Stoney-Brook Development Corp. v. Town of Fremont

474 A.2d 561, 124 N.H. 583, 1984 N.H. LEXIS 348
CourtSupreme Court of New Hampshire
DecidedMarch 2, 1984
DocketNo. 82-536
StatusPublished
Cited by7 cases

This text of 474 A.2d 561 (Stoney-Brook Development Corp. v. Town of Fremont) 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
Stoney-Brook Development Corp. v. Town of Fremont, 474 A.2d 561, 124 N.H. 583, 1984 N.H. LEXIS 348 (N.H. 1984).

Opinion

Brock, J.

On November 2, 1982, a Master (R. Peter Shapiro, Esq.) found that the “Comprehensive Community Plan” of the defendant, Town of Fremont, is not a legally sufficient master plan [586]*586or capital improvement program to support the adoption of a growth control ordinance enacted under RS'A 31:62-a (Supp. 1983) (repealed by Laws 1983, 447:5, I) (current version at RSA 674:22 (Supp. 1983)). The master further recommended that the town’s growth control ordinance (Article IV-A of the Fremont Zoning Ordinance) should be deemed illegal and unenforceable. The Superior Court (Wyman, J.) approved the master’s report on November 4, 1982, and Fremont appealed. For the reasons which follow, we affirm.

In 1975, Fremont enacted Article IV-A of its zoning ordinance which states in pertinent part:

“Section 1. The number of building permits to be issued for new dwellings shall be limited annually to 3% of the number of dwellings in the town at the start of each calendar year.
Section 2. These permits shall be issued based on date of application, except that not more than three (3) permits may be issued per developer or within a subdivision in a calender [sic] year.”

The plaintiff, Stoney-Brook Development Corporation (Stoney-Brook), owns a large tract of land in Fremont, which has been subdivided into fifty-two lots. In 1979, Stoney-Brook applied for four building permits but was issued only three permits, based upon the limitation imposed by Article IV-A of the zoning ordinance. In December 1979, Stoney-Brook filed a petition for declaratory and injunctive relief in the superior court, alleging that Article IV-A was illegal and unenforceable and requesting a court order requiring Fremont to issue the additional permit.

In 1980, the town’s planning board adopted a “Comprehensive Community Plan.” The plan assumed “a fairly constant growth rate of 3% or less per year based on existing growth regulation.” In June 1981, Stoney-Brook moved to amend its petition for declaratory and injunctive relief and alleged that the community plan was an insufficient foundation for Fremont’s growth control ordinance.

We have previously addressed the issue of growth limitations and controls in Beck v. Town of Raymond, 118 N.H. 793, 394 A.2d 847 (1978). We stated there that growth controls must be “reasonable and nondiscriminatory,” “should be the product of careful study and should be reexamined constantly with a view toward relaxing or ending them,” should be accompanied by “[g]ood faith efforts to increase the capacity of municipal services,” and “must not be parochial; that is, controls must not be imposed simply to exclude [587]*587outsiders, [citations omitted], especially outsiders of any disadvantaged social or economic group.” Id. at 800-01, 394 A.2d at 852.

Subsequent to our decision in Beck, the legislature enacted RSA 31:62-a (Supp. 1983) (repealed by Laws 1983, 447:5, I) (current version at RSA 674:22 (Supp, 1983)). Fremont argues that this statute must be interpreted as superseding and eliminating these requirements of a valid growth control ordinance which we outlined in Beck. The statute provides:

“Growth Management; Timing of Development. The legislative body of a city or town may further exercise the powers granted under this subdivision to regulate and control the timing of development. Any ordinance imposing such a control may be adopted only after preparation and adoption by the planning board of a master plan and capital improvement program and shall be based upon a growth management process intended to assess and balance community development needs and consider regional development needs.”

A member of the House Committee on Municipal and County Government, in reporting on the bill which became RSA 31:62-a (Supp. 1983), and RSA 81:62-b (Supp. 1983) (entitled Growth Management; Interim Regulation), stated: “This bill is the result of a lawsuit in Raymond and should eliminate further legal action caused by moratoria.” N.H.H.R. Jour. 843 (1979). Fremont argues that this statement is evidence that RSA 31:62-a (Supp. 1983) was intended to protect local growth control ordinances from legal challenge; but nothing in the language of this statute contradicts or is inconsistent with our opinion in Beck.

In Beck, we held that a growth control ordinance, enacted as a general ordinance, was not a valid exercise of the police power delegated to a municipality pursuant to RSA 31:89. Beck v. Town of Raymond, 118 N.H. at 795, 394 A.2d at 849. We upheld Raymond’s zoning ordinance only as “a temporary emergency measure to allow the town two years at most to develop a master or comprehensive plan for phasing in growth and providing therefor.” Id. at 801, 394 A.2d at 852. RSA 31:62-a (Supp. 1983), enacted in response to Beck, appears only to provide a. statutory framework consistent with Beck for phasing in growth in a manner which would withstand legal challenge. Accordingly, the master correctly concluded that he should consider whether the Town of Fremont’s community plan and its growth control ordinance complied with RSA 31:62-a (Supp. 1983) in light of our earlier decision in Beck.

[588]*588Although municipal ordinances carry with them a presumption of validity, Town of Nottingham v. Harvey, 120 N.H. 889, 892, 424 A.2d 1125, 1127 (1980); Rochester v. Barcomb, 103 N.H. 247, 253, 169 A.2d 281, 285 (1961), we believe the record supports the master’s finding that Stoney-Brook sustained its burden of showing that Article IV-A of the Fremont Zoning Ordinance is illegal and unenforceable. Further, because the community plan assumed a growth rate based on this invalid growth ordinance, the community plan is, itself, invalid.

The crux of Stoney-Brook’s argument is that the 3% growth rate was not the normal, unrestricted growth rate, but was an arbitrary figure when it was selected in 1975 as the standard for the limitation of new dwelling building permits. Indeed, a 1975 member of the planning board testified that, while population trends were discussed at that time, a figure of 3% was “taken out of a hat” because “that seemed to be the normal growth at that time.” RSA 31:62-a (Supp. 1983) requires “a growth management process intended to assess and balance community development needs.” (Emphasis added.) Selection of an apparently arbitrary figure that represents the rate of growth at a particular point in time hardly constitutes the assessment of community development needs and “careful study” contemplated by either Beck or the statute. See Beck v. Town of Raymond, 118 N.H. at 800, 394 A.2d at 852.

In 1980, the community plan perpetuated the growth rate at this arbitrary figure.

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474 A.2d 561, 124 N.H. 583, 1984 N.H. LEXIS 348, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stoney-brook-development-corp-v-town-of-fremont-nh-1984.