Town of Windham v. Alfond

• Decision Date: 30 December 1986
• Docket Number: No. 86-106,86-106
• Citation: 129 N.H. 24,523 A.2d 42
• Parties: TOWN OF WINDHAM v. Howard and Joanne ALFOND.
• Court: New Hampshire Supreme Court

Page 42

523 A.2d 42

129 N.H. 24

TOWN OF WINDHAM v. Howard and Joanne ALFOND.

No. 86-106.

Supreme Court of New Hampshire.

Dec. 30, 1986.

Beaumont, Mason & Campbell P.A., Salem (Bernard H. Campbell, on brief and orally), for plaintiff.

Holland, Donovan, Beckett and Welch P.A., Exeter (William H.M. Beckett, on brief and orally), for defendants.

SOUTER, Justice.

The plaintiff town appeals an order of the Superior Court (Nadeau, J.), denying an injunction against the defendants' use of their residentially zoned property for the stabling and pasturing of horses kept for their personal recreation. The town contends that the court erred both in ruling that keeping horses was lawful as accessory to residential use under the local zoning ordinance, and in concluding that the conduct of town officials would, in any case, disqualify the town from obtaining the injunction requested. We reverse.

In February, 1983, the defendants, Howard and Joanne Alfond, purchased a house on six acres of land in a Residence A zoning district of Windham. In September, Mr. Alfond applied to the town building department for a permit to build a barn. Although the related construction plans did not indicate that the barn would be built to house animals, Mr. Alfond told the assistant building inspector, Robert Mackey, that he meant to keep horses in the barn. Mr. Mackey showed Mr. Alfond the zoning provisions for permitted uses in a Residence A district and advised him that keeping horses was not among them. Mr. Alfond left his permit request on file nonetheless, and Mr. Mackey added the adjective "storage" to the reference to "barn" on the application.

Mr. Alfond then consulted legal counsel, who advised that keeping horses would be lawful. When Mr. Alfond took this position on his next visit to the building department, Mr. Mackey again told him that it would be lawful under the ordinance to use the proposed barn for storage but not for horses. Mr. Alfond responded by saying "call it anything you want, we're putting horses on the property in that barn.... I don't care what you call it, but horses are going on the property." Despite the disagreement, Mr. Mackey proceeded to issue a building permit, although there was evidence that the permit described the building as a "storage barn."

The controversy continued. Before any construction began, the defendants' counsel wrote to the town formally stating that the Alfonds intended to keep horses in the barn. Mr. Mackey replied for the town that keeping horses would be unlawful without a zoning variance.

Mr. Mackey inspected the defendants' property in December, 1983, and May, 1984, by which time nothing more than footings had been constructed. In connection with the latter visit, Mr. Mackey again wrote to the defendants, again stating that keeping horses would violate the ordinance in the absence of a variance. Within two weeks, Mrs. Alfond filed an application for a variance, and while it was pending, the Alfonds bought an adjoining lot of some five and a half acres. Although the variance was thereafter denied, the Alfonds took no appeal and proceeded with the building.

The building inspector, Mr. Lamere, later made a third inspection, at which time no horse stalls had been constructed, but stalls were in place when Mr. Mackey returned for a fourth inspection in July, 1984. The Alfonds brought horses onto the property a month later, and in November the town advised the Alfonds' counsel that if the horses were not removed, the town would begin action to enforce the zoning ordinance. The Alfonds kept the horses, and this injunction proceeding followed.

The Windham zoning ordinance is an example of the so-called permissive variety. See "Land Use Regulations and Zoning Ordinance for the Town of Windham, N.H." § VI, C., 1. (hereinafter "Ordinance"); Treisman v. Kamen, 126 N.H. 372, 375, 493 A.2d 466, 470 (1985). In the absence of a variance or special exception, such an ordinance functions generally to prohibit uses of land unless they are expressly permitted as primary uses or can be found to be accessory to a permitted use. Id. at 375-76, 493 A.2d at 470.

As a first step in the application of such an ordinance one looks to the list of primary uses permitted in a given district established by the ordinance. So far as they are relevant here, the following provisions for permitted uses in the Residence A district occur in § VI, C., 1. of the Ordinance:

"C. Residence District A, B and C: The Residence Districts are intended as an area district for residences:

1. Uses Permitted:

a. Single-family detached dwellings.

b. Fields, woodlots and greenhouses as permitted in the Rural District

c. Accessory buildings and uses

* * *

* * *

In its narrative opinion, the trial court spent no time discussing the scope of the uses permitted by this language, and rightly so. The Ordinance does not expressly permit the keeping of horses or any other pets, and the legality of keeping them is properly regarded as an issue, not of primary, but of accessory use.

Before we turn to the trial court's treatment of that subject, however, we should take note of the defendants' argument that keeping horses is a primary permitted use, by virtue of the provision for the use of "[f]ields ... as permitted in the Rural District." We recognize at the outset that there is a real question whether this argument is even properly before us. We do not read the trial court's opinion as concluding that keeping horses was a primary permitted use, and the defendants have taken no cross-appeal from the court's failure to make such a ruling. The trial court did address the issue obliquely, however, in denying the town's request to find that the reference to "fields" did not permit horses, and we will accordingly assume for the defendants' sake that the issue of primary use may be argued on this appeal.

In maintaining that permission to use "fields" should be read to permit horses on the fields, the defendants invoke a dictionary definition of "fields" as "an area of cleared enclosed land used for cultivation or pasture," Websters Third New International Dictionary 845 (1961), and argue that permitting the use of a field for pasture necessarily permits the presence of an animal to graze the pasture land. We think the town is correct, however, in pointing out that a reading of the whole ordinance indicates otherwise. See Merrill v. Great Bay Disposal Serv., 125 N.H. 540, 543, 484 A.2d 1101, 1103 (1984) (statutory construction must consider entire statute, since all words must be given effect).

By the applicable terms of the ordinance, the scope of "fields" is its scope as used in the section governing the rural district. That portion of the ordinance not only provides for the use of land as "fields," § VI, B., 1., d., but also expressly allows the use of land for "grazing," § VI, B., 1., a., 2., and for "pastures" as well, § VI, B., 1., d. The express listing of grazing and pasture uses in addition to the use of land as "fields" consequently implies that permission to use land for "fields" does not include permission for grazing and grazing animals. See Merrill v. Great Bay Disposal Serv., supra at 543, 484 A.2d at 1103 (drafters presumed not to have used superfluous or redundant words). The adoption of the same definition of "fields" in the Residence A section of the ordinance does not, therefore, carry with it the permission for grazing that the defendants seek. This conclusion is consistent not only with the town's administrative interpretation, which is entitled to consideration, see Trottier v. City of Lebanon, 117 N.H. 148, 150, 370 A.2d 275, 277 (1977), but also with the common-sense expectation that provisions of a zoning ordinance for the most restrictive single residential use of land probably would not include permission to keep large grazing animals.

We proceed now to the issue on which the trial court placed principal emphasis, whether keeping horses is lawful as a use accessory to the primary residential use when open field space is available. An accessory use of property is one that is not expressly permitted by the ordinance itself, Town of Salem v. Durrett, 125 N.H. 29, 32, 480 A.2d 9, 11 (1984), but is occasioned by and subordinate to the permitted primary use, Gratton v. Pellegrino, 115 N.H. 619, 621, 348 A.2d 349, 351 (1975) and customarily, Dumais v. Somersworth, 101 N.H. 111, 113, 134 A.2d 700, 701 (1957), or habitually associated with it, Becker v. Hampton Falls, 117 N.H. 437, 440, 374 A.2d 653, 655 (1977). See Ordinance §§ II; VI, C., 1., C. While the strength or degree of the customary or habitual association does not lend itself to definition by formula, and while the combination need not occur in a majority of instances of the principal use, Town of Salem v. Durrett supra, the uses must be associated with a frequency that is substantial enough to rise above rarity. See id.

We have held that a landowner who claims the benefit of the accessory use doctrine has the burden to plead his reliance upon it and to produce evidence sufficient to permit a prima facie inference that the disputed use qualifies as an accessory one. Treisman v. Kamen, supra 126 N.H. at 377-78, 493 A.2d at 471. Although the defendants in this case satisfied their burden of pleading, and although they produced some relevant evidence, the evidence was insufficient to make a prima facie showing of accessory use.

The principal focus of the dispute here is not upon the first prong of the accessory use definition, dealing with occasioned and subordinate use, but upon the sufficiency of the evidence to establish that the association between the residential use of property and the keeping of horses is substantial enough to qualify as customary or habitual. The defendants' obligation to offer evidence on this point is underscored by a fact of which the trial court could properly take notice, N.H.R.Ev. 201(a), that Windham is in a portion...