Sibson v. State

• Decision Date: 31 March 1975
• Docket Number: No. 6904,6904
• Parties: , 5 Envtl. L. Rep. 20,300 Howard W. SIBSON et al. v. STATE of New Hampshire.
• Court: New Hampshire Supreme Court

Page 239

336 A.2d 239

115 N.H. 124, 5 Envtl. L. Rep. 20,300

Howard W. SIBSON et al. v. STATE of New Hampshire.

No. 6904.

Supreme Court of New Hampshire.

March 31, 1975.

Shaines, Madrigan & McEachern, Portsmouth, (Robert A. Shaines, Portsmouth, orally), for plaintiffs.

Warren B. Rudman, Attorney General and Donald W. Stever, Jr., Asst. Atty. Gen., for the State.

GRIFFITH, Justice.

The plaintiffs appealed to the superior court from a denial by a special board acting under the aegis of the water resources board of a permit to fill approximately four acres of salt marshland in Rye. Laws 1969, 387:6; Laws 1971, 329:1; RSA 483--A:4 (Supp.1973). The appeal was heard by Blandin, Judicial Referee, whose report dismissing the appeal was approved by Morris, J., who reserved and transferred plaintiffs' exceptions.

The critical question to be determined is whether the trial court erred when it concluded that the denial by the special board of the permit to fill the saltmarsh was a valid exercise of the police power not requiring compensation. After examining the record and the findings of the judicial referee, we sustain the ruling of the trial court.

In 1968, plaintiffs purchased a six-acre tract of saltmarsh for $18,500. This was part of Awcomin Marsh, a tidal wetland approximately 100 acres in size. Following our decision in Sibson v. State, 110 N.H. 8, 259 A.2d 397 (1969), holding that the then language of RSA ch. 483--A did not apply to plaintiffs' land, the plaintiffs legally filled a two-acre portion of the saltmarsh without a permit. In 1972, the plaintiffs sold the filled land with a house they had built on it for $75,000, placing a value of $50,000 on the house and $25,000 on the land. The definition of marshland added by Laws 1970, 22:1 now RSA 483--A:1--a (Supp.1973) clearly includes plaintiffs' land. The litigation which culminated in Sibson v. State, 111 N.H. 305, 282 A.2d 664 (1971), although related has no particular relevance to the present case.

In sustaining the denial of a permit to full by the special board, the judicial referee made extensive findings of fact and rulings of law. In part the findings concluded that plaintiffs' four acres were part of a valuable ecological asset of the seacoast area and that the proposed fill 'would do irreparable damage to an already dangerously diminished and irreplaceable natural asset.' In addition, the filling of land so close to the bridge under which a large flow of water daily came in and flowed out would 'magnify the deleterious effect which the fill would have upon the entire one hundred acres of the marsh.' The judicial referee also found '(t)he unfilled portion of the marsh is of practically no pecuniary value to the plaintiffs.'

Controlling and restricting the filling of wetlands is clearly within the scope of the police power of the State. The evidence in the case overwhelmingly supported the referee's findings on the importance of preserving saltmarshes 'as one of the most productive areas of nutrient per acre to be found anywhere.' The evidence further supported the referee's finding that the proposed fill would be 'bad for the marsh' and 'for mankind'. RSA 483-A:1--b (Supp.173) sets forth in some detail the harm that results from unregulated filling of wetlands and the contributions of wetlands to mankind in support of the legislative finding that it is 'for the public good and welfare of this state to protect and preserve its submerged lands under tidal and fresh waters and its wetlands (both saltwater and freshwater), as herein defined, from despoliation and unregulated alteration.' See 5 Fish & Wildlife Service, U.S. Dep't of the Interior, National Estuary Study 66-71 (1970); Note, Estuarine Pollution: The Deterioration of the Oyster Industry in North Carolina, 49 N.C.L.Rev. 921 (1971); Binder, Taking Versus Reasonable Regulation: A reappraisal In Light of Regional Planning and Wetlands, 25 U. of Fla.L.Rev. 1, 18-30 (1972).

The plaintiffs do not seriously contest that the denial of the permit to fill was a proper exercise of the police power, but argue that this denial rendered their saltmarsh economically useless and therefore constitutes a taking. They rely upon a theory first promulgated by Justice Holmes in Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 43 S.Ct. 158, 67 L.Ed. 322 (1922), that compensation is due a landholder when a regulation destroys all or substantially all of the value of the property affected or denies to the owners all of its beneficial use. When such a destruction or diminution occurs, there is a taking of private property for public use without compensation in violation of State and Federal Constitutions. U.S.Const. amend. V; N.H.Const. pt. I, art. 12; see Surry v. Starkey, 115 N.H. ---, 332 A.2d 172 (1975); Carter v. Derry, 113 N.H. 1, 4, 300 A.2d 53, 55 (1973). Based upon this principle governmental attempts to prevent filling of marshlands have been denied or restricted in some jurisdictions. E.g., State v. Johnson, 265 A.2d 711 (Me.1970); Commissioner of Natural Resources v. S. Volpe & Co., 349 Mass. 104, 206 N.E.2d 666 (1965); Dooley v. Town Plan & Zoning Comm'n, 151 Conn. 304, 197 A.2d 770 (1964); Morris County Land I. Co. v. Parsippany-Troy Hills Tp., 40 N.J. 539, 193 A.2d 232 (1963).

The referee found that the plaintiffs had recovered their total investment and made some profit. Since they had been able to fill two acres and build a house on their original six-acre tract, the dismissal of their appeal could be sustained on the basis that their land was not rendered useless, but that they had only been deprived of a speculative profit. See Steel Hill Dev., Inc. v. Town of Sanbornton, 469 F.2d 956 (1st Cir. 1972). We prefer to decide the case on the present application to fill the four acres still retained by the plaintiffs.

Counsel for the State urges with some force that we reject the Holmes formula as imprecise and unsuited to the problems involved in the preservation of wetlands. It is conceded that the rule is imprecise and difficult to apply. 'There is no set formula to determine where regulation ends and taking begins. Although a comparison of values before and after is relevant, . . . it is by no means conclusive, see Hadachek v. Sebastian . . . (239 U.S. 394, 36 S.Ct. 143, 60 L.Ed. 348 (1915)), where a diminution in value from $800,000 to $60,000 was upheld.' Goldblatt v. Hempstead, 369 U.S. 590, 594, 82 S.Ct. 987, 990, 8 L.Ed.2d 130 (1962); e.g., Compare Turnpike Realty Co. v. Town of Dedham, 284 N.E.2d 891 (Mass.1972) with Dooley v. Town Plan & Zoning Comm'n, 151 Conn. 304, 197 A.2d 770 (1964).

A different approach is suggested to determine whether a land use statute and subsequent regulatory activity are constitutional or confiscatory. Under the proposed rule, if the action of the State is a valid exercise of the police power proscribing activities that could harm the public, then there is no taking under the eminent domain clause. It is only when the state action appropriates property for the public use at the expense of the property owner that compensation is due. Stever, Land Use Controls, Takings And The Police Power--A Discussion Of The Myth, 15 N.H.B.J. 149 (1974); Sax, Takings, Private Property and Public Rights, 81 Yale L.J. 149 (1971); Sax, Takings and the Police Power, 74 Yale, L.J. 36 (1964).

This rule finds support in cases apparently ignored in the cases purporting to follow the rule of Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 43 S.Ct. 158, 67 L.Ed. 322 (1922). In Mugler v. Kansas, 123 U.S. 623, 8 S.Ct. 273, 31 L.Ed. 205 (1887), the Court upheld the shutting down without compensation of a brewery by the Kansas prohibition law and in State v. Griffin, 69 N.H. 1, 39 A. 260 (1896), a statute was sustained that required the defendant to cease dumping sawdust in a public water supply. In State v. Griffin, supra at 23-24, 39 A. at 260-61, the court quoted from an opinion by Chief Justice Shaw in Commonwealth v. Alger, 61 Mass. (7 Cush.) 53, 85-86 (1851):

'Rights of property, . . . are subject to such reasonable limitations in their enjoyment as shall prevent them from being injurious, and to such reasonable restraints and regulations established by law as the legislature . . . may think necessary and expedient.

'This is very different from the right of eminent domain, the right of a government to take and appropriate private property to public use whenever the public exigency requires it, which can be done only on condition of providing a reasonable compensation therefor. The power we allude to is rather the police power . . ..

'. . . It is not an appropriation of the property to a public use, but the restraint of an injurious private use by the owner, and is therefore not within the principles of property taken under the right of eminent domain.'

In zoning cases, there has been some erosion of the Holmes principle in dealing with the restraint or elimination of nonconforming uses. In Flanagan v. Hollis, 112 N.H. 222, 293 A.2d 328 (1972), we sustained substantial restrictions upon the enlargement of existing gravel excavations, but in Surry v. Starkey, 115 N.H. ---, 332 A.2d 172 (1975), we refused to uphold an immediate termination of use of land as a gravel bank where the trial court found that practically the only use of land was a gravel bank. '(T)here is no public taking, unless the prohibition deprives the owner of the only use of his land' (Flanagan v. Hollis, supra 112 N.H. at 223, 293 A.2d at 329), and in any event there is 'no absolute right to continue a nonconforming...