Supreme Court At-a-Glance Contributor Ryan M. Borden, Practicing at Ford, McDonald, McPartlin & Borden in Portsmouth, NH with a focus on bankruptcy representation of trustees, creditors and debtors, corporate law and commercial litigation.

No. 2020-0316

January 19, 2022



  • Whether the trial court erred in ruling that the defendant is operating or maintaining a junk yard in violation of RSA 326:114.
  • Whether the trial court erred in denying the Town’s request for costs and attorney’s fees.


Defendant owns property consisting of four lots in the Town’s “General Use” zoning district, which allows junk yards only by special exception. Defendant’s properties contained substantial amounts of personal belongings both indoors and in multiple sheds, which were generally in dilapidated condition.  During its view, the trial court observed large amounts of used scrap metal, non-working automobiles, old snowmobiles, lawnmowers, ATVs, an old boat, and two semi-trailers.  All of the material on the property belonged to defendant and was stored for his personal use.  Defendant did not have a license to operate a junk yard business, nor a special exemption from the Town.

The Town sought injunctive relief to stop defendant from operating a junk yard and sought imposition of civil penalties, attorney’s fees, and costs.  The trial court enjoined defendant from operating a junk yard and ordered him to abate the nuisance by a certain date and authorized the Town to impose a civil penalty of up to $50 a day for ever day after the abatement deadline.  The trial court denied the Town’s request for costs and attorney’s fees.

Both parties moved for reconsideration.  The trial court denied defendant’s motion, partially granted the Town’s, and modified its order in part, but did not grant the Town its attorney’s fees or costs.  The parties cross-appealed.

The Court rejected defendant’s argument that in drafting the junkyard statute – RSA 236 – the legislature intended it to apply only to commercial junkyards.  The Court stated the statute’s definition of junkyard is “a place” used for “storing and keeping” or “storing and selling” or “other transferring” the items enumerated in the statute.  A junkyard may exist simply by the existence of the enumerated items on a property, independent of the storage and sale of those items.  This interpretation was further bolstered by the exceptions set forth in RSA 326:112, I for “noncommercial antique motor vehicle restoration activities,” which specifically excludes such “noncommercial” activities.  The Court found that if the definition of junkyard were meant to apply only to commercial junkyards, the exception would be superfluous.

The Court rejected defendant’s argument that the trial court erred in ruling that all four parcels were junkyards without regard to the quantity of each item on each parcel.  The Court found that the trial court’s view of the properties demonstrated each of the four parcels met the definition of junkyard as to the storage of the type and quantity of the enumerated items in the statute.

The Court rejected defendant’s final argument that, because his four parcels of land are within the limited access highway system for Interstate 93, RSA 236:90-:110 was the correct statutory subdivision to apply.  The Court held that because the provisions of RSA 326:111-:129 apply to all junk yards as defined in RSA 326:112, I, it applied to junkyards subject to regulation under RSA 236:90-:110.

Turning to the Town’s appeal, the Court upheld the trial court’s ruling that the Town failed to prove the defendant’s use of his properties constituted a junk yard under the Town’s zoning ordinance, and therefore it was not entitled to attorney’s fees under RSA 676:17, II.  The trial court found that the Town’s ordinance did not define “Junk Yard” and did not incorporate RSA 236:112’s definition of “Junk Yard.”  The trial court had rejected the Town’s only evidence that it presently interprets Junk Yard as defined in RSA 236:112, as such evidence was not competent evidence of the enacting body’s intent.  Turning to the dictionary, the trial court had held that the Town’s definition of Junk Yard required sale or reselling of junk.

The Court held that viewing the zoning ordinance as a whole, the Town regulated junk yards as an industrial use, the storage of one’s own personal property was not an industrial use, and the defendant’s use was not a violation of the Town’s zoning ordinance.  Because the Town made no other argument in support of an award of cost and attorney’s fees under RSA 676:17, II, the Court affirmed the trial court’s denial of attorney’s fees and costs.


Hastings Malia, Fryeburg, Maine (Peter J. Malia and Jason B. Dennis, on the brief, and Peter J. Malia orally), for the plaintiff.  Bruce J. Marshall Law Offices, Bow (Bruce J. Marshall on the brief and orally), for the defendant.