Piper v. Meredith, 6029

• Court: Supreme Court of New Hampshire
• Citation: 110 N.H. 291,266 A.2d 103
• Docket Number: No. 6029,6029
• Parties: Nelson B. PIPER, Jr., et al. v. MEREDITH.
• Decision Date: 05 June 1970

Page 103

266 A.2d 103

110 N.H. 291

Nelson B. PIPER, Jr., et al. v. MEREDITH.

No. 6029.

Supreme Court of New Hampshire.

June 5, 1970.

Rehearing Denied June 30, 1970.

Westcott, Millham & Dyer (Peter V. Millham, Laconia), for plaintiffs.

Upton, Sanders & Upton (Richard F. Upton, Concord), for defendant.

Nighswander, Lord, Marin & KillKelley, Laconia (David J. KillKelley, Laconia), for Charles J. Cataldo and another as amicus curiae.

LAMPRON, Justice.

Petition for a declaratory judgment under RSA 491:22 brought against the town of Meredith by Nelson B. Piper, Jr., Nelmy Leasing, Inc., and PI Enterprises, Inc., as property owners and taxpayers, seeking a determination that a town ordinance regulating building heights is void, unconstitutional, without force of law, and inapplicable to plaintiff.

The matter was heard by a Master (Jack B. Middleton, Esq.) who viewed the premises. The Master made certain findings and rulings and recommended that the ordinance in question be declared invalid and without force of law. The Master's report was approved by Johnson, J. who entered a decree in accordance with the recommendation. The objections of the parties to the Master's report were overruled and their exceptions thereto and defendant's exception to the Court's decree were reserved and transferred.

On September 6, 1968, the plaintiff, Nelmy Leasing, Inc., purchased from Meredith Yacht Club, Inc., for the sum of $160,000, a tract of land and buildings located on the shore of Lake Winnipesaukee in Meredith Bay. On the same day it leased the premises for a term of 99 years to plaintiff, PI Enterprises, Inc., to erect thereon eight nine-story condominium towers, now changed to five nine-story towers containing a total of 85 condominium units. Both plaintiff corporations are wholly owned by plaintiff Nelson B. Piper, Jr. and his associate, Myles L. Israel.

On September 23, 1968, more than 100 qualified voters of Meredith petitioned the selectmen in writing to call a special meeting to act upon the following proposed town ordinance:

'In pursuance of authority conferred by RSA 31:60, and for the purpose of promoting that health, safety and general welfare of the community, and to secure safety from fires, panic and other dangers, to provide adequate light and air, to prevent the overcrowding of land, to avoid undue concentration of population and to facilitate the adequate provision of water, sewerage and other public requirements, it is hereby enacted, that

'No buildings shall be erected in the Town of Meredith exceeding five stories or severty-five feet in height; and no building shall be erected within fifty feet of any other building or within one hundred feet of the shore of any lake in Meredith exceeding three stories or forty-five feet in height.'

On the next day, September 24, 1968, the selectmen called the special meeting requested in the petition for October 9, 1968 and duly posted and published the required warrant. RSA Ch. 39.

On October 4, 1968, plaintiffs filed in Superior Court a petition for injunction praying that the town be temporarily enjoined from holding the proposed town meeting and permanently enjoined from holding any future town meeting to act on the proposed ordinance until all necessary statutory prerequisites of a zoning ordinance had been met. The Trial Court (Loughlin, J.) refused a temporary injunction but ruled 'that any action taken by the petitionee (town) is violative of the requirements of Chapter 31, Sections 60-66 and is not valid under the general police power.' On appeal this court held on March 20, 1969, that the above ruling constituted an advisory opinion which is not within the jurisdiction of the Superior Court. Piper v. Meredith, 109 N.H. 328, 330, 251 A.2d 328.

The master found that 'On October 9, 1968, the Special Town Meeting was held. Town counsel, Judge John Ramsey, attempted to explain to the citizens what had transpired with regard to the Petition for Injunction and attempted to answer questions posed by those present at the meeting. There is a dispute between the parties as to the action eventually taken at the meeting. The Plaintiffs say that the only action taken * * * was an expression of opinion. The Defendant claims that there was an overwhelming vote (209-35) in favor of the article set out in the Warrant * * *.'

On October 10, 1968, plaintiff Piper obtained from the town clerk a document purporting to be a copy of the minutes of the above meeting. It refers to the action taken as an expression of opinion. On or about October 21 next, the town clerk undertook to revise the minutes to set forth a vote on the warrant article in question. The Master ruled that defendant's motion to amend the records in accordance with the revision should not be granted.

On April 15, 1969, another special town meeting was held for the purpose of ratifying the action taken at the October 9, 1968 meeting. The article in the warrant to that effect was adopted by the voters. With respect to both the October 9, 1968 and the April 15, 1969 meetings, it is undisputed that the prerequisites for the adoption of a zoning ordinance were not met. RSA 31:63-a (supp) provides, among other requirements, that in the enactment of a zoning ordinance 'there shall be at least two public hearings at least fifteen days apart' with a notice of the time and place 'published in a paper of general circulation in the town.'

The Master ruled 'that the ordinance in question constitutes a 'zoning regulation' which may by enacted only pursuant to the provisions of RSA 31:63-a as amended * * *. Since the prerequisites of publication and public hearings were not met at either the meeting of October 9, 1968 or at the meeting of April 15, 1969, the master rules that the ordinance is invalid and unenforceable.' The Superior Court entered a decree accordingly.

Although the town admits that the requirements for the adoption of a zoning ordinance (RSA 31:63-a (supp)) were not met, it maintains, however, that these requirements do not apply to an ordinance adopted by the town in the exercise of its police powers (RSA 31:39) and that the Master erroneously applied them to the present ordinance.

The governmental authority known as the police power is an inherent attribute of state sovereignty. Peirce v. New Hampshire, 5 How. (U.S.) 554, 582, 12 L.Ed. 279 (1847); 16 Am.Jur.2d, Constitutional Law, ss. 259, 260. The police power is broad and 'includes such varied interests as public health, safety, morals, comfort, the protection of prosperity, and the general welfare.' Corning Glass Works v. Max Dichter Co., 102 N.H. 505, 509, 161 A.2d 569, 573. '(I)f it is to serve its purpose * * * it must be of a flexible and expanding nature to protect the public against new dangers and to promote the general welfare by different methods than those formerly employed.' and may include measures intended to promote the attractiveness of roadside scenery. Opinion of the Justices, 103 N.H. 268, 270, 169 A.2d 762; Blevens v. Manchester, 103 N.H. 284, 289, 170 A.2d 121; 6 McQuillin, Municipal Corporations, s. 24.03 (1969 Rev.Vol.).

'It is a long established principle under law that towns are but subdivisions of the State and have only the powers the State grants to them.' Town of Exeter v. Kenick, 104 N.H. 168, 170, 181 A.2d 638, 640; Bisson v. Milford, 109 N.H. 287, 288, 249 A.2d 688. It follows that towns have such powers as are expressly granted to them by the Legislature and such as are necessarily implied or incidental thereto. State v. Zetterberg, 109 N.H. 126, 129, 244 A.2d 188; 37 Am.Jur., Municipal Corporations, s. 277; 3A Antieau, Independent Local Government Entities, s. 30A-05. See City of Watertown v. Meseberg, 144 N.W.2d 42, 44 (S.D.1966). These granted powers must be interpreted and construed in the light of the police powers of the State which grants them. Haselton v. Stage Lines, 82 N.H. 327, 330, 133 A. 451; State v. Jenkins, 102 N.H. 545, 546, 162 A.2d 613; Frizzell v. Charlestown,107 N.H. 286, 288, 220 A.2d 742.

This court has held that towns are empowered under the authority granted by RSA 31:39 to make by-laws for a variety of purposes which generally fall into the category of health, welfare and public safety. State v. Zetterberg, supra. Setback ordinances, as well as ordinances regulating space between buildings and imposing limits on the height of buildings have been held generally to come within this police power of towns. 6 McQuillin, Municipal Corporations, ss. 24.541, 542, 546, 547. In Town of Jaffrey v. Heffernan, 104 N.H. 249, 183 A.2d 246, this court held that an ordinance requiring buildings to have a minimum setback of 30 feet from any public highway, could be legally adopted under the general police power of towns. This court also held in Town of Deering ex rel. Bittenbender v. Tibbetts, 105 N.H. 481, 202 A.2d 232, that town ordinance prohibiting 'the erection of any building or trailer within 1/4 mile of the Town Common, unless (the) Selectmen shall have approved in advance the plans for the construction and location of such building or trailer in order that the atmosphere of the Town of Deering may be maintained' was a valid exercise of the police power granted the town by RSA 31:39.

It was further stated that the 'fact that aesthetic considerations * * * were also factors motivating the enactment is not fatal.' Deering v. Tibbetts, supra, 484, 202 A.2d 234; 6 McQuillin, Municipal Corporations, ss. 24.16, 24.33 (1969 Rev.Vol.). In so holding, this court stated that the promotion of the general economy, welfare, and prosperity of the town, and the value of privately-owned properties within it was a generally recognized basis for the exercise of the police power. RSA 31.39 confers upon towns not only the power to make bylaws 'for the care, protection, preservation and use of the public * * * parks, commons, * * * and other public institutions' (Deering v. Tibbetts, supra), but also ...