Boulders v. Town of Strafford
| Decision Date | 13 June 2006 |
| Docket Number | No. 2005-140.,2005-140. |
| Citation | 903 A.2d 1021 |
| Parties | BOULDERS AT STRAFFORD, LLC v. TOWN OF STRAFFORD. |
| Court | New Hampshire Supreme Court |
Donahue, Tucker & Ciandella, P.L.L.C., of Exeter (Robert M. Derosier on the brief and orally), for the plaintiff.
Mitchell & Bates, P.A., of Laconia (Walter L. Mitchell and Laura A. Spector on the brief, and Mr. Mitchell orally), for the defendant.
The defendant, Town of Strafford (town), appeals the decision of the Superior Court (Fauver, J.) granting the petition for declaratory judgment filed by the plaintiff, Boulders at Strafford, LLC (Boulders), seeking to declare a section of the town's zoning ordinances unconstitutional. See Strafford Zoning & Land Use Ords., Subdiv. Regs., Non-Resid. Site Plan Regs., & Building Regs., ch. 1, § 4.1(F) (2003). ( . We vacate and remand.
The record supports the following. Boulders owns or has the development rights to approximately 300 acres in Strafford. In the summer of 2003, Boulders presented alternative design proposals for residential development of the property to the Strafford Planning Board (board). The two proposals were a conventional design and a conservation/open space proposal, yielding approximately fifty-eight and sixty-six subdivided lots, respectively.
Both proposals required that homes built on the lots contain individual septic systems. Section 1.4.1(F) states:
The minimum set back distance for the placement of any part of a new sewerage system location from any such wetland shall vary according to the natural slope of the land between the wetland and the location of the system in accordance with the following table (effective 3-13-1979):
0 - 8% slope = 100 foot setback
9 - 15% slope = 150 foot setback
over 15% slope = 200 foot setback
Both Boulders and the town agree that the purpose of Section 1.4.1(F) is to protect wetlands. The conventional design did not require any variance from this ordinance, but because the property contains wetlands, the conservation/open space proposal required a variance for roughly twenty-five of the sixty-six subdivided lots. After a public hearing, the board expressed its preference for the conservation/open space proposal and encouraged Boulders to seek the necessary variance.
Boulders then applied for a variance, asking that it be allowed to install some septic systems within seventy-five feet of the wetlands. The zoning board of adjustment denied the request, as well as Boulders' petition for rehearing. Rather than appeal the denial of the variance, Boulders petitioned the superior court to declare Section 1.4.1(F) unconstitutional both on its face and as applied to the property.
During a bench trial, the superior court heard testimony from five expert witnesses: Rick Van de Poll, a Ph.D. in natural resources management; William E. Evans, an employee of the New Hampshire Department of Environmental Services (DES) involved in the DES rulemaking process; Corey Caldwell, owner of a landscape and engineering firm and the person who prepared the subdivision plans for the property; Lawrence Morse of New Hampshire Soil Consultants, Inc.; and Jim Gove of Gove Environmental Services. Evans, Caldwell, Morse and Gove all testified as experts on behalf of Boulders, while Van de Poll was the town's only expert. Each witness testified about how septic systems work, what happens when they fail, and the impact they may have on various types of wetlands. They also testified about the kinds of factors that should be considered in designing septic systems and wetlands ordinances, and gave opinions on the propriety of Section 1.4.1(F) and its use of slope as the sole factor in determining septic system setbacks from wetlands within the town.
After hearing testimony from the witnesses and accepting memoranda of law from the parties, the trial court ruled in favor of Boulders. This appeal followed.
On appeal, the town argues that the trial court applied the wrong standard in examining the constitutionality of Section 1.4.1(F). It argues in the alternative that, if the correct standard was applied, there was insufficient evidence for Boulders to meet its burden and for the court to invalidate the ordinance. We discuss each argument in turn.
It is unclear from the record before us whether, at trial, Boulders made an equal protection or substantive due process challenge, or both. On appeal it argues only that the ordinance violates substantive due process under Part I, Articles 2 and 12 of the State Constitution. We therefore limit our discussion to the substantive due process protections of the State Constitution and cite federal opinions for guidance only. See State v. Ball, 124 N.H. 226, 232-33, 471 A.2d 347 (1983).
We first address whether the trial court applied the wrong standard in reviewing the constitutionality of the ordinance. The State zoning-enabling act grants municipalities broad authority to pass zoning ordinances for the health, safety, morals and general welfare of the community. Taylor v. Town of Plaistow, 152 N.H. 142, 145, 872 A.2d 769 (2005); RSA 674:16, I (1996). In determining whether an ordinance is a proper exercise of the town's police power, and thus able to withstand a substantive due process challenge under the State Constitution, we apply the rational basis test. Dow v. Town of Effingham, 148 N.H. 121, 124, 803 A.2d 1059 (2002). This inquiry employs the lowest level of constitutional scrutiny, and asks whether the ordinance constitutes a restriction on property rights that is rationally related to the municipality's legitimate goals. Taylor, 152 N.H. at 145, 872 A.2d 769.
Both the town and Boulders agree that this is the proper test for a substantive due process claim under the State Constitution. The town, however, argues that the trial court did not apply the rational basis test in reaching its conclusion that the ordinance was unconstitutional. Rather, it argues that the trial court applied the middle-tier test, or intermediate scrutiny standard that we have recognized as appropriate for equal protection challenges to zoning ordinances under the State Constitution. See Dow, 148 N.H. at 124-25, 803 A.2d 1059; Town of Chesterfield v. Brooks, 126 N.H. 64, 67-69, 489 A.2d 600 (1985).
It is unclear which test the trial court applied in reaching its determination. After describing the expert witnesses' testimony, the court turned to the question of whether the ordinance was constitutional on its face. However, it immediately quoted the Metzger rule for resolving as-applied challenges to zoning ordinances— namely a "balancing of the injury or loss to the landowner against the gain to the public." Metzger v. Town of Brentwood, 117 N.H. 497, 501, 374 A.2d 954 (1977). It then quoted Brooks for the proposition that "[z]oning ordinances consider and balance the interests of all landowners, and for this reason are subject to our middle tier equal protection test and not the strict scrutiny standard." Brooks, 126 N.H. at 68, 489 A.2d 600. The trial court then followed with an exposition of the intermediate scrutiny test, that the ordinance "`must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation.'" Id. at 69, 489 A.2d 600 (quoting Carson v. Maurer, 120 N.H. 925, 932, 424 A.2d 825 (1980)). Finally, the trial court cited the rational basis test for substantive due process claims; namely, "`whether the claimants proved that the provision constitutes a restriction on property rights that is not rationally related to the town's legitimate goals.'" Caspersen v. Town of Lyme, 139 N.H. 637, 642, 661 A.2d 759 (1995) (quoting Asselin v. Town of Conway, 137 N.H. 368, 372, 628 A.2d 247 (1993)).
After setting forth these various standards of review, the trial court applied them to the expert testimony introduced at trial. It began by stating that, "to be legitimate, the ordinance must be rationally related to the protection of the wetlands." While we agree that rational basis review is the proper standard in this case, we note that a rational relation to the town's objective does not make the objective legitimate. Rather, the goal must itself be legitimate, and additionally the means employed by the town must be rationally related to that end. Taylor, 152 N.H. at 145, 872 A.2d 769. Assuming, however, that the trial court properly began this portion of its order with rational basis review, it ended its facial analysis by holding that the ordinance was not rationally related, was arbitrary and unreasonable, and did not bear a fair and substantial relationship to the protection of wetlands. It thus ruled that the ordinance was invalid on its face.
As part of its analysis, the court also determined that "all of the experts agreed that a less restrictive setback of 75 feet would protect the wetlands in all circumstances." It relied upon this finding in ruling that, "by setting the setback requirements at a distance more severe than any of the experts testified was necessary," the town's ordinance was arbitrary and unreasonable.
The town argues that there is insufficient evidence to support the finding that all experts testified that seventy-five feet is sufficient. It also argues that the town may impose greater restrictions than does the State. See RSA 485-A:32, I (2001); Cherry v. Town of Hampton Falls, 150 N.H. 720, 725, 846 A.2d 508 (2004). Therefore, because DES rules apparently set minimum setback distances of fifty or seventy-five feet depending on the type of soil, the town contends that the court erred in invalidating the 100-, 150- and 200-foot setback requirements in the ordinance. See N.H. Admin. Rules, Env-Ws 1014.01(a); Strafford Zoning Ord. 1.4.1(F).
While we agree that the town may enact greater...
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