Webster v. Town of Candia

• Decision Date: 21 May 2001
• Docket Number: No. 99-046, No. 00-348.
• Citation: Webster v. Town of Candia, 778 A.2d 402, 146 N.H. 430 (N.H. 2001)
• Parties: KENNETH WEBSTER AND MARGARET DEMOS, AS TRUSTEES OF THE KENNETH WEBSTER TRUST & a. v. TOWN OF CANDIA & a. JULEE SANDERSON, AS TRUSTEE OF CANDIA RANGEWAY REALTY TRUST v. TOWN OF CANDIA & a.
• Court: New Hampshire Supreme Court

146 N.H. 430

778 A.2d 402

KENNETH WEBSTER AND MARGARET DEMOS, AS TRUSTEES OF THE KENNETH WEBSTER TRUST & a. v.TOWN OF CANDIA & a.

JULEE SANDERSON, AS TRUSTEE OF CANDIA RANGEWAY REALTY TRUST v.TOWN OF CANDIA & a.

Nos. 99-046, 00-348.

Supreme Court of New Hampshire.

May 21, 2001.

Wadleigh, Starr & Peters, P.L.L.C., of Manchester (Robert E. Murphy, Jr. on the brief), for plaintiffsKenneth Webster and Margaret Demos, as Trustees of the Kenneth Webster Trust, and Winthrop Sargeant.

Devine, Millimet & Branch, P.A., of Manchester (Thomas Quarles, Jr. and Matthew R. Johnson on the brief, and Mr. Quarles orally), for plaintiffJulee Sanderson, as Trustee of Candia Rangeway Realty Trust.

Upton, Sanders & Smith, of Concord (Barton L. Mayer and Lauren S. Irwin on the briefs, and Mr. Mayer orally), for the defendants.

DALIANIS, J.

In this consolidated appeal, plaintiffsKenneth Webster and Margaret Demos as Trustees of the Kenneth Webster Trust, and Winthrop Sargeant(Webster plaintiffs), appeal the Superior Court's (Galway, J.) order affirming the decision of the Town of Candia Planning Board(planning board) denying their application to remove trees from Libbee Road, a designated scenic road.PlaintiffJulee Sanderson, as Trustee of Candia Rangeway Realty Trust (Sanderson), appeals the Superior Court's (Abramsom, J.) order affirming the planning board's decision denying her application to remove trees from Libbee Road.Sanderson also appeals the Superior Court's (Coffey, J.) order denying her motion for reconsideration.We affirm.

In June 1998, the Webster plaintiffs requested planning board consent to cut 256 trees on Libbee Road.At the time, they owned approximately 260 acres of land situated between Libbee and Baker Roads on which they planned to develop a cluster subdivision.The Webster plaintiffs sought to remove trees so that Libbee Road could be reclassified from a class VI to a class V highway, as required by the town's cluster subdivision ordinance.On August 5, 1998, following a hearing, the planning board denied the Webster plaintiffs' request.

The Webster plaintiffs eventually sold their land to Sanderson.In March 1999, Sanderson submitted a plan to cut approximately twenty-five trees on Libbee Road.The planning board denied this request in September 1999.Although the Webster plaintiffs no longer own the land, Sanderson has pursued their claims on appeal.

[1]"[W]e will uphold the trial court unless its decision is not supported by the evidence or is legally erroneous."Mt. Valley Mall Assocs. v. Municipality of Conway,144 N.H. 642, 647(2000)(quotation omitted)."We look to whether a reasonable person could have reached the same decision as the trial court based on the evidence before it."Id.(quotation omitted).

Sanderson argues that because the trial court's order affirming the planning board's September 1, 1999 decision was based solely upon the record, a "broade[r]" standard of review applies.To the contrary, we use the same standard of review, regardless of whether the appellate record consists only of the planning board's certified record.Seeid. at 646-47.

I.Constitutionality of Scenic Road Statute

The plaintiffs assert that RSA 231:158(1993), prohibiting cutting trees or destroying stone walls on designated scenic roads absent permission from the planning board (or other "official municipal body"), is impermissibly vague and thus void under the New Hampshire Constitution.Because the constitutionality of a statute involves a question of law, we review the superior court's determination de novo.Seeid. at 648.

"Due process requires that a statute proscribing conduct not be so vague as to fail to give a person of ordinary intelligence a reasonable opportunity to know what is prohibited."In re Justin D.,144 N.H. 450, 453(1999)(quotation omitted)."The necessary specificity ... need not be contained in the statute itself, but rather, the statute in question may be read in the context of related statutes, prior decisions, or generally accepted usage."Id. at 453-54(quotation omitted)."The party challenging the statute as void for vagueness bears a heavy burden of proof in view of the strong presumption of a statute's constitutionality."Id. at 454(quotation omitted).

RSA 231:158 provides, in pertinent part:

Upon a road being designated as a scenic road as provided in RSA 231:157, any repair, maintenance, reconstruction, or paving work done with respect thereto by the state or municipality ... shall not involve the cutting, damage or removal of trees [of a particular circumference], or the tearing down or destruction of stone walls, or portions thereof, except with the prior written consent of the planning board, or any other official municipal body designated by the meeting [of the town voters] to implement the provisions of this subdivision ....

RSA 231:158, II.Unless certain exceptions apply, the statute requires the planning board to conduct a duly noticed public hearing on any plan to remove trees or stone walls from a designated scenic road.Id. [2]This statute is sufficiently clear to warn the average person of the prohibited conduct (cutting trees of a specific circumference or destroying stone walls on designated scenic roads) and that if he or she wishes to engage in the prohibited activity, he or she must first obtain written planning board consent.We hold therefore that RSA 231:158 is not unconstitutionally vague.SeeAsselin v. Town of Conway,137 N.H. 368, 371(1993).

[3]The plaintiffs argue that the statute is void because it does not apprise an applicant of the standards that the planning board, or other official municipal body, will use when reviewing plans to cut trees or destroy stone walls on scenic roads."[A law] is not necessarily vague because it does not precisely apprise [an applicant] of the standards by which an administrative board will make its decision."Town of Freedom v. Gillespie,120 N.H. 576, 580(1980).In Gillespie, a municipal ordinance gave the local planning board power to approve plans for constructing or repairing septic systems and to grant variances.Id. at 578.The ordinance did not specify the standards by which the planning board would assess variance requests.Id. at 580.Nevertheless, we upheld it, holding it implied that the planning board would use the standards for granting variances contained in its subdivision regulations.Id.

[4]We similarly decline to find RSA 231:158 vague because it does not specify the standards the planning board will use when reviewing plans for tree cutting or stone wall destruction on designated scenic roads.We find it implied that the planning board will exercise its discretion consistent with the purpose of the road's scenic designation.Seeid.;cf.Derry Sand & Gravel, Inc. v. Town of Londonderry,121 N.H. 501, 505-06(1981)(ordinance permitting selectmen to issue private dump or junk yard licenses upon "good cause and sufficient reason" not vague; given ordinance's stated purpose, "good cause and sufficient reason" are circumstances that provide for "orderly" and "sanitary" disposal of garbage).

The warrant articles by which the town voted to designate Libbee Road as scenic specify that the purpose of so doing was to "protect[] and enhanc[e] ... the scenic beauty of Candia."See alsoN.H.S. JOUR. 708(1971)(purpose of scenic road statute is to "encourage the tourist attractiveness of our scenic roads in our towns and ... permit the retention of trees and stone walls so characteristic of our New England scenery").In context, then, RSA 231:158 informs a developer that any plan to cut trees or remove stone walls from a designated scenic road must not destroy the "scenic beauty" of the road.This is sufficient notice to developers of the relevant standards.

The legislature would have been hard pressed to define the concept of "scenic beauty" more specifically.SeeFinks v. Maine State Highway Commission,328 A.2d 791, 796(Me.1974).We agree with the Maine Supreme Judicial Court and the New Jersey Supreme Court that:

"The Act contemplates that there is a certain basic beauty in natural terrain and vegetation unspoiled by the hands of man, which it proposes to recapture or maintain.Although the extent to which each individual finds a specific landscape beautiful must be determined by a subjective test, this does not denote that there is no catholic criterion for the ascertainment of whether any scenic beauty exists in a given panorama.`Scenic beauty' is concerned with such manifold possible situations that it does not lend itself to a more specifically detailed descriptive statement.A tabulation of the various possible elements constituting scenic beauty is well-nigh impossible."

Id.(quotingWes Outdoor Advertising Company v. Goldberg,262 A.2d 199, 202(N.J.1970)).

Moreover, the concept of "scenic beauty[], although more generally used in a subjective sense, connotes, in terms of [the scenic road statute], a sufficiently definite concrete image ... to furnish in and of itself an adequate standard."Id.

We reached a similar conclusion in Deering v. Tibbetts,105 N.H. 481(1964).In Tibbetts,we were asked to rule upon the validity of a zoning ordinance prohibiting erection of any building within onequarter mile of the town common absent prior planning board approval and requiring that the location of the building maintain the town's atmosphere.Id. at 482.We found the ordinance contained sufficiently clear criteria to guide the selectmen in its administration:

If it can be and is reasonably determined by the selectmen that the atmosphere of the town ... will be maintained if the proposed structure is erected on the land bordering the town common, then they are bound to approve it.If it is reasonably determined that that atmosphere will not be maintained, or if it cannot reasonably be determined that it will, then the structure is prohibited.

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