Asselin v. Town of Conway

• Decision Date: 02 July 1993
• Docket Number: No. 92-298,92-298
• Citation: 137 N.H. 368,628 A.2d 247
• Parties: , 30 A.L.R.5th 813 Michael ASSELIN, d/b/a Mario's Restaurant, and another v. TOWN OF CONWAY. TOWN OF CONWAY v. CARDIFF & COMPANY.
• Court: New Hampshire Supreme Court

Page 247

628 A.2d 247

137 N.H. 368, 30 A.L.R.5th 813

Michael ASSELIN, d/b/a Mario's Restaurant, and another v. TOWN OF CONWAY.

TOWN OF CONWAY v. CARDIFF & COMPANY.

No. 92-298.

Supreme Court of New Hampshire.

July 2, 1993.

Charles H. Morang, Concord, on brief and orally, for plaintiffs, Michael Asselin, d/b/a Mario's restaurant, and for the defendant, Cardiff & Co.

Hastings Law Office, P.A., Fryeburg, ME (Peter G. Hastings on the brief and orally), for Town of Conway.

JOHNSON, Justice.

Michael Asselin, doing business as Mario's restaurant; Barlo Signs, Inc.; and Cardiff & Company (hereinafter Cardiff) appeal from a judgment in Superior Court (O'Neil, J.) upholding the validity of the sign illumination provision of the Conway zoning ordinance, and denying their request for costs and attorney's fees. The trial court affirmed the decision of the zoning board of adjustment (ZBA) of the Town of Conway (the town), denying a permit application for an internally lit sign that Barlo Signs, Inc. leased to Asselin. In another matter consolidated for trial, the superior court issued a temporary injunction enforcing the ordinance's regulation of Cardiff's sign. We affirm because the provision is a reasonable zoning regulation, consistent with the due process requirements of the State Constitution.

Nestled in the Mount Washington Valley, Conway historically has been a tourist destination for activities in the White Mountain National Forest. Route 16 links the villages of Conway and North Conway and offers striking views of the mountains and ledges to the west. Substantial commercial development, primarily along this highway, has rendered part of the town a shoppers' Mecca. Hundreds of signs draw tourists in the day and evening hours to the shopping centers, lodging facilities, and restaurants clustered in the villages of Conway and North Conway and lining Route 16.

The town passed its first zoning ordinance in 1982, requiring all property owners, with certain exceptions, to obtain a permit from the town zoning officer before erecting a sign. Since 1982, the ordinance has banned signs "illuminated from within," but has allowed the use of signs illuminated by external lights.

Michael Asselin is a town resident who owned Mario's restaurant on Route 16 in North Conway. In December 1988, Asselin acquired a permit to erect an externally lit sign. Barlo Signs, Inc. leased to Asselin a sign for Mario's restaurant capable of internal illumination. The town notified Asselin that the sign's internal lighting violated the zoning ordinance, and the ZBA denied him permission to use an internally lit sign. Asselin and Barlo Signs, Inc. (hereinafter the Asselin plaintiffs) appealed the ZBA's decision pursuant to RSA 677:4 (1986). The trial court found the sign illumination provision valid and upheld the ZBA's decision.

The trial court's consideration of the Asselin plaintiffs' claims was consolidated with the town's petition for a temporary injunction against Cardiff. Cardiff owns the Indian Head Village Plaza shopping center on Route 16 in North Conway. In February 1990, the town issued Cardiff a permit to erect a sign described in the permit application as externally lit. The two faces of the sign are translucent, and lights in the sign's supporting posts can shine against mirrored surfaces that reflect the light out through the sign faces. Cardiff was convicted in district court in June 1990 of five violations of the sign illumination provision but failed to file a timely appeal. The town petitioned the superior court to enjoin Cardiff from using the lights within the posts to illuminate the sign, and that action was consolidated with the Asselin plaintiffs' action. Following a hearing on the merits, the trial court issued an injunction.

We first address Cardiff's argument that the sign illumination provision of the town zoning ordinance is impermissibly vague. The regulation at issue provides: "Signs shall not be illuminated from within; signs may be illuminated only by external light." Due process requires that an ordinance proscribing conduct "not be so vague as to fail to give a person of ordinary intelligence a reasonable opportunity to know what is prohibited." State v. Winslow, 134 N.H. 398, 399, 593 A.2d 238, 240 (1991) (quotation omitted); see generally E. Ziegler, Jr., Rathkopf's The Law of Zoning and Planning § 5.03, at 5-35 to -37 (1991). Construing the terms of the provision according to their generally accepted usages, see Winslow, 134 N.H. at 400, 593 A.2d at 240, we reject the argument that it is impermissibly vague. A person of ordinary intelligence reading the ordinance could understand that it proscribes all methods of sign illumination that cast light from within the sign out through the faces of the sign. Cardiff's sign, designed so that reflective surfaces inside the sign cast light out through the sign faces, plainly falls within the ordinance's proscription. We hold that the sign illumination provision is not unconstitutionally vague.

We next consider whether the State zoning enabling act authorized the town to pass the sign illumination provision solely to promote aesthetic values, including preserving scenic vistas, discouraging development from competing with the natural environment, and promoting the character of a "country community." The State zoning enabling act grants municipalities broad authority to pass zoning ordinances for the health, safety, morals, and general welfare of the community. See RSA 674:16, I (1986 & Supp.1992); Britton v. Town of Chester, 134 N.H. 434, 441, 595 A.2d 492, 496 (1991); Sanderson v. Town of Greenland, 122 N.H. 1002, 1005, 453 A.2d 1285, 1287 (1982).

"The concept of the public welfare is broad and inclusive. The values it represents are spiritual as well as physical, aesthetic as well as monetary. It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well-balanced as well as carefully patrolled."

Berman v. Parker, 348 U.S. 26, 33, 75 S.Ct. 98, 102-03, 99 L.Ed. 27 (1954) (citation omitted). Consistent with this expansive view, we have held that towns may consider, at least among other factors, "aesthetic values, such as preserving rural charm," when passing zoning regulations under State law. Town of Chesterfield v. Brooks, 126 N.H. 64, 69, 489 A.2d 600, 604 (1985); see also RSA 674:17, II (1986). We now conclude that municipalities may validly exercise zoning power solely to advance aesthetic values, because the preservation or enhancement of the visual environment may promote the general welfare. See RSA 674:16, I; Opinion of the Justices, 103 N.H. 268, 270, 169 A.2d 762, 764 (1961). We hold that the town in this case has not exceeded its authority under RSA 674:16 by relying exclusively on the promotion of aesthetic values for its exercise of zoning power.

The next issue is whether the Conway sign illumination provision is a reasonable exercise of the town's police power. See N.H. CONST. pt. I, arts. 2, 12. The trial court found the provision valid after subjecting it to a level of scrutiny analogous to the "rational basis test" employed in certain equal protection cases. See generally P. Loughlin, 1 New...