Town of Plaistow v. Nadeau, 84-227

Decision Date19 April 1985
Docket NumberNo. 84-227,84-227
Citation493 A.2d 1158,126 N.H. 439
CourtNew Hampshire Supreme Court

Sumner F. Kalman, Plaistow, by brief and orally, for plaintiff.

David R. Decker, Laconia, by brief and orally, for defendant.

BROCK, Justice.

The defendant appeals from a decree recommended by the Master (Peter Shapiro, Esq.) and approved by the Superior Court (Dalianis, J.) which permanently enjoins him from using a tract of land in Plaistow for the development of a manufactured housing project which did not comply with local ordinances and State statutes. We affirm.

The defendant, Bruce Nadeau, doing business as Nadeau Properties, entered into a purchase and sale agreement with one Kelley in April 1982, for the purchase of 95 acres of land located partially in a commercial zone but predominantly in a residential zone in Plaistow. The agreement was contingent upon the defendant obtaining approval from the town for the development of a manufactured housing park. His plan was to place 198 units on leased lots.

On April 21, 1982, the defendant sought the advice of Guy Sawyer, a Plaistow building inspector, concerning how he might proceed to obtain approval for his project. Mr. Sawyer suggested that he go before the Plaistow Planning Board to "kick it around." On April 28, 1982, the defendant, taking the advice of Mr. Sawyer and counsel, met with the planning board in an informal session, which was later described in the minutes of the meeting as "for discussion only." No notice was given pursuant to RSA 36:23 (Supp.1983) that the defendant's proposal was to be formally considered at the meeting.

The defendant presented the board with a preliminary plan of the site, and a discussion of thirty to forty minutes ensued. After conferring privately in executive session, the board advised the defendant that if the plan were to be submitted formally, it would not be approved with respect to the residential zone under the Plaistow Zoning Ordinance. They also advised him that the issue of manufactured housing would soon be the subject of a new town ordinance and suggested that the defendant might wish to participate with town officials in giving shape to this ordinance. Within a day or two following this meeting, the defendant began construction on his project, clearing debris from the land and undertaking engineering surveys.

On May 13, 1982, town officials posted a notice concerning a town meeting to consider a new manufactured housing ordinance, but because of a defect in the original posting, a second notice was posted on July 1, 1982. The special town meeting was finally held on September 14, 1982, and an ordinance was adopted that permitted manufactured housing only in residential zones on individually owned lots. During the period from April to September, when the ordinance was finally adopted, the defendant continued to develop his tract of land without a building permit or specific town approval. During the same period the building inspector apparently visited the site on occasion, but he never expressly stated to the defendant that his construction activities were unlawful under existing town ordinances.

On December 3, 1982, the town formally notified the defendant that his project was illegal under the new town zoning ordinance. Finally, in April 1983, the defendant met with town officials to see if he could "work something out," but he was told again that the project was illegal. Nonetheless, he continued to complete eight housing sites and sold some of the units.

In September 1983, the town commenced its legal action against the defendant, but its request for a temporary injunction was denied. After trial in February 1984, the master ruled that the defendant's project was in violation of the Plaistow Zoning Ordinance, Article III, Section 3.2. A permanent injunction was issued against the defendant, restraining him from utilizing the property in question as a manufactured housing park without the requisite State and municipal approvals.

On appeal the defendant claims that the master erred in ruling against him because (1) the defendant had acquired a vested interest in the development of his project; (2) the town was barred from bringing an action against the defendant in mandamus because the town had failed to appeal from the planning board's alleged "decision" in April 1982, not to assert its jurisdiction; and (3) the town failed to comply with the manufactured housing statute.

It is well established that a landowner who relies in good faith on the absence of a regulation which might prohibit his project and who has incurred substantial liabilities or has made substantial construction on his project, acquires a "vested right to complete the project despite the subsequent adoption of an ordinance prohibiting the same." Biggs v. Town of Sandwich, 124 N.H. 421, 426, 470 A.2d 928, 931 (1984).

In asserting that his rights to complete the development of his project were vested, the defendant argues that the master erred in several respects: (1) he should have found as a fact that the planning board had failed and refused to exercise jurisdiction; (2) he should have determined fully the extent of the defendant's investment in the housing park; and (3) he erred in concluding that the defendant had acted in bad faith.

This court will sustain a master's findings of fact if there is evidence from which a reasonable person could have made such findings. McAllister v. Peerless Ins. Co., 124 N.H. 676, 679, 474 A.2d 1033, 1035 (1984). The testimony at trial on the question of whether the town planning board either refused to exercise jurisdiction or did not have jurisdiction is contradictory at best, and depends upon how various witnesses, Mr. Nadeau included, chose to interpret what took place at the meeting. In addition, the record included the minutes of the meeting, which state that the board "could not discuss this plan ... because it does not in any form meet Town Zoning Requirements." The evidence presented to the master supports a finding that Nadeau's plan was not a formal proposal and that no formal hearing took place. No notice was given under RSA 36:23, I(d) (S...

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5 cases
  • Delude v. Town of Amherst
    • United States
    • New Hampshire Supreme Court
    • 2 Julio 1993
    ...See, e.g., Jensen's, Inc. v. City of Dover, 130 N.H. 761, 766-68, 547 A.2d 277, 280-82 (1988); Town of Plaistow v. Nadeau, 126 N.H. 439, 444, 493 A.2d 1158, 1162-63 (1985). Moreover, using "a declaratory judgment to test the legality of a zoning restriction allegedly in excess of the jurisd......
  • Demetracopoulos v. Strafford Guidance Center
    • United States
    • New Hampshire Supreme Court
    • 31 Diciembre 1987
    ...evidence when the record discloses "evidence from which a reasonable person could have made such findings." Town of Plaistow v. Nadeau, 126 N.H. 439, 442, 493 A.2d 1158, 1161 (1985). The plaintiff concedes that the master applied the appropriate principles of agency law. His contention is t......
  • Town of Barrington v. Gadd, 88-219
    • United States
    • New Hampshire Supreme Court
    • 31 Enero 1990
    ...evidence when the record discloses "evidence from which a reasonable person could have made such findings," Town of Plaistow v. Nadeau, 126 N.H. 439, 442, 493 A.2d 1158, 1161 (1985); and, as long as the decision is supported by the evidence, "[t]his court will not substitute its judgment fo......
  • Titcomb v. Anthony
    • United States
    • New Hampshire Supreme Court
    • 19 Abril 1985
  • Request a trial to view additional results
1 books & journal articles
  • Case List
    • United States
    • Bargaining for Development Case List
    • 19 Julio 2003
    ...1061 (N.Y. 1996) Town of Paradise Valley v. Gulf Leisure Corp. , 27 Ariz. App. 600, 557 P.2d 532 (1976) Town of Plaistow v. Nadeau , 493 A.2d 1158 (N.H. 1985) Town of Stephens City v. Russell , 241 Va. 160, 399 S.E.2d 814 (1991) Town of Sykesville v. West Shore Communications , 110 Md. App.......

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