J. E. D. Associates, Inc. v. Town of Atkinson, 80-361

Decision Date26 June 1981
Docket NumberNo. 80-361,80-361
Citation432 A.2d 12,121 N.H. 581
CourtNew Hampshire Supreme Court

Decker, Fitzgerald & Sessler, Laconia (David R. Decker, Laconia, on the brief and orally), for plaintiff.

Sumner F. Kalman, Plaistow, on the brief and orally, for defendant.

GRIMES, Chief Justice.

The issues in this appeal are whether section IV, paragraph H of the Atkinson zoning ordinance (regulation H), which requires every subdeveloper to deed to the town seven-and-one-half percent of the total acreage of its proposed subdivision as a condition of subdivision approval, is constitutional and whether the Atkinson Planning Board's requirement that the plaintiff subdeveloper bear the cost of removing a sight-obstructing off-site ledge is reasonable.

The plaintiff is the owner of a 22.64-acre tract of land in Atkinson. It filed an application for subdivision approval with the town planning board. Under the town's zoning ordinance, the minimum lot size at the time was one acre, but larger lots could be required if soil conditions so dictated. The subdivision plan called for eleven lots.

Regulation H requires all developers to dedicate, and deed to the town, land of a character suitable for playgrounds or other town use equalling approximately seven-and-one-half per cent of the subdivision's total acreage. While the planning board was considering the plaintiff's subdivision plan, the town selected lot No. 1 as representing the required seven-and-one-half per cent. The plaintiff raised questions about the need for such a dedication and the constitutionality of the requirement. The plaintiff indicated that it would be willing to donate the land voluntarily if it was assured that it would be used for a desirable purpose. At the insistence of the board, however, the plaintiff deeded lot No. 1 to the town, but in the letter of transmittal accompanying the deed the plaintiff stated that it intended "to challenge in court the validity of the ordinance requiring a seven-and-one-half per cent land cession."

The plaintiff had also, voluntarily, deeded a strip of land to the town for the purpose of widening the road which runs past the subdivision, Conley Grove Road. This conveyance reduced the subdivision by two and one-half per cent of the total area. The board also required the plaintiff to bear the cost of removing a ledge which caused a sight obstruction to travelers on the road, because it claimed that traffic would be increased by the subdivision. The subsequent construction of a new highway by the State, however, has diverted traffic from the area in which the ledge is located, and the plaintiff claims that there is now less traffic on this highway than before the subdivision existed. In order to obtain subdivision approval, the plaintiff posted a $1,400 cash bond to insure removal of the ledge.

The planning board approved the subdivision plan, and the plaintiff sold nine of the lots. Construction had begun on at least eight of the lots when the plaintiff brought an action in the superior court seeking to have regulation H declared unconstitutional and to have it determined that the removal of the ledge was not necessitated by the subdivision. The Trial Court (Contas, J.) granted the defendant's motion to dismiss, apparently on the ground that the failure of the plaintiff to appeal the board's ruling, coupled with laches, barred the present action. We reverse.

Although the plaintiff did not follow the statutory route of appeal, see RSA 36:34 (Supp.1979), this does not bar our consideration of its claims. The claim that regulation H is invalid is a constitutional one. See Robbins Auto Parts, Inc. v. City of Laconia, 117 N.H. 235, 236-37, 371 A.2d 1167, 1168-69 (1977). It is not a claim that falls within the jurisdiction of the planning board but is a purely legal one that need not be pursued by way of appeal. Short v. Town of Rye, 121 N.H. ---, ---, 430 A.2d 183, 184-85 (1981). The claim regarding the removal of the ledge also has a constitutional basis. See Land/Vest Props., Inc. v. Town of Plainfield, 117 N.H. 817, 822-23, 379 A.2d 200, 204 (1977).

Nor is the plaintiff's suit barred under the doctrine of laches. The plaintiff contested the constitutionality of regulation H long before final approval of the subdivision plan, and in the letter that accompanied the deed of the land in question the plaintiff stated its belief that the regulation was unconstitutional and that it intended "to challenge in court the validity of that part of the ordinance requiring a seven-and-one-half per cent land cession." There is no way that the defendant could have been misled in approving the subdivision plan. Nor is there any other basis for disapproving the plan, which satisfied all other valid planning board requirements. In short, the plaintiff's action should not have been dismissed.

We need not remand the issue regarding the constitutionality of...

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26 cases
  • Gangemi v. Zoning Board of Appeals
    • United States
    • Connecticut Supreme Court
    • January 2, 2001
    ...and the property owners did not appeal. Id., 384. Thereafter, the Supreme Court of New Hampshire ruled in J.E.D. Associates, Inc. v. Atkinson, 121 N.H. 581, 584, 432 A.2d 12 (1981), that such ordinances violate the state constitution. The property owners sought reconveyance of the property ......
  • Ehrlich v. City of Culver City
    • United States
    • California Supreme Court
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    ...of land use but 'an out-and-out plan of extortion.' " (483 U.S. at p. 837, 107 S.Ct. at p. 3149, quoting J.E.D. Associates v. Atkinson (1981) 121 N.H. 581, 432 A.2d 12, 14-15, italics added.) In briefing before this court, plaintiff and several supporting amici curiae insist that because th......
  • Dolan v. City of Tigard
    • United States
    • U.S. Supreme Court
    • June 24, 1994
    ...which converted a valid regulation of land use into "an out-and-out plan of extortion." Ibid., quoting J.E.D. Associates, Inc. v. Atkinson, 121 N.H. 581, 584, 432 A.2d 12, 14-15 (1981). No such gimmicks are associated with the permit conditions imposed by the city in this case. Undoubtedly,......
  • Lucas v. South Carolina Coastal Council
    • United States
    • U.S. Supreme Court
    • June 29, 1992
    ...e.g. Nollan v. California Coastal Comm'n, 483 U.S. 825, 837, 107 S.Ct. 3141, 3149, 97 L.Ed.2d 677 (1987); J.E.D. Associates, Inc. v. Atkinson, 121 N.H. 581, 432 A.2d 12 (1981); and it may deprive him of all of his property without singling him out, see, e.g., Mugler v. Kansas, 123 U.S. 623,......
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14 books & journal articles
  • The Regulatory Takings Battleground: Environmental Regulation of Land Versus Private-Property Rights
    • United States
    • Land use planning and the environment: a casebook
    • January 23, 2010
    ...building restriction is not a valid regulation of land use but “an out-and-out plan of extortion.” J. E. D. Associates, Inc. v. Atkinson, 121 N. H. 581, 584, 432 A. 2d 12, 14-15 (1981); see Brief for United States as Amicus Curiae 22, and n. 20. 5 The Commission claims that it concedes as m......
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    • University of Whashington School of Law University of Washington Law Review No. 88-2, December 2018
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    ...Cal. Coastal Comm'n, 483 U.S. 825, 836-37 (1987). 159. Id. at 841-42. 160. Id. at 837 (quoting J. E. D. Assocs., Inc. v. Town of Atkinson, 432 A.2d 12, 14 (N.H. 1981)). To satisfy the "nexus" requirement, there must be some link between the asserted legitimate state interest and the permit ......
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    • FNREL - Special Institute Surface Use for Mineral Development in the New West (FNREL)
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    ...converted a valid regulation of land use into "`an out-and-out plan of extortion.'" Ibid., quoting J. E. D. Associates, Inc. v. Atkinson, 121 N.H. 581, 584, 432 A.2d 12, 14-15 (1981)"). [111] See, Restat. 3d of the Foreign Relations Law of the U.S., § 712. [112] See, Organisation for Econom......
  • Beware - the Supreme Court Further Restricts the Authority of Municipalities to Condition Development Approvals
    • United States
    • Kansas Bar Association KBA Bar Journal No. 64-11, November 1995
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    ...donate a legislated minimum of "at least 7 percent" is clearly arbitrary on its face. Id. In J.E.D. Associates, Inc. v. Town of Atkinson, 121 N.H. 581, 432 A.2d 12 (1981), the Town of Atkinson, pursuant to its zoning ordinance, required the plaintiff subdeveloper to dedicate 7 1/2 percent o......
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