Town of Surry v. Starkey, 6982

• Decision Date: 31 January 1975
• Docket Number: No. 6982,6982
• Citation: 332 A.2d 172,115 N.H. 31
• Parties: TOWN OF SURRY v. Roger M. STARKEY and Madolyn A. Starkey.
• Court: New Hampshire Supreme Court

Page 172

332 A.2d 172

115 N.H. 31

TOWN OF SURRY v. Roger M. STARKEY and Madolyn A. Starkey.

No. 6982.

Supreme Court of New Hampshire.

Jan. 31, 1975.

Bradley & Talbot, Keene (Homer S. Bradley, Jr., Keene, orally), for plaintiff.

Olson, Reynolds & McMahon, Keene (Arthur Olson, Jr., Keene, orally), for defendants.

KENISON, Chief Justice.

In this equity action the town of Surry seeks to enjoin defendants from excavating gravel on their land in violation of the applicable zoning ordinance. Defendants purchased twenty-four acres in 1964 with the primary intention of exploiting the various grades of gravel which it contained. Since 1964 they have removed gravel from the land with the result that about six or seven acres are devoted exclusively to gravel removal at the present time. Defendant Roger M. Starkey testified that in addition to removing gravel he has used some of the land to grow corn and to produce loam.

At a town meeting on March 9, 1971, the town, pursuant to powers granted to it by RSA 31:60, amended § 4 (General District Uses) of its zoning ordinance to read as follows:

'A.2 No land within 200 feet of the centerline of any public highway shall be used for a gravel bank nor shall any part of the topsoil or subsoil be removed from any such premises except in connection with construction undertaken upon the premises; land may be used for such purpose beyond the depth of 200 feet from the centerline of any public highway only with the approval (special exception) from the Board of Adjustment, which may impose such conditions and restrictions thereon as the Board sees fit.'

§ 6:1(b) (Non-conforming Uses) of the same ordinance provides that '(N)o present non-conforming use shall be extended to enlarged beyond the limits or area occupied by such non-conforming use on the date of adoption of this Ordinance.' It was admitted that the defendants operate the only gravel bank in the town of Surry. The Starkeys did not apply for a 'special exception' under § 4:A.2 because they felt that as owners of the property prior to passage of the ordinance they were justified in continuing to use it for the removal of gravel.

The trial court which had the benefit of a view found that the town ordinance was unreasonable since it curtailed the 'best use and practically the only use of the land.' However, in light of what the Trial Court perceived as an uncertainty in the current status of this State's law regarding the limitation and termination of nonconforming uses, Loughlin, J., transferred for our resolution the questions whether the ordinance is reasonable and, if not, what guidelines should be used to regulate the removal of gravel.

A nonconforming use has been defined as a preexisting use of land that is permitted to continue after the enactment of a zoning ordinance which prohibits the use. 6 R. Powell, Real Property § 869 (1973); 2 A. Rathkopf, Law of Zoning and Planning 58-1 (1972); 1 R. Anderson, American Law of Zoning § 6.01 (1968). Despite the fact that nonconforming uses violate the letter and the spirit of zoning laws, they have evolved for the purpose of protecting property rights that antedated the existence of an ordinance from what might be an unconstitutional taking. Id. In order to eliminate nonconforming uses without destroying property rights several methods have been devised, ranging from the abatement of the use as a public nuisance to amortization of the use over a reasonable period of time. Alstyne, Taking or Damaging By Police Power: The Search for Inverse Condemnation Criteria, 44 S.Cal.L.Rev. 1, 42 (1971); LaChapelle v. Goffstown, 107 N.H. 485, 487, 225 A.2d 624, 626 (1967); Livingston Rock & Gravel Co. v. County of Los Angeles, 43 Cal.2d 121, 127-128, 272 P.2d 4 (1954). Recently, the law of nonconforming uses has been criticized as being an ineffective means of promoting the goals of zoning and an inappropriate mode for eliminating public nuisances. Model Land Development Code art. 4, Comment at 177 (Proposed Official Draft No. 1, 1974); R. Babcock, What Should and Can Be Done with Nonconforming Uses, 1972 Institute on Planning, Zoning and Eminent Domain 23, 35.

This court has dealt with the problems raised by the limitation and by the termination of nonconforming uses on several occasions. Riverview Park, Inc. v. Hinsdale, 113 N.H. 693, 313 A.2d 733 (1973); Flanagan v. Hollis, 112 N.H. 222, 293 A.2d 328 (1972); LaChapelle v. Goffstown, 107 N.H. 485, 225 A.2d 624 (1967). As the result of these cases, a flexible standard for testing the reasonableness of town zoning ordinances has evolved which balances the interests of the public in limiting or terminating the use as against the interests of the private party in continuing the use. Flanagan v. Hollis, supra 112 N.H. at 225, 293 A.2d at 330; LaChapelle v. Goffstown, supra 107 N.H. at 489, 225 A.2d at 627. It is well-settled law, however, that an ordinance is presumed valid. Bosse v. Portsmouth, 107 N.H. 523, 530, 226 A.2d 99, 105 (1967).

In the Flanagan case the specific problem of the nonconforming gravel bank was raised. There a town zoning ordinance limited the enlargement of existing gravel excavations to a 25% increase in area and to a maximum depth for the entire area equal to the deepest point on the effective date of the ordinance. There was no allegation that the removal of gravel constituted the only use of the land. Flanagan v. Hollis, supra 112 N.H. at 224, 293 A.2d at 329. In sustaining the reasonableness of the ordinance we...