Town wins against Osborns, but THEY win TOO!

Article submission please. Supreme Court Decision of Osborn Appeal . The direct address of the court's home page is: http://www.courts.state.nh.us/supreme. THE SUPREME COURT OF NEW HAMPSHIRE ___________________________ Rockingham No. 2011-085 TOWN OF ATKINSON v. MALBORN REALTY TRUST & a. Argued: June 13, 2012 Opinion Issued: August 17, 2012 Sumner F. Kalman, Attorney at Law, P.C., of Plaistow (Thea S. Valvanis and Sumner F. Kalman on the brief, and Mr. Kalman orally), for the petitioner. McGrath Law Firm, P.A., of Concord (Peter McGrath and Jason Beecher on the brief, and Mr. McGrath orally), for the respondents. CONBOY, J. The respondents, Malborn Realty Trust and its trustee, Daniel Osborn, appeal an order of the Superior Court (McHugh, J.) that enjoined Osborn from occupying property in Atkinson because he lacks an occupancy permit and that imposed a civil penalty for this violation. See RSA 676:15 (2008), :17 (Supp. 2011). The petitioner, Town of Atkinson (Town), cross-appeals the trial court’s failure to award it attorney’s fees. See RSA 676:17, II. We affirm the trial court’s issuance of the injunction, modify its imposition of civil penalties, reverse its denial of attorney’s fees, and remand. The trial court found the following facts. Before 2007, the subject property was a seasonal camp. In June 2007, the Town’s zoning board of adjustment granted Osborn a variance to convert the property to year-round use and to construct a new three-bedroom home. One condition of the variance was that access to the property had to “meet the requirements of the Police and Fire Departments.” In 2008, Osborn applied for a building permit. The Town’s fire chief reviewed the application and recommended that the building permit be conditioned upon the installation of a sprinkler system because the property had poor access to a class V highway. See RSA 229:5 (2009) (setting forth highway classification system). The building inspector adopted this recommendation, and, in May 2008, issued the conditional building permit. On September 30, 2008, Osborn’s wife, Margaret, met with the Town’s fire chief to discuss the Osborns’ plan to improve access to the property by constructing a new driveway. The fire chief agreed that a satisfactory driveway could eliminate the need for a sprinkler system. In October 2008, the Osborns submitted a proposed plan to build a driveway with a 23% grade, which the Town immediately rejected. In subsequent meetings, the fire chief told Margaret that although the required grade was 8%, he would accept a driveway with a 10% grade. The Osborns never submitted a satisfactory driveway plan to the fire chief. Ultimately, without the fire chief’s consent, they installed a driveway with a 13.7% grade. They did not install a sprinkler system. Because the home lacked the required sprinkler system, the Town declined to issue a certificate of occupancy for it. Nonetheless, the Osborns moved into the home on November 30, 2009. According to the Town’s building code, it is unlawful to occupy a building without a certificate of occupancy. On or about December 14, 2009, the Town served Osborn with notice that occupying the home violated the Town’s building code. The notice stated that the Town could bring an enforcement action under RSA 676:15 and an action for civil penalties and attorney’s fees under RSA 676:17. In March 2010, the Town filed such an action. Later that month, following a hearing on the Town’s request for a preliminary injunction, the court ordered Osborn to vacate the premises. He and his family did so on July 1, 2010. After conducting a bench trial and a view of the premises, the trial court: (1) permanently enjoined Osborn from occupying the premises without a certificate of occupancy; (2) ruled that no certificate of occupancy could be issued until a sprinkler system is installed in the house; and (3) imposed a civil penalty of $109,725. The trial court also ruled that the Town was the prevailing party and was entitled to its reasonable attorney’s fees pursuant to RSA 676:17, II. Although the court originally awarded the Town reasonable attorney’s fees of $20,000, it later vacated this award in its entirety in response to the respondents’ motion for reconsideration. This appeal and cross-appeal followed. The respondents challenge the trial court’s decision to issue the requested injunction and, alternatively, its calculation of the civil penalty. In its cross-appeal, the Town challenges the trial court’s denial of its request for an award of reasonable attorney’s fees. We first address the respondent’s appeal. For those of you unfamiliar with this case, here are the headlines. The Osborns bought 3 small lake lots up on Valcat ln., and combined them to build a McMansion on the property. Originally they were approved for a 1,400 sq.ft. house because of the lot size, and it's inaccessibility to fire emergency equipment. They PROMISED to install a sprinkler system in exchange for approval for a 2,600 sq.ft. home. ONE condition was that they had to have direct access to a Class V road. They CLAIMED they did, not mentioning that they had to destroy Carol Davis property to lay it across her land to comply. They did, and Mrs. Davis sued, won, and they lost their pretty new illegal driveway. In the mean time, they CHANGED the plans they submitted to get their building permit, hiring Silverlake associates to design a 4,000 sq.ft. McMansion. In spite of the fights with the town, as they tried to wiggle out of their promise to install the sprinkler system, they built the current 4,000 sq.ft. home, while building their driveway across Mrs. Davis' land. Although the town refused to give them an occupancy permit without reducing the grade to comply with their permit (8%), the town later relaxed this to 10%, NEITHER of which they met, They MOVED INTO THEIR NEW HOME! They cut down the top of the ridge along Valcat ln, by approximately 10 ft. in their quest to reduce the grade, but the closest they could come was a 13.9% grade. Not enough for fire trucks to make it up. So to summarize; They applied and got a permit to build a 2,600 sq.ft. home with a sprinkler system, and direct access to a Class V road, with no more than an 8% grade. They then redesigned the home to approximately 4,000 sq.ft., with NO sprinkler system, NO direct access, NO 10% grade, and they DESTROYED their neighbors land to do so. AND they have been living illegally in the house for most of 3 years! They lost their case with Mrs. Davis. They Lost their case with the town. but here is the sad part. The Town SHOULD have received a fine of $275 the first day they were living in the house illegally, and $575 every successive day. BUT, because of how Sumner filed this, and the notification of this fine system the town was shorted this money, only being eligible for $50,000 in fines, and $20,000 in legal fees. Had the town PROVED they were living in the house illegally all that time, the fines would have been around the $500,000 mark. Corruption lives and thrives in Atkinson. As does Crappy Neighbors!