Blevens v. City of Manchester

• Decision Date: 28 April 1961
• Citation: 103 N.H. 284,170 A.2d 121
• Parties: Clarence G. BLEVENS et al. v. CITY OF MANCHESTER.
• Court: New Hampshire Supreme Court

Page 121

170 A.2d 121

103 N.H. 284

Clarence G. BLEVENS et al. v. CITY OF MANCHESTER.

Supreme Court of New Hampshire.

Argued March 7, 1961.

Decided April 28, 1961.

Emile R. Bussiere, Manchester (by brief and orally), for plaintiffs.

J. Francis Roche, City Sol., Manchester (by brief and orally), for defendant.

KENISON, Chief Justice.

The power of the State to pass enabling legislation permitting municipal ordinances to regulate the subdivision of land has been sustained generally as a proper exercise of the police power. Anno. 11 A.L.R.2d 524; Webster, Urban Planning and Municipal Public Policy, ch. 9 (1958); Note, Land Subdivision Control, 65 Harv. L.Rev. 1226 (1952). 'Since the subdivision of a large tract of land into a number of small building lots and the development thereof, either for residential or industrial purposes increases the value of the land in the aggregate to the subdivider and at the same time imposes new burdens upon the municipality and, if uncontrolled, upon other elements in the community, the validity of imposing a duty upon the subdivider to comply with reasonable conditions relating to location, site plan, location of and width of roads and sidewalks, the installation of necessary storm drains and sewers, and to restrictions on lot sizes so that the subdivision will conform to the local requirements for the safety, health and general welfare of the subsequent owners of the individual lots therein and of the community has been generally recognized.' 2 Rathkopf, The Law of Zoning and Planning, ch. 71, § 9 (1960).

Statutes, like RSA 36:19-36:29, regulating the subdivision of land seek to promote the orderly and planned growth of relatively undeveloped areas within a municipality. Brous v. Smith, 304 N.Y. 164, 106 N.E.2d 503; Rhyne, Municipal Law 32-60 (1957); Reps, Control of Land Subdivision by Municipal Plainning Boards, 40 Cornell L. Q. 258 (1955). Planless growth and haphazard development accentuate municipal problems in the demand for streets, water and sanitary services which have a direct relation to traffic safety and health. 6 Powell, Real Property, § 866 (1958); Town of Stoneham v. Savelo, Mass., 170 N.E.2d 417; State ex rel. Jack v. Russell, 162 Ohio St. 281, 123 N.E.2d 261; Petterson v. City of Naperville, 9 Ill.2d 233, 137 N.E.2d 371. The subdivision of land has a definite economic impact upon the municipality and hence the regulation of subdivision activities has been sustained as a means by which the interests of the public and the general taxpayer may be safeguarded and protected. Since the subdivider of land creates the need for local improvements which are of special benefit to the subdivision it is considered reasonable that he should bear the cost rather than the municipality and the general taxpayer. Haar, Land-Use Planning, 347-351 (1959); Zastrow v. Village of Brown Deer, 9 Wis.2d 100, 100 N.W.2d 359; Comment, 1961 Wis.L.Rev. 310, 312; Village of Lynbrook v. Cadoo, 252 N.Y. 308, 314, 169 N.E. 394.

The plaintiffs' contention that 'the police power is not involved' in this litigation cannot be accepted. The fact that the lot areas may be satisfactory to the subdivider and prospective purchasers, or that the streets and drainage are also satisfactory to them does not bar the application of the subdivision statute and the ordinance enacted pursuant to it. Note, An Analysis of Subdivision Control Legislation, 28 Ind.L.J. 544 (1953). 'One of the problems that has arisen is that of seeing to it that building lots are not laid out and sold and houses put thereon without some decent minimum of street paving and without some decent safety and health minimum of water and sanitary facilities. We all know that where subdivision of land is unregulated lots are sold without paving, water, drainage, or sanitary facilities, and then later the community feels forced to protect the residents and take over the streets and in some way or other provide for the facilities. One of the ways in which law and legislation are attempting to prevent just such situations is that of requiring paving, water, and drainage facilities to be installed, up to minimum public specifications, as a condition of approval of the plat. By means, therefore, of this city planning approach and technique and these developments in modes of subdivision regulation, and evils of the inharmonious street system, overcongestion of population, and deficiency in paving and sanitation and water facilities are coming to be reduced and prevented.' Bettman, City and Regional Planning Papers 74 (1946).

The plaintiffs' basic contention is that the subdivision law and the ordinance enacted pursuant thereto are 'retrospective laws' forbidden by N.H.Const., Pt. I, Art. 23rd. The pertinent part of RSA 36:27 reads as follows: 'Whoever, being the owner or agent of the owner of any land located within a subdivision, transfers or sells or agrees to sell or negotiates to sell any land by reference to, or exhibition of, or by other use of, a plat of a subdivision, before such plat has been approved by the planning board and recorded or filed in the office of the appropriate register of deeds shall forfeit and pay a penalty of one hundred dollars for each lot or parcel so transferred or sold or agreed or negotiated to be sold * * *.'

The subdivision law and ordinance apply to all of the plaintiffs' lots shown on their recorded maps which are unsold and any conveyed after the subdivision ordinance was approved by the city. This is not a retrospective law. Lake Intervale Homes, Inc. v. Township of Parsippany-Troy Hills, 28 N.J. 423, 147 A.2d 28; Opinion of the Justices, 101 N.H. 515, 131 A.2d 49; City of Rochester v. Barcomb, 103 N.H. ----, 169 A.2d 281; Pepin v. Beaulieu, 102 N.H. 84, 89, 151 A.2d 230. 'It is admitted that most of the petitioners' streets have not been formally accepted by the city of Manchester.' See RSA 230:1; Harrington v. Manchester, 76 N.H. 347, 350, 82 A. 716; Wason v. Nashua, 85 N.H. 192, 155 A. 681. The...