Riverview Park, Inc. v. Town of Hinsdale

• Decision Date: 28 December 1973
• Docket Number: No. 6467,6467
• Citation: 113 N.H. 693,313 A.2d 733
• Parties: RIVERVIEW PARK, INC. and Gateway Equipment Co., Inc. v. TOWN OF HINSDALE.
• Court: New Hampshire Supreme Court

Page 733

313 A.2d 733

113 N.H. 693

RIVERVIEW PARK, INC. and Gateway Equipment Co., Inc. v. TOWN OF HINSDALE.

No. 6467.

Supreme Court of New Hampshire.

Dec. 28, 1973.

Cristiano & Kromphold, and Douglas F. Green, Keene, for plaintiff Riverview Park, Inc.

R. J. Shortlidge and Arthur L. Trombly, Keene, orally for plaintiff Gateway Equipment Co., Inc.

Howard B. Lane, Keene, and McLane, Carleton, Graf, Greene & Brown, Manchester (Arthur A. Greene, Jr., Manchester, orally), for defendant.

DUNCAN, Justice.

Appeal by defendant town of Hinsdale from a decree of the Superior Court (Longhlin, J.), granting separate petitions for declaratory judgment brought by plaintiffs Riverview Park, Inc. and Gateway Equipment Co. and consolidated for trial because identical legal questions were involved. Each plaintiff sought by its petition to have certain ordinances of defendant town declared invalid as applied to its residential trailer park in Hinsdale.

Plaintiffs purchased the tracts in question prior to the enactment in 1968 of the initial Hinsdale ordinance regulating mobile homes. The first of the measures here in question appears in the zoning ordinance of April 5, 1970, which regulates the establishment and enlargement of trailer parks, and in particular provides in part as follows: 'Any person operating a mobile bile home park at the time of adoption of this Ordinance shall be entitled to a special mobile home park permit upon the payment of an application fee of $100.00. Such permit shall be effective to authorize the continuing operation of the subject part in substantially the same manner as existed at the date of adoption of this ordinance . . .. A special mobile home park permit shall not entitle the holder to enlarge or substantially alter his manner of operation of such prior existing mobile home park without duly filing for a preliminary and thereafter final or definitive mobile home park permit as provided under this article.' (emphasis added). Thus pre-existing parks became valid nonconforming uses.

The second measure in question entitled 'Ordinance for the Limitation of Mobile Homes in Hinsdale, New Hampshire' was enacted on June 20, 1970, and established a system for issuance of a maximum of 350 mobile home permits on a first-come first-served basis. If all 350 permits should be outstanding, a new mobile home could not legally be brought into the town until an existing one was removed. This ordinance was enacted under the general police power provisions of RSA 31:39 for the avowed purposes of protection of the town's water supply and school systems and promotion of the health, safety, and general welfare of its citizens.

The trial court ruled that 'plaintiffs have a vested right to complete the projects in spite of the . . . ordinances . . .' and that each plaintiff may construct its 600 planned mobile home sites. Defendant excepted to this ruling on the ground that it was unsupported by the evidence and took various other exceptions.

Two interrelated issues are presented by this appeal. First, may the zoning ordinance restrict the growth of a park notwithstanding a pre-existing plan to develop an entire tract for mobile home sites. Second, may the town under the police power restrict the total number of trailer units to be located in the town.

The first issue was recently considered by this court in Amherst v. Cadorette, 113 N.H. 13, 300 A.2d 327 (1973). It was there held that the existence of some trailers in a park at the time of passage of a restrictive ordinance did not 'confer as a matter of law, the right to place additional trailers on the tract . . . on the theory that 'pre-existing non-conforming use' is a quality of the entire tract . . . as distinguished from its use or the extent of its use'. Id. at 14-15, 300 A.2d at 328. The same opinion also stated that 'mere intention, however expressed, could not create vested rights to continue expansion except in accordance with restrictions imposed by the ordinance'. Id. at 14, 300 A.2d at 328. The facts of the instant case require a like decision.

The record before us reveals no showing by plaintiffs of substantial sums spent in contemplation of expansion of their parks beyond the number of units presently in existence. Piper v. Meredith, 110 N.H. 291, 299, 266 A.2d 103, 109 (1970). Nearly all of the approximately $150,000 expended by Riverview and of the approximately $87,000 spent by Gateway was traced to the development of the roads, water lines, and other utilities serving the existing 156 and 60 sites, respectively. These improvements are conceded by the town to have been substantially or wholly completed when the April 1970 zoning ordinance was enacted. Creation of a vested right requires something more than the relatively small sums spent by these plaintiffs for engineering services, clearing, and utility extension in contemplation of...