Beck v. Town of Raymond

• Decision Date: 17 November 1978
• Docket Number: No. 78-074,78-074
• Citation: 118 N.H. 793,394 A.2d 847
• Parties: Richard BECK v. The TOWN OF RAYMOND.
• Court: New Hampshire Supreme Court

Page 847

394 A.2d 847

118 N.H. 793

Richard BECK v. The TOWN OF RAYMOND.

No. 78-074.

Supreme Court of New Hampshire.

Nov. 17, 1978.

Casassa, Mulherrin & Ryan, Hampton (John J. Ryan, Hampton, orally), for plaintiff.

Kearns & Colliander, Exeter (Peter F. Kearns), Exeter, for defendant.

Craig, Wenners, Craig & McDowell, Manchester (William H. Craig, Manchester, orally), for intervenor New Hampshire Home Builders Ass'n.

Wadleigh, Starr, Peters, Dunn & Kohls, Manchester (E. Blake Redding, Manchester, orally), for amicus curiae town of Auburn.

Duane Searles, Arlington, Va., member of the Virginia Bar, orally for amicus curiae Nat. Home Buildings Ass'n.

Brown and Nixon P.A., Manchester, by brief for amici curiae towns of Hollis and Hooksett.

BOIS, Justice.

The plaintiff in this case challenges the validity and application of the town of Raymond's "slow-growth" ordinances. After he was denied a building permit on the basis of those ordinances, the plaintiff brought a petition for declaratory relief and an application for a writ of mandamus. The court (Mullavey, J.) denied relief, and reserved and transferred the plaintiff's exceptions. We reverse.

On March 8, 1977, at the annual town meeting, Raymond passed an amendment to its zoning ordinance which limits the availability of residential building permits. It sets the following ceiling on the number of building permits that landowners may be issued in each "building year," which runs from April 1 to March 31: four permits per year for those who own fifty or more acres of land; three permits per year for those who own between twenty-five and fifty acres; two permits per year for those who own between ten and twenty-five acres; and one permit per year for those who own ten or fewer acres of land. The ordinance does not limit the transferability of land; however, a transferee who desires a building permit must either acquire his transferor's right to a permit or wait an entire building-year cycle before he may obtain one in his own right. Thus a person purchasing land on April 2 of any year might be required to wait two years to develop his land for residential use.

On March 12, 1977, a general ordinance was also passed at the town meeting. This ordinance, which was inserted in the town warrant by a voters' petition, is substantially identical to the zoning ordinance.

The plaintiff, the developer of the Fordway Brook Acres subdivision in Raymond, applied for five building permits. He was issued only four, whereupon he brought this action. After a hearing, the trial court upheld the denial of a fifth permit. The court ruled that the denial of the permit was authorized by the general ordinance, which it held was a valid exercise of the police power under RSA 31:39. The general ordinance was found to be a response to problems in Raymond caused by rapid population growth. Raymond's population increased from 3,000 to 4,700 in the period from 1970 to 1977 or an increase of 64% In seven years. In particular, the court found that the ordinance "is an attempt to limit the growth of the town in order to prevent overcrowding in its schools and the overburdening of its taxpayers."

The paramount issue in the case at bar is whether the general ordinance is a valid exercise of the police power delegated to a municipality pursuant to RSA 31:39. We hold that it is not.

All parties agree that the purpose of the Raymond ordinance is to restrain growth. Authority to enact land use regulations for the purpose of restricting growth is embodied in the power to zone under RSA 31:60. The law is unclear, however, concerning the extent to which towns may regulate growth through land use measures pursuant to their general police powers under RSA 31:39.

Regulating and restricting the density of population are standard objectives of the Standard State Zoning Enabling Act, 1 R. Anderson, American Law of Zoning § 7.06 (2nd ed. 1976), and are expressly delegated to a town in New Hampshire pursuant to the power to zone, RSA 31:60:

For the purpose of promoting health, safety, morals, or the general welfare of the community, the legislative body of any city or town is empowered to regulate and restrict the height . . . and size of buildings and other structures, lot sizes, the percentage of lot that may be occupied, the size of yards . . . and other open spaces, the Density of population and the location and use of buildings . . . and land for . . . residence or other purposes. (Emphasis added).

RSA 31:62 delineates the "purposes in view" of the zoning power, and states in part:

Such regulations shall be made in accordance with a comprehensive plan and designed to lessen congestion in the streets . . . to prevent the overcrowding of land; to avoid undue concentration of population . . .

The traditional concept of zoning focused on the regulation of the use of land and buildings according to districts or well-defined areas, 8 E. McQuillin, Municipal Corporations § 25.53 (3d ed. 1976); and the adoption of zoning regulations for the stated purpose of restricted growth is a logical extension of that concept. The power to restrict and regulate population density necessarily implies the authority to direct and control population growth. See Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 389-390, 47 S.Ct. 114, 71 L.Ed. 303 (1926); Golden v. Planning Bd., 30 N.Y.2d 359, 371, 334 N.Y.S.2d 138, 146, 285 N.E.2d 291, 297, Appeal dismissed, 409 U.S. 1003, 93 S.Ct. 436, 34 L.Ed.2d 294 (1972). See also Town of Plainfield v. Hood, 108 N.H. 502, 240 A.2d 60 (1968) (ordinance need not create defined areas to be considered zoning ordinance.) When towns properly exercise the zoning power delegated to them by the legislature, RSA 31:60-89 they may adopt reasonable time controls on population growth. "Comprehensive planning with a solid scientific, statistical basis is the key element in land use regulation in New Hampshire." Patenaude v. Town of Meredith, 118 N.H. ---, 392 A.2d 582, 585 (1978).

The plaintiff argues that Raymond's "slow growth" general ordinance is in fact a zoning ordinance, valid only if it complies with the statutory Zoning Enabling Act. RSA 31:60-84. He argues that the general ordinance, enacted pursuant to RSA 31:39, is therefore invalid. He concludes that the trial court's finding that "the plaintiff (had) engaged in active and substantial development . . . within twelve months of the recording of the (subdivision) plans," brings him within the protection of the "grand-father clause" exemption of RSA 36:24-a (Supp.1977) from subsequent changes in the zoning ordinances enacted pursuant to RSA 31:60-89. We adopt the plaintiff's reasoning.

RSA 36:24-a, as it read at the time the ordinances in question were enacted, provided that:

Every plat approved by the planning board and properly recorded in the registry of deeds shall be exempt from all subsequent changes in subdivision regulations and zoning ordinances adopted by any city or town, except those regulations and zoning ordinances which expressly protect public health standards such as water quality and sewage treatment requirements, for a period of three years after the date of recording subject to each of the following conditions:

I. Active and substantial development or building shall have commenced on the site by the owner or his successor in interest in accordance with the approved plat within twelve months after the date of approval . . .

The defendant advances two arguments against the application of RSA 36:24-a to the Fordway Brook Acres subdivision. First, the town claims that the "public health" exception in the statute applies to the town's limited-growth scheme. This argument is unpersuasive. Neither ordinance in question concerns water quality or sewage treatment matters. The town contends that the "public health" exception should be read to include ordinances designed to curb overcrowding in schools and a rising incidence in crime. We disagree; a public health exception of this breadth would be applied more often than the underlying rule.

The town also argues that even if the plaintiff is exempt from the zoning ordinance under the grand-father clause, he is not exempt from restrictions imposed by the general ordinance enacted pursuant to the police power. RSA 31:39 empowers towns to pass by-laws "for making and ordering their prudential affairs." This court has held that a town may regulate land use to some extent without complying with the procedural requisites of RSA 31:60-89. These statutory provisions grant authority to make by-laws which generally fall into the category of health, welfare and safety. Piper v. Meredith, 110 N.H. 291, 266 A.2d 103 (1970); State v. Zetterberg, 109 N.H. 126, 244 A.2d 188 (1968); State v. Jenkins, 102 N.H. 545, 162 A.2d 613 (1960).

This court has allowed municipalities fairly wide latitude in using their general police power to develop limited types of land use controls. An ordinance regulating setbacks, space between buildings and height of buildings has been held to be a valid exercise of the general police power, even though the purpose of the ordinance could have been achieved by ordinances created pursuant to the zoning enabling act. Piper v. Meredith, supra. A town ordinance prohibiting the erection of buildings within one-quarter mile of the town common for the purpose of preserving the "atmosphere" of the town has also been held valid under RSA 31:39. Town of Deering v. Tibbetts, 105 N.H. 481, 202 A.2d 232 (1964). See also Village House, Inc. v. Town of Loudon, 114 N.H. 76, 314 A.2d 635 (1974) (upheld an ordinance prohibiting the establishment of additional mobile home parks in town where three already existed); Town of Weare v. Stone, 114 N.H. 80, 314 A.2d 638 (1974) (upheld an ordinance locating mobile homes within duly licensed mobile home parks); Riverview Park, Inc. v. Town of Hinsdale, 113 N.H. 693, 313 A.2d 733 (1973) (upheld an ordinance establishing a...