations. The Court focused its analysis on two sections of the statute that address the “express” and “minimum” standards applicable to excavations, ruling that “express standards” were statutorily required standards applicable only to permit-exempt excavations.

Although Guildhall clarified the preemptive scope of RSA 155-E, it left open the question of whether municipalities could regulate permit-exempt excavations and if so, to what extent.

The Supreme Court revisited this question a short time later in Town of Carroll v. Rines, in which an owner appealed a Superior Court order enjoining him from excavating on his property for highway purposes, until he obtained a variance from the town. The owner argued that because his excavations were for highway purposes, and therefore permit-exempt under RSA 155-E:2, IV, the town’s variance requirement was preempted. The Court disagreed.

The general preemptive effect of RSA 155-E does not automatically invalidate statutory provisions that authorize local regulation and control. Relying on the language of RSA 155-E:2, IV(b), which specifically provides that highway excavations “shall not be exempt from local zoning or other applicable ordinances,” the Court ruled that the Legislature’s intent to preempt regulation of highway construction excavations was limited to the “express” statutory operational and reclamation standards in RSA 155-E:4-a and :5. Other local controls, like requiring a variance, are not preempted.

The past 20 years have seen a subtle, but consistent expansion in the role municipalities play in the regulation of excavation operations and the administration of RSA 155-E. This is expected to continue. As political pressure to address New Hampshire’s ageing infrastructure mounts, the demand for construction aggregates will increase. New and existing excavation operations will undoubtedly test the boundaries of permissible local regulation and control, to the extent such control differs from the State’s overarching public policy statements.