Fischer v. New Hampshire State Building Code Review Board

914 A.2d 1234, 154 N.H. 585, 2006 N.H. LEXIS 198
CourtSupreme Court of New Hampshire
DecidedDecember 20, 2006
DocketNo. 2006-155
StatusPublished
Cited by2 cases

This text of 914 A.2d 1234 (Fischer v. New Hampshire State Building Code Review Board) 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
Fischer v. New Hampshire State Building Code Review Board, 914 A.2d 1234, 154 N.H. 585, 2006 N.H. LEXIS 198 (N.H. 2006).

Opinion

HICKS, J.

The petitioner, Walter W. Fischer, Trustee of Walter W. Fischer 1993 Trust, appeals an order of the Superior Court (Fauver, J.) affirming a determination by the New Hampshire State Building Code Review Board (board) that the buildings on nine Durham properties owned by the petitioner do not qualify as two-family dwellings under the State Fire Code (code). We affirm.

The trial court found the following facts. The buildings at issue were constructed as two-family dwellings in 1968. Each unit has three bedrooms, two and one half baths, a kitchen, living room and dining room. The petitioner leases these units to groups of four to six University of New Hampshire students.

Local fire officials have periodically inspected the buildings and, through at least May 2002, have classified them as two-family dwellings. In 2002, a fire occurred in one of the buildings which, according to the respondent board, caused the Durham Fire Department to review the building’s classification and fire safety standing. The Durham Fire Marshal notified the petitioner on July 1,2003, that his buildings were improperly classified under the code. The Durham Fire Marshal then reclassified the buildings as “lodging or rooming houses” and required modifications to the buildings to bring them into compliance with the code.

The petitioner appealed the reclassification to the state fire marshal, who affirmed. That decision was appealed to, and affirmed by, the board. The petitioner then appealed to the superior court, claiming that “the Board improperly determined that subsequently-enacted fire regulations apply to the petitioner’s use of the buildings, even though the petitioner’s [587]*587use has not changed for over 30 years.” The trial court affirmed, except as to a waiver request, which was remanded for evaluation by the fire marshal.

On appeal, the petitioner argues that: (1) reclassification of his buildings “improperly interferes with [his] vested right to use the structures as duplexes”; (2) the code exempts existing uses from new requirements unless there is a change in use; (3) the code “arbitrarily discriminates between related and unrelated individuals”; and (4) the petitioner was denied due process with respect to the regulatory change imposed upon his property.

On appeal of the board’s decision to the superior court, “[t]he burden of proof [is] on the appellant to show that the decision of the board was clearly unreasonable or unlawful.” RSA 155-A:12, II (Supp. 2006). We, in turn, will not disturb the decision of the trial court unless it is unsupported by the evidence or legally erroneous. Cf. Conservation Law Found, v. N.H. Wetlands Council, 150 N.H. 1, 4 (2003).

The plaintiff first argues that his property is “grandfathered” from reclassification to a new occupancy category under the code. He grounds his argument in two provisions of the New Hampshire Constitution: Part I, Article 23, prohibiting retrospective laws, and Part I, Article 12, prohibiting takings of property without just compensation. Specifically, he contends that the reclassification of his property “imposes an incompatible later enacted code requirement on a pre-existing use” and “results in an unconstitutional retrospective application and improperly denies [him] his vested right to continue to use the property as originally classified.”

We first address whether the reclassification at issue is a “retrospective application” of a “later enacted code requirement.” The State asserts that “[t]he Fire Marshal prospectively applied the correct classification under the State Pire Code to the [plaintiff’s] property” and did not impose a penalty “for noncompliance with the Code before that date.” As such, the application of the code in this case is not retrospective. As the Supreme Court of Colorado has noted:

The constitutional ban of retrospective operation does not prevent a city from enacting and enforcing ordinances to protect the health and safety of the community.
The purpose of the constitutional ban of retrospective legislation, like the ban on ex post facto laws, is to prevent the unfairness that results from changing the legal consequences of an act after the act has occurred. In this case, [the plaintiff] was not penalized for violation of the Safety Code for remodeling that was completed prior to enactment of the Safety Code. Application [588]*588of a safety code to buildings that were constructed in a different period under different code requirements does not constitute unconstitutional retrospective legislation.

Van Sickle v. Boyes, 797 P.2d 1267, 1271 (Colo. 1990) (citations omitted).

The plaintiff next argues, relying upon Part I, Article 12, that the reclassification of his property deprives him of a vested right to a nonconforming use. He cites Dugas v. Town of Conway, 125 N.H. 175, 182 (1984) (quotation, brackets and ellipses omitted), for the proposition that “a past use creates vested rights to a similar future use, so that a town may not unreasonably require the discontinuance of a nonconforming use.” Although Dugas was a dispute over attorney’s fees and costs, it arose out of a takings claim, and the above-quoted language appeared in that context. Id. at 181-82. Dugas also recognized, however, that “[Reasonable regulations, aimed at promoting the health, safety and general welfare of the community, may not require compensation.” Id. at 182; see also Loundsbury v. City of Keene, 122 N.H. 1006, 1009 (1982) (“Certainly, a town may proscribe harmful property-related activity without providing compensation.”). As the Washington Supreme Court aptly stated:

There is no such thing as an inherent or vested right to imperil the health or impair the safety of the community____It would be a sad commentary on the law, if municipalities were powerless to compel the adoption of the best methods for protecting life in such cases simply because the confessedly faulty method in use was the method provided by law at the time of its construction.

City of Seattle v. Hinckley, 82 P. 747, 748-49 (Wash. 1905). We concur -with this analysis. Accordingly, we conclude that the plaintiff does not have a vested right to a continued classification as a two-family dwelling for purposes of fire code application.

Our decision in Durham v. White Enterprises, Inc., 115 N.H. 645 (1975), does not alter our conclusion. White Enterprises involved the same duplex properties at issue here. The petitioner and others challenged a 1971 amendment to the Town’s zoning ordinance that limited lawful density of occupancy to no more than four unrelated persons. Id. at 647-48. We observed that the leasing of these units to groups of up to six unrelated individuals was a lawful use under the pre-1971 ordinance and held that the “Fischers have acquired the right to continue this nonconforming use under the ordinance as amended in 1971.” Id. at 651.

Our decision in White Enterprises was not based upon constitutional limitations and vested rights, but upon the terms of the amended zoning ordinance itself, which contained a grandfather clause exempting, under [589]*589certain conditions, “existing lawful use[s]” from the requirements of the amended ordinance. Id. at 650. Thus, White Enterprises

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Bluebook (online)
914 A.2d 1234, 154 N.H. 585, 2006 N.H. LEXIS 198, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fischer-v-new-hampshire-state-building-code-review-board-nh-2006.