Taylor v. Town of Plaistow

• Decision Date: 22 April 2005
• Docket Number: No. 2004–337.,2004–337.
• Citation: 872 A.2d 769,152 N.H. 142
• Court: New Hampshire Supreme Court
• Parties: Richard TAYLOR and another. v. TOWN OF PLAISTOW.

152 N.H. 142

872 A.2d 769

Richard TAYLOR and another.

v.TOWN OF PLAISTOW.

No. 2004–337.

Supreme Court of New Hampshire.

Argued: Feb. 9, 2005.

Opinion Issued: April 22, 2005.

Engel & Associates, P.A., of Exeter (David C. Engel, on the brief and orally), for the plaintiffs.

Devine, Millimet & Branch, P.A., of Manchester (John P. Sherman, on the brief, and Donald E. Gardner orally), for the defendant.

DUGGAN, J.

The plaintiffs, Dick Taylor's Tire and Truck Sales, Inc. and its proprietor, Richard Taylor, appeal a decision of the Superior Court (Morrill , J.) upholding the validity of a zoning ordinance enacted by the defendant, Town of Plaistow (Town). We affirm.

The trial court found the following facts. In April 1997, the Town adopted an amendment to its zoning ordinance that requires a minimum of 1,000 feet between vehicular dealerships in the Commercial I district. Taylor filed an application for a variance with the Town's zoning board of adjustment (ZBA) for property that he was planning to purchase at 147 Plaistow Road (Route 125). On February 26, 1998, the ZBA granted Taylor's variance request, allowing him to establish a used car dealership less than 1,000 feet from an existing car dealership.

The Town's board of selectmen appealed the ZBA's decision to grant the variance. The Superior Court (Murphy , J.) reversed on the basis that denial of Taylor's request for a variance would not result in unnecessary hardship. See generally Town of Plaistow Bd. of Selectmen v. Town of Plaistow Zoning Bd. of Adjustment, 146 N.H. 263, 769 A.2d 397 (2001). We vacated the trial court's decision, see id. at 267, 769 A.2d 397, and remanded for further proceedings in light of the new criteria for unnecessary hardship set forth in Simplex Technologies v. Town of Newington, 145 N.H. 727, 731–32, 766 A.2d 713 (2001). Subsequently, the ZBA again granted the variance request and that decision was not appealed.

The plaintiffs brought the instant action in April 1999, seeking a declaration that the zoning ordinance is unconstitutional and requesting damages for the time during which Taylor owned the property but could not use it for vehicular sales. The trial court found that the ordinance is constitutional on its face and as applied to the plaintiffs' property, and thus denied the plaintiffs' petition for declaratory judgment.

The plaintiffs raised several issues in their notice of appeal, including whether the trial court erred in finding that: (1) the ordinance is constitutional on its face and as applied to the plaintiffs' property; (2) the ordinance's distinction between vehicular dealerships and other businesses bears a substantial relationship to the Town's stated goals; and (3) the Town was primarily concerned with aesthetics, safety and planning when enacting the ordinance. The plaintiffs also raised issues concerning the trial court's failure to rule on the arbitrariness of the proximity regulation and the trial court's consideration of the plaintiffs' economic damages in light of a prior trial court order bifurcating the plaintiffs' legal issues from a hearing on damages.

In a previous order in this case, we summarily affirmed the trial court's factual findings, which were supported by the record, and the trial court's decision to bifurcate the plaintiffs' damages claims from the legal claims. We limited our consideration to the plaintiffs' constitutional claims, specifically whether proximity regulations are invalid per se .

The plaintiffs argue that the ordinance is unconstitutional because no legitimate purpose is served by the imposition of the 1,000–foot proximity regulation. Furthermore, they argue that the ordinance violates their right to equal protection because there is no valid basis for treating vehicular dealerships differently from other retail businesses in terms of their proximity to each other. Because the constitutionality of an ordinance involves a question of law, we review the trial court's decision de novo . Webster v. Town of Candia, 146 N.H. 430, 434, 778 A.2d 402 (2001).

"A substantive due process challenge to an ordinance questions the fundamental fairness of an ordinance both generally and in the relationship of the particular ordinance to particular property under particular conditions existing at the time of litigation." Dow v. Town of Effingham, 148 N.H. 121, 124, 803 A.2d 1059 (2002) (quotation omitted). When a party contests the validity of an ordinance on the basis that it burdens all seeking to engage in the proscribed action, the appropriate inquiry is whether the claimant has proved that the ordinance constitutes a restriction on property rights that is not rationally related to the town's legitimate goals. Id. at 125, 803 A.2d 1059; see also Quirk v. Town of New Boston, 140 N.H. 124, 129, 663 A.2d 1328 (1995). Under this standard, there is a presumption favoring the constitutionality of the regulation, and in determining the validity of a zoning ordinance, its reasonableness will be presumed. Dow , 148 N.H. at 125, 803 A.2d 1059. In reviewing the reasonableness of a particular zoning provision, we are mindful that zoning is a legislative function and judging the wisdom of the legislation is not the function of this court. Quirk , 140 N.H. at 129, 663 A.2d 1328.

The State zoning enabling act grants municipalities broad authority to pass zoning ordinances for the health, safety, morals and general welfare of the community. Asselin v. Town of Conway, 137 N.H. 368, 371, 628 A.2d 247 (1993) ; see RSA 674:16, I (1996). In enacting a zoning regulation, a town may consider the knowledge of town selectmen and planning board members concerning such factors as traffic conditions and surrounding uses resulting from their familiarity with the area involved. Quirk , 140 N.H. at 129, 663 A.2d 1328. Furthermore, a municipality may exercise its zoning power solely to advance aesthetic values because the preservation or enhancement of the visual environment may promote the general welfare. Asselin , 137 N.H. at 371–72, 628 A.2d 247.

The zoning ordinance provides: "No lot used for a vehicular, trailer or recreational vehicle dealership in Commercial I District may be located any closer than one thousand (1,000) feet in any direction to any other lot used for a vehicular, trailer and recreational vehicle dealership." Plaistow, N.H., Zoning Ordinance § 300:14(b).

The trial court found that the Town primarily focused on aesthetics, safety and planning concerns when drafting and enacting the 1,000–foot buffer between vehicular dealerships. In particular, the planning board considered that vehicle dealers display their goods outdoors, often in a disorderly manner, and that the positioning of the vehicles creates potential traffic and fire access problems. These are legitimate reasons for which a town may exercise its zoning power. See Quirk, 140 N.H. at 130, 663 A.2d 1328 (holding that 200–foot "buffer zone" around recreational campgrounds was rationally related to the town's legitimate goals of avoiding unsightliness, containing noise and protecting abutters from safety hazards). Likewise, we defer to the planning board's judgment as to the proximity regulation's necessity and efficacy in...