Town of Deering ex rel. Bittenbender v. Tibbetts

• Decision Date: 17 July 1964
• Citation: 105 N.H. 481,202 A.2d 232
• Parties: TOWN OF DEERING ex rel. William B. BITTENBENDER v. Earl TIBBETTS.
• Court: New Hampshire Supreme Court

Page 232

202 A.2d 232

105 N.H. 481

TOWN OF DEERING ex rel. William B. BITTENBENDER v. Earl TIBBETTS.

Supreme Court of New Hampshire.

Argued June 3, 1964.

Decided July 17, 1964.

Tiffany & Osborne, Gordon M. Tiffany, Concord, for plaintiff town.

Nelson, Winer & Lynch, Nashua and Douglas S. Hatfield, Jr., Nashua, for plaintiff Bittenbender.

Cleveland, Waters & Bass, Warren E. Waters, Concord, for The Deering Community Church, amicus curiae.

Louis P. Faustini, Goffstown, for defendant Tibbetts.

DUNCAN, Justice.

The agreed statement of facts establishes that the structure which the defendant Tibbetts proposes to erect will be situated within one-fourth mile of Deering common and 'is in violation of the ordinance as adopted * * * in that approval of the selectmen has not been obtained.' Proper procedures were followed in the adoption of the ordinance and in mid-August 1963 the defendant's application for permission to erect a 'pre-built home' on the lot in question (see Town of Manchester v. Phillips, 343 Mass. 591, 595, 180 N.E.2d 333) was denied by the selectmen 'on the grounds that the nature and design of the building * * * and the intended location of the same were such as to impair the atmosphere of the Town.' The agreed statement further discloses that the plaintiff Bittenbender owns certain land and buildings within one-fourth mile of the common.

It is further agreed that no planning board has been appointed under RSA ch. 36; the selectmen were authorized to appoint a 'planning commission' by action taken at the 1961 town meeting and such a commission was appointed and submitted a report to the 1963 town meeting; the latter meeting authorized the selectmen to appoint a zoning commission under RSA 31:65, but no zoning ordinance has been adopted under RSA 31:60-31:64.

At the March 1964 meeting a proposed zoning ordinance or code of regulations was submitted to the voters, but failed of adoption. At the same meeting a proposal to repeal the 1962 ordinance which gives rise to these proceedings also failed of adoption.

The plaintiffs, and the Community Church which supports their position, assert that the by-law which the town adopted in 1962 is one which it was empowered to enact (RSA 31:39) and a valid exercise of the police power of the town. The defendant contends that the ordinance is not a valid exercise of the statutory authority to establish zoning (RSA 31:60), or of any other statutory power, or of the general police power, because grounded solely upon aesthetic considerations and lacking in adequate standards for the guidance of the selectmen in enforcing the ordinance.

The plaintiffs make no pretense that the ordinance in question is a zoning ordinance. Rather they rely upon the general power of towns to make by-laws 'making and ordering their prudential affairs,' and in particular 'for the care, protection, preservation and use of the public * * * commons, libraries and other public institutions of the town.' RSA 31:39, supra. See 5 McQuillin, Municipal Corporations (3d ed.) s. 15.01. They point out that as early as 1784 the common was a matter of concern to the inhabitants of the town (XI Town Papers of N. H. 494), the that it is today a center upon and about which cluster the meetinghouse of the Community Church, the town hall and the town library. Photographs of these buildings as well as of the adjoining dwelling of the plaintiff Bittenbender show them to be structures typical of early New Hampshire architecture, so situated about the common as to create a dignified and harmonious center.

The statute relied upon by the plaintiffs would clearly authorize the enactment of bylaws providing for the protection of the common or other 'public institutions' by the regulation of conduct in and upon the public grounds and buildings (cf. P.S. [1901] c. 7, s. 5), or by the erection of fencing of enclose such grounds. Sherburne v. Portsmouth, 72 N.H. 539, 58 A. 38. The regulation which the plaintiffs seek to enforce however extends beyond the area of public ownership to its periphery of privately-owned property lying within a radius of one-fourth mile. Such a regulation, it is suggested, is a valid exercise of the police power for the purpose not only of preserving the value of the historic buildings about the common but also of promoting the general economy, welfare, and prosperity of the town, and the value of privately-owned properties within it.

That such a purpose is a generally recognized basis for the exercise of the police power is now too well established to be open to question. See Sundeen v. Rogers, 83 N.H. 253, 256, 141 A. 142, 57 A.L.R. 950. The fact that aesthetic considerations having a purpose to foster civic beauty and preserve places of historic and architectural value were also factors motivating the enactment is not fatal. Opinion of the Justices, 103 N.H. 268, 169 A.2d 762. See Laws 1963, c. 178 (RSA 31:89-a to 31:89-j (supp)). 'The beauty of a residential neighborhood is for the comfort and happiness of the residents and it tends to sustain the value of property in the neighborhood. It is a matter of general welfare like other conditions that add to the attractiveness of a community and the value of residences there located.' Town of Lexington v. Govenar, 295 Mass. 31, 36-37, 3 N.E.2d 19.

The suggestion made in Sundeen v. Rogers, supra, 83 N.H. 258, 141 A. 144, that '[n]o very conclusive argument can be advanced to show that the line of legal right on the one hand and liability on the other should be drawn at [the] place' where matters 'discerned through smell or hearing' leave off and 'matters which are evident to sight only' begin, has not become full circle in some jurisdictions. 'Once it be conceded that aesthetics is a valid subject of legislative concern, the conclusion seems inescapable that reasonable legislation designed to promote that end is a valid and permissible exercise of the police power.' People v. Stover, 12 N.Y.2d 462, 467, 240 N.Y.S.2d 734, 738, 191 N.E.2d 272, 275; see comment, 15 Syracuse L.Rev. 33. See also, 8 McQuillin, Municipal Corporations (3d ed. Rev.) s. 25.31.

In the case before us it is unnecessary to rely solely upon aesthetic considerations to sustain the exercise of the power invoked. We think it reasonably plain that more than aesthetics is involved.

We are of the opinion likewise that the purpose of the ordinance was one which could...