McKenzie v. Town of Eaton Zoning Bd. of Adjustment

• Decision Date: 31 January 2007
• Docket Number: No. 2005–778.,2005–778.
• Citation: 154 N.H. 773,917 A.2d 193
• Court: New Hampshire Supreme Court
• Parties: Kenneth McKENZIE v. TOWN OF EATON ZONING BOARD OF ADJUSTMENT.

154 N.H. 773

917 A.2d 193

Kenneth McKENZIE

v.TOWN OF EATON ZONING BOARD OF ADJUSTMENT.

No. 2005–778.

Supreme Court of New Hampshire.

Argued: Nov. 14, 2006.

Opinion Issued: Jan. 31, 2007.

Hastings Law Office, P.A., of Fryeburg, Maine (Peter J. Malia, Jr. on the brief and orally), for the plaintiff.

Gardner, Fulton & Waugh, P.L.L.C., of Lebanon (H. Bernard Waugh, Jr. on the brief and orally), for the defendant.

Melendy & Lee, P.A., of Conway (Fay E. Melendy on the brief and orally), for the intervenor.

GALWAY, J.

The defendant, the Town of Eaton Zoning Board of Adjustment (ZBA), and the intervenor, Nancy Burns, appeal a ruling of the Superior Court (Fauver, J.) that upheld the constitutionality of an ordinance enacted by the Town. We affirm.

The record supports the following. In 1981, the town issued a building permit to Burns, allowing her to place a storage shed fifty-nine feet from the shore of a lake abutting her property. In 1989, the town increased the setback requirements to 125 feet from the shore of the lake, thus making the shed nonconforming with the zoning ordinance. Also in 1989, the town passed Article VI, Section 2 of the Town of Eaton Zoning Ordinance, which stated, in pertinent part:

Any structure damaged by fire, deterioration, or other casualty to the extent of seventy-five (75) per cent or more of the floor area in square feet and is not reconstructed within one (1) year shall constitute discontinuance and abandonment under Article VI, 1.a. above and shall not be reconstructed or used except in conformity with this ordinance. The Board of Selectmen may permit the reconstruction or use of such building or structure substantially as it was prior to destruction upon finding that the same will not be detrimental or injurious to the neighborhood. If, for any reason, this permit is not granted such damaged structure shall be removed to clear ground level and put into safe condition within one (1) year following the date of damage. Any time after the expiration of said one (1) year, the Board of Selectmen may cause such removal to be done at the expense of the owner.

Article VI, Section 2 was still in effect on June 2, 2002, when a windstorm caused trees to fall on Burns' shed and damage it in excess of seventy-five percent of its floor area.

In March 2003, Burns met with the Eaton Selectmen and indicated that she wanted to rebuild her shed. The selectmen told her that "[t]he building does not meet setbacks but is grandfathered so it can be replaced with a building the same size and on the same footprint as before." By June 2, 2003, however, Burns had not rebuilt her shed or removed the debris left by the storm. On June 4, 2003, Kenneth McKenzie, an abutter and the plaintiff in this case, wrote to the selectmen, requesting that Burns remove the remnants of the shed and the debris on her property as required by Article VI, Section 2. The selectmen notified Burns on August 19, 2003, of her duties under this provision. Burns subsequently applied for a building permit to rebuild her shed, which the selectmen granted on August 26, 2003. McKenzie appealed the selectmen's decision to the ZBA. The ZBA reversed the selectmen's issuance of the building permit because it was not issued within the one-year period required by the ordinance. Burns filed for rehearing, which the ZBA granted. After a rehearing, the ZBA reversed its prior decision and affirmed the selectmen's issuance of the building permit.

McKenzie appealed the ZBA's decision to the superior court, arguing that the ordinance provision at issue was clear and unambiguous and that the ZBA failed to properly apply it. McKenzie asserted that the ZBA erred by relying upon the abandonment test established in Lawlor v. Town of Salem, 116 N.H. 61, 352 A.2d 721 (1976), which considers whether the property owner intended to abandon the nonconforming use. McKenzie also argued that the ZBA acted ultra vires by declaring the ordinance provision unconstitutional. The ZBA disagreed, arguing that it had the authority to decide whether the ordinance provision was unconstitutional and that it properly considered Burns' subjective intent because such a consideration was constitutionally required by Lawlor. The trial court agreed with both parties' conclusions that the ZBA had found the provision unconstitutional and had determined that Burns did not intend to abandon her nonconforming use. The trial court reversed the decision of the ZBA, ruling that, while the ZBA's consideration of intent may have been reasonable in the absence of the ordinance provision, the terms of the provision allowed the ZBA no discretion in determining abandonment. Because Burns failed to reconstruct her shed within one year of its destruction, the trial court found the ZBA's decision unreasonable. The court also ruled that it could not find the ordinance unconstitutional.

On appeal, the ZBA and Burns first argue that the trial court erred by interpreting the ZBA's decision as finding that the ordinance provision was facially unconstitutional under substantive due process. They assert that the ZBA actually found the provision unconstitutional as applied. They argue that, had the trial court properly interpreted the ZBA's decision, the court would have recognized that the provision would not apply to the shed because RSA 674:19 (1996) prohibits the application of new zoning ordinances to existing buildings. The appellants' second argument is that a consideration of subjective intent pursuant to the Lawlor test is required by the New Hampshire Constitution when determining abandonment of a nonconforming use. Because the ordinance provision precluded a consideration of intent, the appellants argue, the trial court erred in reversing the ZBA.

McKenzie responds that, because the ZBA and Burns did not raise the effect of RSA 674:19 at trial, this issue is not preserved for our review. McKenzie additionally argues that the trial court was correct to rule that the ZBA should not have considered Burns' intent because intent is not a factor for determining abandonment under the plain language of the ordinance.

I

Before we address the parties' arguments, we note that we agree with their interpretation that the ordinance provision at issue precludes a consideration of a property owner's subjective intent when determining whether the owner has abandoned a destroyed nonconforming use or structure. The provision states that a nonconforming use that is sufficiently destroyed and is not rebuilt within a year "shall constitute discontinuance and abandonment" and "shall not be reconstructed or used except in conformity with this ordinance." It is a general rule of statutory construction that the word "shall" makes enforcement mandatory. In the Matter of Bazemore & Jack, 153 N.H. 351, 354, 899 A.2d 225 (2006). Accordingly, we interpret the ordinance as precluding a consideration of intent in determining abandonment. As we are the final arbiter of the interpretation of a zoning ordinance, Olszak v. Town of Hampton, 139 N.H. 723, 726, 661 A.2d 768 (1995), we will apply our interpretation throughout this opinion.

II

The ZBA and Burns first argue that the ordinance provision should not apply to Burns' shed because RSA 674:19 prohibits the application of zoning ordinances to buildings in existence prior to the enactment of the ordinance provision. We conclude that this issue is not preserved for our review and therefore decline to address it. See LaMontagne Builders v. Bowman Brook Purchase Group, 150 N.H. 270, 274, 837 A.2d 301 (2003). It is a long-standing rule that parties may not have judicial review of matters not raised at trial. N. Country Envtl. Servs. v. Town of Bethlehem, 150 N.H. 606, 619, 843 A.2d 949 (2004). As the appellants, the ZBA and Burns have the burden, not only of providing a record sufficient for our review, but also of demonstrating that, before raising issues on appeal, they first raised those issues to the trial court. See Bean v. Red Oak Prop. Mgmt., 151 N.H. 248, 250, 855 A.2d 564 (2004) ; Sup.Ct. R. 16(3)(b). Because the appellants have not shown that they raised the effect of RSA 674:19 to the trial court, we conclude that this issue is not preserved for appeal and decline to review it.

III

The ZBA and Burns next contend that a consideration of intent pursuant to Lawlor is constitutionally required to determine abandonment. On appeal from a trial court's decision regarding a zoning board of adjustment's decision, we will uphold the trial court's decision unless it is unsupported by the evidence or is legally erroneous. Greene v. Town of Deering, 151 N.H. 795, 797–98, 868 A.2d 986 (2005). Because the constitutionality of an ordinance provision involves a question of law, we review the trial court's decision de novo . Taylor v. Town of Plaistow, 152 N.H. 142, 144, 872 A.2d 769 (2005). We are the final arbiter of state constitutional disputes. Baines v. N.H. Senate President, 152 N.H. 124, 129, 876 A.2d 768 (2005). Zoning ordinances are presumed to be valid, and the challengers bear the burden of proving them unlawful. Morgenstern v. Town of Rye, 147 N.H. 558, 562, 794 A.2d 782 (2002).

The ZBA and Burns are correct that the Lawlor test for abandonment considers the property owner's intent to abandon a nonconforming use; however, we established that test in the absence of an applicable ordinance defining abandonment. In this case, an ordinance directly applies and permits the abandonment of a nonconforming use without a consideration of intent. We note that courts of other jurisdictions, as well as legal scholars, have concluded that a consideration of intent to abandon is not necessary when an ordinance defines abandonment without a consideration of intent. See Toys "R" Us v. Silva, 89 N.Y.2d 411, 654 N.Y.S.2d 100, 676 N.E.2d 862, 867 (1996) (stating that, generally, abandonment requires an intent to relinquish and some overt act or failure to act, but that "the inclusion of a lapse period in...