Pope v. Town of Hinsdale Planning Bd., 92-201

• Decision Date: 20 May 1993
• Docket Number: No. 92-201,92-201
• Citation: 137 N.H. 233,624 A.2d 1360
• Parties: David A. POPE v. TOWN OF HINSDALE PLANNING BOARD and others.
• Court: New Hampshire Supreme Court

Page 1360

624 A.2d 1360

137 N.H. 233

David A. POPE v. TOWN OF HINSDALE PLANNING BOARD and others.

No. 92-201.

Supreme Court of New Hampshire.

May 20, 1993.

Bianco Professional Ass'n, Concord (Eric G. Falkenham on the brief and orally), for plaintiff.

Bragdon, Berkson & Davis, P.C., Keene (James Romeyn Davis, orally, and Carol MacKinnon on the brief), for defendants.

Judy A. Silva, Concord, by brief for the New Hampshire Municipal Ass'n, as amicus curiae.

JOHNSON, Justice.

The plaintiff, David A. Pope, desires to expand his manufactured housing park, located in Hinsdale. The defendants, the Town of Hinsdale Planning Board and its individual members (the board), denied Pope's request for a certificate of compliance, a prerequisite to expansion under a previous version of the Town of Hinsdale's (town) zoning ordinance. Pope appealed the denial to the superior court and petitioned for declaratory judgment and injunctive relief. After the Superior Court (Hollman, J.) denied all of his requests for relief, Pope appealed to this court. The sole, narrow issue before us is whether the town's current zoning ordinance (ordinance), which forbids expansion of manufactured housing parks, violates RSA 674:32 (Supp.1992), which requires "[m]unicipalities permitting manufactured housing parks [to] afford realistic opportunities for the development and expansion of manufactured housing parks." More specifically, because there is no dispute that the town does not "afford realistic opportunities for the development and expansion of manufactured housing parks," we must simply decide whether the town is a "[m]unicipalit[y] permitting manufactured housing parks." We hold that it is not and, therefore, affirm the superior court's ruling that the ordinance does not violate RSA 674:32 (Supp.1992).

RSA 674:32 (Supp.1992) provides in full:

"Municipalities shall afford reasonable opportunities for the siting of manufactured housing, and a municipality shall not exclude manufactured housing completely from the municipality by regulation, zoning ordinance or by any other police power. A municipality which adopts land use control measures shall allow, in its sole discretion, manufactured housing to be located on individual lots in most, but not necessarily all, land areas in districts zoned to permit residential uses within the municipality, or in manufactured housing parks and subdivisions created for the placement of manufactured housing on individually owned lots in most, but not necessarily all, land areas in districts zoned to permit residential uses within the municipality, or in all 3 types of locations. Manufactured housing located on individual lots shall comply with lot size, frontage requirements, space limitations and other reasonable controls that conventional single family housing in the same district must meet. No special exception or special permit shall be required for manufactured housing located on individual lots or manufactured housing subdivisions unless such special exception or permit is required by the municipality for single family housing located on individual lots or in subdivisions. Municipalities permitting manufactured housing parks shall afford realistic opportunities for the development and expansion of manufactured housing parks. In order to provide such realistic opportunities, lot size and overall density requirements for manufactured housing parks shall be reasonable."

(Emphasis added.) The pertinent portions of the town zoning ordinance at issue are as follows:

"1. No person, persons, firm or corporation shall establish or operate a new manufactured housing park within the Town of Hinsdale.

2. No permit for a new manufactured housing park or for the enlargement or expansion of an existing manufactured housing park shall be issued in the Town of Hinsdale.

a. Any person operating a manufactured housing park at the time of adoption of this ordinance shall be entitled, to a special manufactured housing park permit. The processing fee of a special manufactured housing park permit shall be $250.00, renewable every five years. Such permit shall authorize the continuing operation of the manufactured housing park in substantially the same manner as existed at the date of the adoption of this ordinance, subject only to any overriding limitations of applicable state law. A special manufactured housing park permit does not entitle the holder to enlarge or expand the number of lot locations within the park or to enlarge the area of the park by purchasing additional land, or substantially altering the manner of operation of such pre-existing manufactured housing park."

(Emphasis added.)

Pope argues on appeal that the town is a "[m]unicipalit[y] permitting manufactured housing parks" because it permits the continued existence of his park as a nonconforming use, created prior to the adoption of the ordinance. To the contrary, we find that the park's status as a former conforming use, now merely a grandfathered use, militates against adopting his argument. "Generally, the right to continue a previously lawful use of one's property after enactment of a zoning ordinance that prohibits such use is a vested right recognized by the New Hampshire Constitution and our New Hampshire statutes." New London Land Use Assoc. v. New London Zoning Board, 130 N.H. 510, 516, 543 A.2d 1385, 1387 (1988). Pope's "right to continue" his manufactured housing park as a grandfathered use precludes any notion that the town "permits" the use. The town has no choice in the matter. The town lacks the authority to close Pope's park, and it therefore is inappropriate to characterize the town's recognition of Pope's vested right to continue his park as "permitting manufactured housing parks." RSA 674:32 (Supp.1992). As the zoning ordinance states unequivocally, no "new manufactured housing park" may be established in Hinsdale.

Pope also argues that the town is a "[m]unicipalit[y] permitting manufactured housing parks" because the town issued him a written permit for his park pursuant to the ordinance. Again, we find Pope's interpretation of the word "permitting" strained. Although the town's ordinance does allow the town to issue permits for pre-existing manufactured housing parks, this is not equivalent to the town "permitting manufactured housing parks." As noted above, the town has absolutely no choice but to accept the existence of Pope's park. The provision of the ordinance relating to permits is merely an exercise of the town's limited power to regulate what it cannot eliminate. See Amherst v. Cadorette, 113 N.H. 13, 15-16, 300 A.2d 327, 329 (1973).

Principles of zoning law also cause us to reject Pope's interpretation of the town's ordinance. "The policy of zoning law is to carefully limit the enlargement and extension of nonconforming uses." New London Land Use Assoc., 130 N.H. at 518, 543 A.2d at 1389. Pope's interpretation of the phrase "[m]unicipalities permitting manufactured housing parks" would directly subvert these principles by forcing municipalities with grandfathered manufactured housing parks to allow them forever to expand. Therefore, we reject Pope's position.

Pope also argues that it would violate the intent of the legislature to interpret the word "permitting" in RSA 674:32 (Supp.1992) to allow a municipality to forbid expansion of manufactured housing parks. This...