Blevens v. Manchester

170 A.2d 121, 103 N.H. 284, 1961 N.H. LEXIS 33
CourtSupreme Court of New Hampshire
DecidedApril 28, 1961
Docket4870
StatusPublished
Cited by23 cases

This text of 170 A.2d 121 (Blevens v. Manchester) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Blevens v. Manchester, 170 A.2d 121, 103 N.H. 284, 1961 N.H. LEXIS 33 (N.H. 1961).

Opinion

*286 Kenison, C. J.

The power of the State to pass enabling legislation permitting municipal ordinances to regulate the subdivision of land has been sustained generally as a' proper exercise of the police power. Anno. 11 A. L. R. 2d 524; Webster, Urban Planning and Municipal Public Policy, ch. 9 (1958); Note, Land Subdivision Control, 65 Harv. L. Rev. 1226 (1952). “Since the subdivision of a large tract of land into a number of small building lots and the development thereof, either for residential or industrial purposes increases the value of the land in the aggregate to the subdivider and at the same time imposes new burdens upon the municipality and, if uncontrolled, upon other elements in the community, the validity of imposing a duty upon the subdivider to comply with reasonable conditions relating to location, site plan, location of and width of roads and sidewalks, the installation of necessary storm drains and sewers, and to restrictions on lot sizes so that the subdivision will conform to the local requirements for the safety, health and general welfare of the subsequent owners of the individual lots therein and of the community has been generally recognized.” 2 Rathkopf, The Law of Zoning and Planning, c. 71, s. 9 (1960).

Statutes, like RSA 36:19-29, regulating the subdivision of land seek to promote the orderly and planned growth of relatively undeveloped areas within a municipality. Brous v. Smith, 304 N. Y. 164; Rhyne, Municipal Law ss. 32-60 (1957); Reps, Control of Land Subdivision by Municipal Planning Boards, 40 Cornell L. Q. 258 (1955). Planless growth and haphazard development accentuate municipal problems in the demand for streets,, water and sanitary services which have a direct relation to traffic safety and health. 6 Powell, Real Property, s. 866 (1958); Stoneham v. Savelo, (Mass.) 170 N. E. 2d 417; State ex rel Jack v. Russell, 162 Ohio St. 281; Petterson v. Naperville, 9 Ill. 2d 233. The subdivision of land has a definite economic impact upon the municipality and hence the regulation of subdivision activities has been sustained as a means by which the interests of the public and the general taxpayer may be safeguarded and protected. Since the subdivider of land creates the need for local improvements which are of special benefit to the subdivision, it is considered reasonable that he should bear the cost rather than the municipality and the general taxpayer. Haar, Land-Use Planning, 347-351 (1959); Zastrow v. Brown Deer, 9 Wis. 2d 100; Comment, 1961 Wis. L. Rev. 310, 312; Lynbrook v. Cadoo, 252 N. Y. 308, 314.

The plaintiffs’ contention that “the police power is not involved” *287 in this litigation cannot be accepted. The fact that the lot areas may be satisfactory to the subdivider and prospective purchasers, or that the streets and drainage are also satisfactory to them does not bar the application of the subdivision statute and the ordinance enacted pursuant to it. Note, An Analysis of Subdivision Control Legislation, 28 Ind. L. J. 544 (1953). “One of the problems that has arisen is that of seeing to it that building lots are not laid out and sold and houses put thereon without some decent minimum of street paving and without some decent safety and health minimum of water and sanitary facilities. We all know that where subdivision of land is unregulated lots are sold without paving, water, drainage, or sanitary facilities, and then later the community feels forced to protect the residents and take over the streets and in some way or other provide for the facilities. One of the ways in which law and legislation are attempting to prevent just such situations is that of requiring paving, water, and drainage facilities to be installed, up to minimum public specifications, as a condition of approval of the plat. By means, therefore, of this city planning approach and technique and these developments in modes of subdivision regulation, and evils of the inharmonious street system, overcongestion of population, and deficiency in paving and sanitation and water facilities are coming to be reduced and prevented.” Bettman, City and Regional Planning Papers 74 (1946).

The plaintiffs’ basic contention is that the subdivision law and the ordinance enacted pursuant thereto are “retrospective laws” forbidden by N. H. Const., Pt. I, Art. 23rd. The pertinent part of RSA 36:27 reads as follows: “Whoever, being the owner or agent of the owner of any land located within a subdivision, transfers or sells or agrees to sell or negotiates to sell any land by reference to, or exhibition of, or by other use of, a plat of a subdivision, before such plat has been approved by the planning board and recorded or filed in the office of the appropriate register of deeds shall forfeit and pay a penalty of one hundred dollars for each lot or parcel so transferred or sold or agreed or negotiated to be sold . ... ”

The subdivision law and ordinance apply to all of the plaintiffs’ lots shown on their recorded maps which are unsold and any conveyed after the subdivision ordinance was approved by the city. This is not a retrospective law. Lake Intervale Homes, Inc. v. Parsippany-Troy Hills, 28 N. J. 423; Opinion of the Justices, 101 N. H. 515; Rochester v. Barcomb, 103 N. H. 247 (decided *288 April 4, 1961); Pepin v. Beaulieu, 102 N. H. 84, 89. It is admitted that most of the petitioners’ streets have not been formally accepted by the city of Manchester. See RSA 230:1; Harrington v. Manchester, 76 N. H. 347, 350; Wason v. Nashua, 85 N. H. 192. The provisions of the subdivision law that no building permit shall be issued unless the street “shall have been accepted or opened as or shall otherwise have received the legal status of a public street prior to that time” (RSA 36:26(a)) applies to streets and highways as defined in RSA 230:1. The subdivision law also applies to the layout of highways in subdivisions of the city which have been approved as provided in Laws 1915, c. 326. RSA 36:29. Hence the fact that the plaintiffs have recorded plans approved under a prior statute, which show “paper streets” or unaccepted streets or that some lots previously sold are upon accepted streets give the plaintiffs no vested right to demand that future sales shall be beyond the purview of the subdivision law and ordinance. What may have been an adequate proposed development when the plaintiffs’ plan was first recorded may be clearly insufficient to municipal needs today. Mansfield & Swett v. West Orange, 120 N. J. L. 145; 1 Yokley, Zoning Law and Practice (2d ed. 1953) s. 116; Johnson, Constitutional Law and Community Planning, 20 Law and Contemporary Problems 199 (1955).

The subdivision ordinance is attacked on the ground it is arbitrary and discriminatory. At the corner of Fairfield Street and Blevens Drive as shown on the plaintiffs’ map are four lots, Nos. 145, 219, 232 and 146.

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Bluebook (online)
170 A.2d 121, 103 N.H. 284, 1961 N.H. LEXIS 33, Counsel Stack Legal Research, https://law.counselstack.com/opinion/blevens-v-manchester-nh-1961.