Treisman v. Town of Bedford

563 A.2d 786, 132 N.H. 54, 1989 N.H. LEXIS 75
CourtSupreme Court of New Hampshire
DecidedAugust 9, 1989
DocketNo. 87-096; No. 88-441
StatusPublished
Cited by6 cases

This text of 563 A.2d 786 (Treisman v. Town of Bedford) 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
Treisman v. Town of Bedford, 563 A.2d 786, 132 N.H. 54, 1989 N.H. LEXIS 75 (N.H. 1989).

Opinion

Johnson, J.

This consolidated appeal presents various challenges to superior court rulings in two zoning actions. Both actions arise from plaintiff Robert Treisman’s objections to defendant Dean Kamen’s construction of a heliport and use and storage of a helicopter at his property in Bedford. In case No. 87-096, defendants Kamen and the Town of Bedford appeal from a decision of the Superior Court {McHugh, J.) reversing the Bedford Zoning Board of Adjustment’s decision to grant Kamen a variance allowing the disputed uses. In case No. 88-441, the defendants appeal from a decision of the Superior Court {Goode, J.) invalidating a zoning amendment that permitted helicopter use in Bedford’s residential and agricultural zones subject to certain conditions. Plaintiff Treisman has also filed a cross-appeal in this second case, challenging two of the court’s rulings against him. For reasons that follow, we reverse the decision in No. 88-441, and therefore need not rule on defendants’ appeal in No. 87-096.

[57]*57The following facts are not in dispute. Treisman and Kamen own and reside on abutting properties in Bedford. During 1981 and 1982, after gaining the approval of various regulatory authorities and abutting landowners, Kamen built a heliport on his property and began to use a helicopter to commute to work. In 1982, Treisman, the only abutter who had not indicated his assent to these uses, filed suit to enjoin them. In Treisman’s ultimate appeal to this court, we held that the uses in question were permissible under the Bedford ordinance only if they came within the common law definition of accessory use and remanded to the trial court for that determination. Treisman v. Kamen, 126 N.H. 372, 375-78, 493 A.2d 466, 469-72 (1985). We later summarily affirmed the trial court’s decision that Kamen’s heliport was not an accessory use under the common law definition and that it was therefore prohibited by the Bedford ordinance. (Order issued June 4, 1987 in case No. 86-500.)

In August 1985, Kamen applied to the Bedford Zoning Board of Adjustment for a variance to permit the use in question, and the board granted the variance the following month. After the board denied Treisman’s motion for reconsideration, he appealed its decision to the superior court, which ultimately held that the variance had been improperly granted because there was no evidence that its denial would result in unnecessary hardship.

Before the superior court’s final decision on the variance, Kamen petitioned the town to amend its zoning ordinance to permit the storage and use of helicopters in its residential and agricultural districts as an accessory use. The proposed ordinance provided:

“Accessory Uses — Residents in the Residential and Agricultural Districts shall be allowed to house and operate a helicopter at a residence located in the Residential and Agricultural District if all the following criteria have been met by the resident:
(1) The resident’s lot upon which the helicopter is housed shall consist of at least five (5) acres.
(2) Prior to the housing of a helicopter at a residence pursuant to this Section C, the New Hampshire Aeronautics Commission and the Federal Aviation Administration shall have approved of the resident’s lot for a private non-commercial helipad. The New Hampshire Aeronautics Commission and the Federal Aviation Administration shall have determined that the site and flight path are in compliance with all applicable governmental regulations and that no safety hazards exist as long as established flight patterns are followed.
[58]*58(3) The helicopter shall be used for non-commercial purposes only.
(4) The helicopter shall be made available to assist Bedford law enforcement personnel and the Bedford Fire Department when prudent and necessary.
(5) The helicopter shall be flown such that it will be at a normal operating altitude before flying directly over any residence.
(6) The area where the helicopter is housed shall be appropriately screened such that the helicopter is not readily visible by the abutters.”

The Bedford Planning Board indicated that it approved of the helicopter amendment, and voters passed it at the town meeting on March 10, 1987, by a vote of 1327 to 929. Before that date, Treisman filed a timely protest petition pursuant to RSA 675:5, 1(b), seeking to require passage by a two-thirds majority. The Bedford Selectmen denied this petition on grounds that it did not comply with statutory requirements. Following the selectmen’s further denial of Treisman’s motion for a rehearing, he appealed to the superior court, which held the amendment invalid for a number of reasons.

The court specifically held that the amendment was invalid because: (1) the town had no power to create an accessory use where that use was not within the common law definition; (2) the amendment effected spot zoning; (3) the Bedford Planning Board had not sufficiently complied with statutory requirements for adoption of a master plan and could therefore adopt neither a valid zoning ordinance nor a valid zoning amendment; (4) a circular the planning board distributed to voters before the 1987 town meeting described the effect of the proposed amendment in a misleading way; and (5) the requirement that owners make helicopters available to assist Bedford’s law enforcement and fire officials was arbitrary and unreasonable. The court ruled against Treisman on, among others, two further questions now at issue on cross-appeal; it agreed with the planning board that the protest petition did not meet statutory requirements and that the amendment did not violate the airport zoning provisions of RSA chapter 424. On appeal, each party challenges those rulings contrary to its position. We address each ruling in turn below.

[59]*59I. Power to Create Accessory Use

The superior court erred as a matter of law in holding that Bedford voters could not amend the town’s zoning ordinance to allow the storage and operation of helicopters as an accessory use in the residential and agricultural zones. Because a zoning ordinance cannot specifically provide for every lawful use, the rule of accessory use recognizes that owners may employ land in some ways the ordinance does not expressly permit. Town of Salem v. Durrett, 125 N.H. 29, 32, 480 A.2d 9, 10 (1984). A zoning ordinance itself sometimes defines “accessory use,” but where the ordinance is silent courts apply the common law definition. Id. at 32, 480 A.2d at 10-11.

As the superior court correctly stated, all accessory uses, whether defined by ordinance or by common law, must share one characteristic: each must be a subordinate rather than a principal use of the property. Town of Salem v. Durrett, 125 N.H. at 32, 480 A.2d at 11. In this case, however, the superior court further held that any accessory use must be “customarily incident to the principle (sic) use, and so necessary or commonly to be expected in conjunction therewith that it cannot be supposed the ordinance was intended to prevent it.”

The requirement of subordinate use goes to the very essence of a use that is “accessory,” and any use so categorized must fulfill it.

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Bluebook (online)
563 A.2d 786, 132 N.H. 54, 1989 N.H. LEXIS 75, Counsel Stack Legal Research, https://law.counselstack.com/opinion/treisman-v-town-of-bedford-nh-1989.