Quirk v. Town of New Boston

663 A.2d 1328, 140 N.H. 124, 1995 N.H. LEXIS 116
CourtSupreme Court of New Hampshire
DecidedAugust 14, 1995
DocketNo. 94-100
StatusPublished
Cited by25 cases

This text of 663 A.2d 1328 (Quirk v. Town of New Boston) 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
Quirk v. Town of New Boston, 663 A.2d 1328, 140 N.H. 124, 1995 N.H. LEXIS 116 (N.H. 1995).

Opinion

JOHNSON, J.

Both the defendant, the Town of New Boston (town), and the plaintiff, Thomas E Quirk, appeal from a decision of the Superior Court (Hampsey, J.) involving the town’s zoning ordinance and the plaintiff’s campground. The court rejected the plaintiff’s arguments that the town’s zoning ordinance is unreasonable, effects a taking, denies him equal protection of the law, and interferes with his vested property rights. The court also rejected the town’s request for attorney’s fees but granted its request for costs. We affirm.

The plaintiff purchased his 85.77-acre campground in 1979 for $125,000. The prior owner had built twenty-nine campsites on the property after receiving the required State approval. Without seeking State or local authorization, the plaintiff further developed the land. Nine years later, the campground had approximately 130 campsites, each with water, sewer, and electrical hookups, and several tent sites with limited utility hookups. In April 1987, the New Hampshire Water Supply and Follution Control Commission inspected the plaintiff’s property and discovered the unapproved expansion of the campground as well as extensive sewage violations. The commission ordered the plaintiff to either comply with State regulations or cease operating his campground.

In 1987 and 1988, the plaintiff borrowed money largely to finance the campground improvements required by the commission’s order. He did not wait for State or local approval of his improvement plans before obtaining the loans and making some of the expenditures.

The trial court found that the plaintiff did not file a formal application for subdivision approval until January 23, 1989. In this [128]*128application, he requested permission to maintain 167 campsites and twenty-three tent sites. On May 15, 1989, the State approved only 123 campsites and twenty tent sites. Between April 1989 and August 1990, the State also approved the plaintiff’s construction and operation of four septic systems.

' In March 1989, the town enacted the zoning amendment that is at issue in this case: a “buffer zone” requirement for recreational campgrounds. The buffer zone is comparable to a setback line; it prevents certain land development within a minimum distance of campground perimeters. The first version of the amendment required a 300-foot buffer, but the town later decreased the buffer to 200 feet. The ordinance prohibits buildings, recreational facilities, trailer spaces, campsites, and tent sites in the buffer zone. The inner 100 feet may be used for any other purpose, including underground utilities. Natural vegetation must be maintained on the outer 100 feet.

In 1990, the town rejected the plaintiff’s applications for a building permit and a variance for the construction of a new recreation hall that would encroach on the buffer zone. The plaintiff then filed suit against the town. He claimed that the buffer zone requirement is unreasonable, effects an unconstitutional taking of his property, violates his right to equal protection, and impairs his vested right to develop the land within his campground’s buffer zone. On December 13, 1993, after a week-long trial, the superior court ruled in favor of the town. Later, the court granted the town’s motion for costs but denied its motion for attorney’s fees.

“On appeal, we sustain the findings and rulings of the trial court unless they are lacking in evidential support or tainted by error of law.” Southern N.H. Water Co. v. Town of Hudson, 139 N.H. 139, 141, 649 A.2d 847, 848 (1994) (quotation and brackets omitted). In the proceedings before the trial court, the plaintiff relied solely on the State Constitution. Because this court will not consider on appeal issues or arguments not raised below, Perron v. City of Somersworth, 131 N.H. 303, 305, 553 A.2d 283, 284 (1988), we will not consider the Federal Constitution in our examination and will cite law from other jurisdictions only to aid our analysis.

I. Due Process

The plaintiff argues that the buffer zone requirement is arbitrary and unreasonable because: (1) its enactment was first suggested by a town selectman, Willard Dodge, and did not issue from formal investigation or research regarding campgrounds; and (2) it was intended primarily to address anticipated problems that might arise' [129]*129with the development of new campgrounds. We find the buffer zone requirement to be reasonable.

Substantive due process requires that zoning restrictions be rationally related to legitimate town goals. See Asselin v. Town of Conway, 137 N.H. 368, 372, 628 A.2d 247, 250 (1993). In Caspersen v. Town of Lyme, 139 N.H. 637, 646, 661 A.2d 759, 766 (decided June 27, 1995), Chief Justice Brock opined in a special concurrence that, “given an appropriate occasion,” we should review this standard. Because the parties before us have not briefed or argued this issue, we are not faced with such an occasion at this time; hence, we leave for another day a consideration of the proper standard.

In arriving at a decision to enact a regulation, a town may properly consider the town selectmen’s and planning board members’ “knowledge concerning such factors as traffic conditions, surrounding uses, etc., resulting from their familiarity with the area involved.” Vannah v. Bedford, 111 N.H. 105, 108, 276 A.2d 253, 255 (1971) (zoning board of adjustment decision regarding variance), overruled on other grounds by Cook v. Town of Sanbornton, 118 N.H. 668, 671, 392 A.2d 1201, 1203 (1978). A town must consider current as well as anticipated realities when enacting zoning regulations. Cf. Patenaude v. Town of Meredith, 118 N.H. 616, 621, 392 A.2d 582, 585 (1978) (planning board approval of subdivision plan). In reviewing the reasonableness of a particular zoning provision, we are mindful that zoning is a legislative function, Britton v. Town of Chester, 134 N.H. 434, 441, 595 A.2d 492, 496 (1991), and “[j]udging the wisdom of the legislation ... is not the function of this court.” Sedgewiek v. City of Dover, 122 N.H. 193, 198, 444 A.2d 490, 492 (1982). “Given the presumption that zoning ordinances are valid, we consider whether the evidence supports the trial court’s decision upholding the provision.” Asselin, 137 N.H. at 372, 628 A.2d at 250 (citation omitted).

The trial court found that before proposing a buffer zone requirement, Selectman Dodge “set forth his own camping experience, stating that campgrounds tend to be noisy since they are ‘recreational destinations’ with activities running well into the evening. He also described their intensity of land use; i.e. the concentration of campsites within a relatively small area.” The town’s decision to adopt Selectman Dodge’s suggestion was not arbitrary, but rather came after serious deliberation. Minutes of planning board meetings reveal that the planning board members engaged in “much discussion . . .

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Bluebook (online)
663 A.2d 1328, 140 N.H. 124, 1995 N.H. LEXIS 116, Counsel Stack Legal Research, https://law.counselstack.com/opinion/quirk-v-town-of-new-boston-nh-1995.