Caspersen v. Town of Lyme

661 A.2d 759, 139 N.H. 637, 1995 N.H. LEXIS 70
CourtSupreme Court of New Hampshire
DecidedJune 27, 1995
DocketNo. 92-070
StatusPublished
Cited by8 cases

This text of 661 A.2d 759 (Caspersen v. Town of Lyme) 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
Caspersen v. Town of Lyme, 661 A.2d 759, 139 N.H. 637, 1995 N.H. LEXIS 70 (N.H. 1995).

Opinions

HORTON, J.

The plaintiffs, Finn M.W. Caspersen and Barbara M. Caspersen, trustees, appeal a decision of the Superior Court (Perkins, J.) upholding the validity of a zoning ordinance enacted by the defendant, Town of Lyme (town). On appeal, the plaintiffs argue that a provision in the ordinance that prohibits lot sizes of less than fifty acres in a mountain and forest district: (1) violates their substantive due process and equal protection rights under the State and Federal Constitutions; (2) is exclusionary; (3) violates New Hampshire’s controlled growth statutes; and (4) was improperly adopted. We affirm.

The town is a rural community situated on the western edge of the State, roughly at the midpoint of the border between New Hampshire [639]*639and Vermont. It is bounded on the west by the Connecticut River and on the east by mountainous, undeveloped terrain.

The plaintiffs own roughly 800 acres of land in the southeast comer of town, which they purchased between 1962 and 1990. They manage the property for forestry. For tax purposes, they keep all but a few acres classified as open space land. See RSA 79-A:2, IX (Supp. 1994). The plaintiffs have never attempted to develop their land and have no plans to do so.

In 1989, the town adopted a comprehensive zoning ordinance which is the subject of this appeal. In the years preceding the town’s adoption of the zoning ordinance, the town passed numerous general ordinances regulating certain land uses. During the early 1980’s, the town’s planning board began developing a master plan pursuant to RSA 674:l-:4 (1986 & Supp. 1994). In 1985, having completed the master plan, the town began work on a comprehensive zoning ordinance.

The first ordinance proposal was rejected by the voters. This proposal allowed only one dwelling per lot and prohibited subdivision. The voters were concerned about these provisions. The planning board, in the words of one of its mémbers, “went back to the drawing board.”

The present version of the zoning ordinance permits forestry and single family dwellings within the mountain and forest district. It establishes a minimum conforming lot size of fifty acres. The stated objectives of the mountain and forest district include: (1) encouraging the continuation of large tracts of forest land; (2) encouraging “forestry and timber harvesting,” while permitting other compatible uses including low density development; (3) protecting wildlife habitat and natural area; and (4) avoiding unreasonable town expenses.

Two public hearings on the revised ordinance were held in Januaiy and February 1989. On March 6, 1989, the plaintiffs and other landowners from the proposed mountain and forest district submitted a protest petition to the town pursuant to RSA 675:5 (1986) (current version at RSA 675:5 (1986 & Supp. 1994)). The revised ordinance was passed at a regular town meeting. Less than a two-thirds majority voted for its passage.

The plaintiffs challenged the ordinance. The town’s board of selectmen held a rehearing but did not sustain the plaintiffs’ challenge. The plaintiffs appealed to the superior court. See RSA 677:4 (1986) (current version at RSA 677:4 (Supp. 1994)). Several town residents intervened in the action in support of the town. The superior court upheld the validity of the ordinance. This appeal followed.

I. Standing to Challenge Exclusionary Zoning

In their appeal to the superior court, the plaintiffs complained that the zoning ordinance is exclusionary because it effectively precludes development of low- or moderate-income housing on their property in the [640]*640mountain and forest district. The trial court ruled that the plaintiff's lacked standing to challenge the ordinance on that basis. We agree.

The plaintiffs appealed to the superior court under the provisions of RSA 677:4. Aparty may appeal an adverse zoning action: (1) by way of statutory appeal, see RSA 677:2 (1986) (current version at RSA 677:2 (Supp. 1994)) and RSA 677:4; (2) by way of declaratory judgment, see Blue Jay Realty Trust v. City of Franklin, 132 N.H. 502, 503, 504, 567 A.2d 188, 193, 195 (1989); or (3) by way of an equitable proceeding, see Soares v. Atkinson, 129 N.H. 313, 314, 529 A.2d 867, 867 (1987) (underlying action commenced by bill in equity seeking injunctive relief). A facial challenge to a zoning ordinance may be initiated by way of statutory appeal, see Towle v. Nashua, 106 N.H. 394, 395-96, 212 A.2d 204, 205 (1965), or declaratory judgment, see Gutoski v. Town of Winchester, 114 N.H. 414, 415, 322 A.2d 4, 5 (197.4). A challenge to zoning action as applied to a particular property may be initiated by way of statutory appeal, see, e.g., Narbonne v. Town of Rye, 130 N.H. 70, 72, 534 A.2d 388, 389 (1987), declaratory judgment, see Blue Jay Realty, 132 N.H. at 503-04, 567 A.2d at 193-95, or equitable proceeding, see Soares, 129 N.H. at 314, 529 A.2d at 867.

To have standing to take a direct statutory appeal from a zoning action of a legislative body, the appealing party must have been “aggrieved” by that action. RSA 677:4 (1986); see Shaw v. City of Manchester, 118 N.H. 158, 160, 384 A.2d 491, 493 (1978). Aggrievement is found when the appellant shows a direct definite interest in the outcome of the proceedings. Bee Weeks Restaurant Corp. v. City of Dover, 119 N.H. 541, 544, 404 A.2d 294, 296-97 (1979). The existence of this interest, and the resultant standing to appeal, is a factual determination in each case. Id. at 544-45, 404 A.2d at 296.

To have standing to appeal the validity of the zoning ordinance to the superior court, the plaintiffs had to show that they were “aggrieved” by the town’s decision to adopt the ordinance. RSA 677:4 (1986). Whether the plaintiffs have a sufficient interest in contesting the effect of the ordinance on the availability of low- or moderate-income housing so as to be aggrieved by the alleged exclusionary effect of the ordinance requires a factual examination of the circumstances.

The plaintiffs own land in the mountain and forest district and, therefore, themselves, are not excludedTrpm_±he-area_by the alleged exclusionary effect of the ordinance. Although they allege that the ordinance “makes it financially impracticable for developers to build affordable housing,” they admit that they are not m~ the construction business and have no present~or future intention to provide low- or moderate-income housing on their own land. The plaintiffs’ general interest in a diverse communityjsjaot sufficient to [641]*641sustain their standing on this issue. Warth v. Seldin, 422 U.S. 490, 512-14 (1975).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

McKenzie v. Town of Eaton Zoning Board of Adjustment
917 A.2d 193 (Supreme Court of New Hampshire, 2007)
McKenzie v. TOWN OF EATON ZONING BD.
917 A.2d 193 (Supreme Court of New Hampshire, 2007)
Goldstein v. Town of Bedford
910 A.2d 1158 (Supreme Court of New Hampshire, 2006)
Boulders at Strafford, LLC v. Town of Strafford
903 A.2d 1021 (Supreme Court of New Hampshire, 2006)
Dow v. Town of Effingham
803 A.2d 1059 (Supreme Court of New Hampshire, 2002)
Morgenstern v. Town of Rye
794 A.2d 782 (Supreme Court of New Hampshire, 2002)
Quirk v. Town of New Boston
663 A.2d 1328 (Supreme Court of New Hampshire, 1995)

Cite This Page — Counsel Stack

Bluebook (online)
661 A.2d 759, 139 N.H. 637, 1995 N.H. LEXIS 70, Counsel Stack Legal Research, https://law.counselstack.com/opinion/caspersen-v-town-of-lyme-nh-1995.