Town of Nottingham v. Harvey

• Decision Date: 29 December 1980
• Docket Number: 79-275 and 79-464,Nos. 79-274,s. 79-274
• Citation: 424 A.2d 1125,120 N.H. 889
• Parties: TOWN OF NOTTINGHAM v. Daniel HARVEY et al. TOWN OF NOTTINGHAM v. LEE HOMES, INC. et al.
• Court: New Hampshire Supreme Court

Page 1125

424 A.2d 1125

120 N.H. 889

TOWN OF NOTTINGHAM v. Daniel HARVEY et al.

TOWN OF NOTTINGHAM v. LEE HOMES, INC. et al.

Nos. 79-274, 79-275 and 79-464.

Supreme Court of New Hampshire.

Dec. 29, 1980.

Sulloway, Hollis & Soden, Concord (Peter F. Imse, Concord, orally), for plaintiff Town of Nottingham, No. 79-274.

Shute, Engel & Frasier, Exeter (David C. Engel, Exeter, orally), for plaintiff Town of Nottingham, Nos. 79-275 and 79-464.

Barrett & McNeill, Durham (John T. Barrett, Durham, orally), for defendants.

PER CURIAM.

The validity of the Town of Nottingham zoning ordinance and subdivision regulations is the issue presented by the defendant Harvey's appeal. The town alleges that Harvey has violated both the zoning ordinance and the subdivision regulations by conveying subdivided lots of his property to his children. The Superior Court (Randall, J.) found that the town had validly adopted the ordinance and subdivision regulations and declared the conveyances void.

The town cross appeals the court's refusal to assess civil penalties and to award costs and attorney's fees. It argues that both actions are mandated by RSA 36:27, the ordinance, and Section VII(c) of the subdivision regulations.

On March 8, 1960, the Town of Nottingham enacted a zoning ordinance which established three zoning districts: General Residence and Agricultural District; Lake Residence District; and Recreational Camp District. In 1972 the town amended the ordinance to increase the minimum lot size within the General Residence and Agricultural District from one to two acres. That same year, in an unrelated proceeding, the superior court declared the town subdivision regulations invalid because they did not conform to the State enabling legislation. Shortly thereafter, the chairman of the town planning board signed four plans showing over 300 acres of Harvey-owned land which were located in the residential/agricultural district. Excluding swamp land and streets, the lots laid out on the plans were each less than two acres. The chairman testified that he had advised Mr. Harvey of this irregularity and that he had signed the plans, on advice of town counsel, only to show the outer perimeter of the land. At this time Harvey did not submit the plans for approval to the planning board, which did not then have the authority to approve subdivisions. The following year (1973), the planning board enacted subdivision regulations for the town.

In February of 1974, Harvey conveyed in five deeds 129 lots to five of his children. In December of 1975 the town, alleging that the conveyances violated the town zoning ordinance and subdivision regulations, filed a petition for declaratory judgment and other relief against Harvey and his children. Specifically, the town sought to void the conveyances and to have the court award costs and attorney's fees in addition to statutory civil penalties. Prior to a hearing on the merits, the town adopted a master plan for community development.

After a hearing the court held that the town had substantially complied with the enabling statute in effect in 1960 and that the zoning ordinance was legal. Additionally, it found that the town had validly adopted amendments to the zoning ordinance in 1972. Consequently, because the conveyances were void for failing to comply with a valid zoning ordinance, the judge ordered that the children reconvey the lots to their father, denying, however, the request of the town for costs and attorney's fees. Mr. Harvey alleges that the town of Nottingham did not adopt the 1960 zoning ordinance and the 1972 amendment to that ordinance in substantial compliance with the enabling legislation. R.L. 51:53 (1949); RSA 31:63 (1963) (current version at RSA 31:63 (Supp.1979)).

When a municipal ordinance is challenged, there is a presumption that the ordinance is valid and, consequently, not lightly to be overturned. Rochester v. Barcomb, 103 N.H. 247, 253, 169 A.2d 281, 285 (1961). See Carbonneau v. Town of Exeter, 119 N.H. 259, 265, 401 A.2d 675, 678 (1979); Surry v. Starkey, 115 N.H. 31, 33, 332 A.2d 172, 174 (1975); Bosse v. Portsmouth, 107 N.H. 523, 530, 226 A.2d 99, 105 (1967); Rockingham Hotel Co. v. North Hampton, 101 N.H. 441, 444, 146 A.2d 253, 255 (1958); 6 E. McQuillin, The Law of Municipal Corporations § 22.34 (3d ed.rev.1980). The party attacking the validity of a town zoning ordinance or subdivision regulation has the burden of proving the invalidity of the ordinance or regulation. Rye Dev. Co. v. Town of Greenland, 116 N.H. 520, 521, 363 A.2d 427, 428 (1976); Bosse v. Portsmouth, supra 107 N.H. at 530, 226 A.2d at 105; Rockingham Hotel Co. v. North Hampton, supra 101 N.H. at 444, 146 A.2d at 255; RSA 31:78 (Supp.1979). See generally Developments in the Law Zoning, 91 Harv.L.Rev. 1427, 1546-47 (1978). We have also held that minor deviations from the procedure set forth in the enabling legislation will not invalidate an ordinance if there was "substantial compliance" with the legislation. Bourgeois v. Town of Bedford, 120 N.H. ---, ---, 412 A.2d 1021, 1023 (1980); Barcomb v. Herman, 116 N.H. 318, 320, 358 A.2d 400, 402 (1976); Gutoski v. Winchester, 114 N.H. 414, 416, 322 A.2d 4, 6 (1974); McKinney v. Riley, 105 N.H. 249, 252, 197 A.2d 218, 221 (1964).

In the instant case the defendant first attacks the validity of the 1960 ordinance, alleging that the town had not properly posted the warrant for the March 8, 1960 town meeting. Although there is a presumption in the absence of evidence to the contrary that posting of a warrant did occur, McKinney v. Riley, supra at 252, 197 A.2d at 221, the town introduced direct testimony at trial that the warrant was posted. Additionally, the town supported its claim that it had adopted a zoning ordinance on March 8, 1960, by introducing Article 11 of the warrant of the March 8, 1960 town meeting, which the town clerk had recorded in the "Clerk's Book," and the Annual Town Report for the year ending December 31, 1959, which included the text of the proposed zoning ordinance. The record does not contain any evidence to rebut either the presumption or the testimony put forth by the town.

The defendant specifically challenges the validity of the town zoning ordinance because of the lack of a zoning map. He argues that, absent a map, it is impossible for him to tell in which zone his property is located.

Although the enabling legislation called for regulations, restrictions, and boundaries in town zoning, it did not require the presence of a zoning map to define such regulations, restrictions or boundaries. R.L. 51:53 (1949); RSA 31:63 (1963) (current version at RSA 31:63 (Supp.1979)). The Town of Nottingham Annual Report for the year ending December 31, 1959, included the text of the zoning ordinance which the town eventually adopted on March 8, 1960. The ordinance described the three districts which were marked on the original zoning map. The ordinance circumscribed the area included in the Lake Residence District by stating that the district "shall be considered as extending 1,000 feet in depth landward from the usual waterline." Accordingly, all other land within the town would fall within either the General Residence and Agricultural District or the Recreational Camp District.

Although the boundaries of the camp district and the general residence and agricultural district cannot be determined without evidence, any difference in lot size requirement is not material because less than two acre lots are not permitted in the general residence and agricultural district.

The defendant also challenges the validity of the 1972 amendment to the 1960 zoning ordinance on the ground that the required notices of the public meeting published by the planning board in a newspaper of general circulation according to RSA 31:63-a (1967) (current version at RSA 31:63-a (Supp.1979)) did not textually, or by reference to an identifiable map, define the boundaries of the General Residence and Agricultural District. In Schadlick v. Concord, 108 N.H. 319, 322, 234 A.2d 523, 526 (1967), we held that a municipality must provide its citizens with reasonable notice that their interests will be affected by the proposed adoption or amendment of a municipal zoning ordinance. In its decree the trial court found that, after holding four public hearings on the matter, the town had legally adopted the amendments to the 1960 ordinance on November 7, 1972. Because of our conclusion regarding the substantial compliance of the town in enacting the 1960 ordinance, albeit an ordinance whose zoning districts are defined by textual description rather than by a map, and because the record supports the conclusion of the court, we uphold the finding that the town validly enacted amendments to its zoning ordinance in 1972.

Harvey contends that the town did not validly adopt subdivision regulations on January 12, 1973, because the planning board had failed to provide adequate prior notice of the public hearing under RSA 36:23 (1969) (current version at RSA 36:23 (Supp.1979)) and RSA 91-A:2 (1971) (current version at RSA 91-A:2 (Supp.1979)). In an unrelated proceeding in November of 1972 the superior court dismissed a petition against Harvey, ruling that the town of Nottingham did not introduce evidence that the town had delegated the authority to regulate subdivisions to the planning board. On December 9, 1972, the town held a special meeting to delegate subdivision approval authority to the planning board. Shortly thereafter, notice was published in a newspaper of general circulation that the planning board would consider the adoption of subdivision regulations on January 5, 1973. After discussing only one-half of the proposed regulations at the January 5 meeting, the hearing was recessed until January 12, 1973. No further notice of the January 12, 1973 hearing was published. The planning board met on January 12 and approved all of the proposed subdivision regulat...