Town of Seabrook v. Vachon Mgmt., Inc.

• Citation: 745 A.2d 1155,144 N.H. 660
• Decision Date: 08 February 2000
• Docket Number: No. 98–139.,98–139.
• Court: Supreme Court of New Hampshire
• Parties: TOWN OF SEABROOK v. VACHON MANAGEMENT, INC. and another.

144 N.H. 660

745 A.2d 1155

TOWN OF SEABROOK

v.VACHON MANAGEMENT, INC. and another.

No. 98–139.

Supreme Court of New Hampshire.

Feb. 8, 2000.

Donahue, Tucker & Ciandella, of Exeter (Robert D. Ciandella and Scott E. Woodman on the brief, and Mr. Ciandella orally), for the plaintiff.

Marshall Law, of East Kingston (Keri J. Marshall on the brief, and W. Michael Todd orally), for the defendants.

H. Bernard Waugh, Jr., of Concord, by brief, for New Hampshire Municipal Association, as amicus curiae.

BRODERICK, J.

The plaintiff, Town of Seabrook (town), sought an injunction against the defendants, Vachon Management Inc. (Vachon) and Adult Video Inc. (Adult Video), to stop live nude dancing at the defendants' business in Seabrook. The Superior Court (Gray, J.), following a hearing on the merits, dismissed the petition on the basis that live nude dancing, although in violation of the town's zoning ordinance for sexually-oriented businesses, was a lawful nonconforming use. We reverse.

We sustain the findings and rulings of the trial court " unless they are lacking in evidential support or tainted by error of law." Public Serv. Co. of N.H. v. Town of Bow, 139 N.H. 105, 107, 649 A.2d 65, 66 (1994) (quotation omitted), and we review the record in the light most favorable to the defendants. Adult Video owns and operates a business known as "Leather and Lace," which opened in 1990. It originally sold adult books, magazines, videotapes, and paraphernalia, and subsequently installed coin-operated video booths for the purpose of viewing videotapes. Leather and Lace was issued one-year licenses to operate the video booths during 1990, 1995, 1997, and 1998. At present, it is licensed to operate ten booths.

Vachon is the owner of a multi-unit building on Lafayette Road in Seabrook (property). When Leather and Lace opened in 1990, it occupied one of six first-floor units in the building, known as unit one. The adjacent unit, unit two, was occupied by a third party who between 1989 and 1992 used it for retail computer equipment sales.

In May 1991, the town's building inspector, Robert Moore, received a complaint that the chief executive officer of Leather and Lace, Ivan Eaton, was living in the back room of the business. As a result, Moore inspected the unit and discovered that Adult Video had constructed a stage in the rear storage/office area to facilitate the presentation of live entertainment, including mud and oil wrestling, for audiences of up to twenty people. Moore advised Eaton that the unit's septic system would have to be upgraded to accommodate the increased traffic using his premises to view live entertainment. Moore also expressed concerns that the site's parking capacity would not accommodate the additional patrons. Moore told Eaton that a change of use from retail to live entertainment in unit one, to be lawful, would require site plan approval by the town planning board. See Seabrook, N.H., Ordinances ch. 225, art. V, §§ 224–32 (1986). Eaton did not pursue site plan review and subsequently removed the stage and ceased offering live entertainment.

In September 1992, Moore received a complaint that mud wrestling was occurring in unit two. He visited the site to verify the complaint, and although he was unable to gain entry, he observed a sign posted at the property which advertised mud wrestling. In fact, since January 1992, Eaton had been staging bachelor parties and live wrestling events in unit two. Because the sewer system in unit one was inadequate to support live entertainment, Eaton expanded his operations to unit two, which was on a separate sewer system.

In March 1994, the town enacted a zoning ordinance designed to regulate the operation of "sexually oriented businesses." The regulations prohibit a sexually oriented business from operating within 1,000 feet of a church or place of worship, 300 feet of a residence, or 500 feet of the town boundaries. By virtue of its proximity to the town border, a residence, and a church, Leather and Lace violated the ordinance.

Between 1994 and 1996, Moore received no complaints about Leather and Lace. Indeed, in May 1995, Moore signed an affidavit asserting that Leather and Lace had never been in violation of State or local health codes or other laws over which Moore had jurisdiction. In late November 1996, however, the Seabrook police chief informed Moore that Leather and Lace had expanded its operations to include unit two, and that it was holding live entertainment on the premises. Moore visited the property in January 1997 to talk with Eaton about the complaint and discovered that a portion of the wall separating units one and two had been removed. He also observed that Eaton had installed two booths for viewing live nude dancing (fantasy booths) and other performances in unit two. The fantasy booths were installed in October 1996 in the area where bachelor parties had been held since 1992. Mud wrestling ceased when the fantasy booths were introduced. At present, Leather and Lace has six video booths and four fantasy booths. It no longer offers mud wrestling or bachelor parties.

At the conclusion of the town's case, the superior court dismissed its injunction petition on the basis that live nude entertainment was lawful in unit two at the time the town began to regulate sexually-oriented businesses in 1994. In addition, the court concluded that the activity existed with the knowledge and apparent acquiescence of town officials. It held that the fantasy booths qualified as a nonconforming use, and were thus unaffected by the 1994 zoning ordinance on sexually oriented businesses. Although the trial court did not specifically find that fantasy booths were grandfathered as a proper expansion of mud wrestling, a preexisting nonconforming use, such a conclusion is implicit in the trial court's opinion.

On appeal, the town argues that the trial court erred in ruling that fantasy booths were a nonconforming use exempt from the 1994 zoning ordinance. It also asserts that although mud wrestling was a permitted use when introduced in unit two in 1992, it represented a change from the prior use of the unit for retail sales of computer equipment, and thus was subject to site plan review. Because no site plan was ever submitted, the town argues, the change of use was unlawful, thereby rendering it an illegal nonconforming use when the 1994 zoning ordinance was enacted.

The defendants counter that fantasy booths are a lawful nonconforming use because the change in use from video booths to fantasy booths was not substantial and therefore did not require site plan review. Finally, they argue that the doctrines of laches and estoppel provide an equitable basis to defeat the town's injunction petition.

I

The town's zoning ordinance permits several categories of land use. "Recreation," a permitted use, includes "[c]ommercial amusements and entertainment which [are] conducted within the confines of a building." Seabrook, N.H., Ordinances ch. 263 (1991). The ordinance specifically incorporates "Commercial Entertainment," which is defined as "any show or display, whether live, by film or by other means of presentation, which is provided in exchange for value received or pledged." Id . ch. 263, § 3. The town zoning ordinance also allows for "Retail and Service Businesses." See id.

In 1985, the town passed a site plan review regulation. See RSA 674:43, I, : 44 (Supp.1987). The regulation provides: "Site plans for all nonresidential development ... whether or not such development includes a subdivision or resubdivision of the site, shall be reviewed by the Planning Board. This regulation shall apply to new construction, substantial expansion of existing buildings, a change of use or combinations of the above." Seabrook, N.H., Ordinances ch. 225, art. V, §§ 224–32 (emphasis added.)

In 1994, the town adopted a zoning ordinance to regulate "sexually oriented businesses," which were defined as "any place of business in which any of the following activities are conducted: adult bookstore or adult video store, adult motion picture theater ... adult theater." Seabrook, N.H., Ordinances ch. 225, art. XIV (1996). The ordinance forbade such businesses " within 1,000 feet of a church or place of worship ... 300 feet from a residence ... or 500 feet from Town boundaries," but allowed them to continue unabated if they "ha [d] been established at their existing locations prior to the effective date of th[e] ordinance." Id .

The New Hampshire Constitution and State statute both recognize that an established use of land is not disturbed by a subsequent land restriction. N.H. CONST. pt. I, arts. 2, 12 ; RSA 674:19 (1986). To qualify for such protection, a nonconforming use must lawfully exist at the time the restriction is adopted and have continually existed since that time.

Arsenault v. Keene , 104 N.H. 356, 358–59, 187 A.2d 60, 62 (1962). In keeping with the general policy of zoning law to carefully limit the extension and enlargement of nonconforming uses, we strictly construe provisions that permit the continuance of such uses. See id . at 358, 187 A.2d at 62. "Accordingly, the party asserting that a proposed use is not new or impermissible bears the burden of proof." Peabody v. Town of Windham, 142 N.H. 488, 493, 703 A.2d 886, 889 (1997).

It is not disputed that the use of unit two for mud wrestling, which began in 1992, violated the town's "sexually oriented businesses" ordinance because of its location. Although the use existed before the town enacted the ordinance in 1994, it does not qualify as a nonconforming use because it was not a lawful preexisting use. See Arsenault , 104 N.H. at 359–60, 187 A.2d at 62–63. When Leather and Lace converted unit two from a computer retail establishment to a venue for mud wrestling in 1992, it changed the use from "retail" to "commercial entertainment." This change was sufficient to trigger the town's site plan review ordinance because it constituted a change from one ...