Town of Freedom v. Gillespie, 79-349

• Decision Date: 10 September 1980
• Docket Number: No. 79-349,79-349
• Citation: 120 N.H. 576,419 A.2d 1090
• Parties: , 15 ERC 1004 TOWN OF FREEDOM v. James GILLESPIE.
• Court: New Hampshire Supreme Court

Page 1090

419 A.2d 1090

120 N.H. 576, 15 ERC 1004

TOWN OF FREEDOM v. James GILLESPIE.

No. 79-349.

Supreme Court of New Hampshire.

Sept. 10, 1980.

Burns, Bryant, Hinchey, Cox & Shea, Dover (Donald R. Bryant, Dover, orally), for plaintiff.

Nighswander, Lord, Martin & KillKelley, Laconia (David J. KillKelley, Laconia, orally), for defendant.

KING, Justice.

This is an appeal from a Superior Court decree (Wyman, J.) granting the plaintiff's petition to permanently enjoin the defendant, James Gillespie, from constructing a septic system on his property.

The defendant owns a three-bedroom house on land which abuts Ossipee Lake in the town of Freedom. In January 1976, the defendant received approval from the New Hampshire Water Supply and Pollution Control Commission to construct a waste disposal system which would accompany the construction of a two-bedroom guest cottage to be located on the same property. In March 1977, the town of Freedom in its town meeting enacted two by-laws known as Articles 28 and 29. Article 28 increased the minimum distance of leach fields from all lakes, streams, and other bodies of water from 75 feet to 125 feet and also gave the Freedom Planning Board authority to grant final approval of construction of and repairs to all septic systems and the power to grant variances. Article 29 authorized the planning board to limit new construction to "one single family dwelling" on every lot which contained 40,000 square feet or less.

Subsequent to the enactment on those articles, the plaintiff notified the defendant that his proposed septic system was in violation of article 28 and would not be approved by the planning board. In July 1979, the superior court granted the plaintiff's petition for a temporary injunction and on October 1 of that year, the court permanently enjoined the defendant from constructing his septic system because it did not conform to the setback requirement of article 28.

The defendant first argues that article 28 is invalid because it is not authorized by State law. We disagree. Towns are authorized under RSA 31:39 (Supp.1979) to make by-laws for a variety of purposes which fall into the category of health, welfare and public safety. Piper v. Meredith 110 N.H. 291, 295, 266 A.2d 103, 106 (1970). We have held that ordinances which prescribe setback requirements are a valid exercise of the general police power under RSA 31:39. Piper v. Meredith, supra; Jaffrey v. Heffernan, 104 N.H. 249, 183 A.2d 246 (1962). This police power includes the authority to prohibit practices and conditions with respect to sewerage, so long as the ordinance involved bears a reasonable relationship to the public sanitation, health and welfare. 7 McQuillin, Municipal Corporations, § 24.256 (1968 Rev.Vol.). Article 28 is a setback ordinance which requires that septic systems be placed at least 125 feet from bodies of water. The town enacted article 28 in order to prevent further pollution of Ossipee Lake. Evidence presented at the trial indicated that the high permeability of the defendant's soil, coupled with the presence of an adjacent watercourse, could result in effluents from the defendant's property flowing into Ossipee Lake. This is precisely the type of problem which article 28 attempts to prevent. We therefore hold that article 28 is a reasonable exercise of the general police power granted to municipalities pursuant to RSA 31:39 (Supp.1979), and that it was reasonably applied to the defendant here.

The defendant next argues that article 28 is invalid because it impermissibly delegates the authority to approve septic systems to the planning board.

Although the general function of the board is to prepare a master plan for the development of the municipality, Kostreles v. Portsmouth, 104 N.H. 392, 397, 187 A.2d 789, 793 (1963), the powers of the planning board are not limited solely to its preparation. See, e. g., RSA 36:11, :19-a (Supp.1979). The planning board "may be given such powers as may be necessary to enable it to ... promote municipal planning ...." RSA 36:10. The health and welfare of the populace is an important consideration for the planning board in its attempt to provide for the orderly development of the municipality, and article 28 is a reasonable attempt by the town to protect the health and welfare of its citizens. Towns are empowered to "appoint all ... officers as may be necessary to carry the by-laws into effect ...." RSA 31:39 (Supp.1979). Here the town of Freedom delegated the authority to enforce the provisions of article 28 to the planning board. A reading of both RSA 36:2 et seq. and RSA 31:39 (Supp.1979) reveals no bar to the town of Freedom delegating the enforcement of its septic system setback ordinance to the planning board.

The defendant asserts that article 28 is impermissibly vague because it does not specifically set forth the elements necessary to obtain a variance. Generally, a municipal ordinance must be framed in terms sufficiently clear, definite, and certain, so that an average man after reading it will understand when he is violating its provisions. 56 Am.Jur.2d Municipal Corporations § 367. An ordinance is not...