Webster v. Town of Candia

778 A.2d 402, 146 N.H. 430, 2001 N.H. LEXIS 91
CourtSupreme Court of New Hampshire
DecidedMay 21, 2001
DocketNos. 99-046 00-348
StatusPublished
Cited by13 cases

This text of 778 A.2d 402 (Webster v. Town of Candia) 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
Webster v. Town of Candia, 778 A.2d 402, 146 N.H. 430, 2001 N.H. LEXIS 91 (N.H. 2001).

Opinion

DALIANIS, J.

In this consolidated appeal, plaintiffs Kenneth Webster and Margaret Demos as Trustees of the Kenneth Webster Trust, and Winthrop Sargeant (Webster plaintiffs), appeal the Superior Court’s (Galway, J.) order affirming the decision of the Town of Candía Planning Board (planning board) denying their application to remove trees from Libbee Road, a designated scenic road. Plaintiff Julee Sanderson, as Trustee of Candía Rangeway Realty Trust (Sanderson), appeals the Superior Court’s (Abramsom, J.) order affirming the planning board’s decision denying her application to remove trees from Libbee Road. Sanderson also appeals the Superior Court’s (Coffey, J.) order denying her motion for reconsideration. We affirm.

In June 1998, the Webster plaintiffs requested planning board consent to cut 256 trees on Libbee Road. At the time, they owned approximately 260 acres of land situated between Libbee and Baker Roads on which they planned to develop a cluster subdivision. The Webster plaintiffs sought to remove trees so that Libbee Road could be reclassified from a class VI to a class V highway, as required by the town’s cluster subdivision ordinance. On August 5, 1998, following a hearing, the planning board denied the Webster plaintiffs’ request.

The Webster plaintiffs eventually sold their land to Sanderson. In March 1999, Sanderson submitted a plan to cut approximately twenty-five trees on Libbee Road. The planning board denied this request in September 1999. Although the Webster plaintiffs no longer own the land, Sanderson has pursued their claims on appeal.

“[W]e will uphold the trial court unless its decision is not supported by the evidence or is legally erroneous.” Mt. Valley Mall Assocs. v. Municipality of Conway, 144 N.H. 642, 647 (2000) (quotation omitted). “We look to whether a reasonable person could [434]*434have reached the same decision as the trial court based on the evidence before it.” Id. (quotation omitted).

Sanderson argues that because the trial court’s order affirming the planning board’s September 1, 1999 decision was based solely upon the record, a “broade[r]” standard of review applies. To the contrary, we use the same standard of review, regardless of whether the appellate record consists only of the planning board’s certified record. See id. at 646-47.

I. Constitutionality of Scenic Road Statute

The plaintiffs assert that RSA 231:158 (1993), prohibiting cutting trees or destroying stone walls on designated scenic roads absent permission from the planning board (or other “official municipal body”), is impermissibly vague and thus void under the New Hampshire Constitution. Because the constitutionality of a statute involves a question of law, we review the superior court’s determination de novo. See id. at 648.

“Due process requires that a statute proscribing conduct not be so vague as to fail to give a person of ordinary intelligence a reasonable opportunity to know what is prohibited.” In re Justin D., 144 N.H. 450, 453 (1999) (quotation omitted). “The necessary specificity . . . need not be contained in the statute itself, but rather, the statute in question may be read in the context of related statutes, prior decisions, or generally accepted usage.” Id. at 453-54 (quotation omitted). “The party challenging the statute as void for vagueness bears a heavy burden of proof in view of the strong presumption of a statute’s constitutionality.” Id. at 454 (quotation omitted).

RSA 231:158 provides, in pertinent part:

Upon a road being designated as a scenic road as provided in RSA 231:157, any repair, maintenance, reconstruction, or paving work done with respect thereto by the state or municipality . . . shall not involve the cutting, damage or removal of trees [of a particular circumference], or the tearing down or destruction of stone walls, or portions thereof, except with the prior written consent of the planning board, or any other official municipal body designated by the meeting [of the town voters] to implement the provisions of this subdivision ....

RSA 231:158, II. Unless certain exceptions apply, the statute requires the planning board to conduct a duly noticed public hearing on any plan to remove trees or stone walls from a designated scenic road. Id.

[435]*435This statute is sufficiently clear to warn the average person of the prohibited conduct (cutting trees of a specific circumference or destroying stone walls on designated scenic roads) and that if he or she wishes to engage in the prohibited activity, he or she must first obtain written planning board consent. We hold therefore that RSA 231:158 is not unconstitutionally vague. See Asselin v. Town of Conway, 137 N.H. 368, 371 (1993).

The plaintiffs argue that the statute is void because it does not apprise an applicant of the standards that the planning board, or other official municipal body, will use when reviewing plans to cut trees or destroy stone walls on scenic roads. “[A law] is not necessarily vague because it does not precisely apprise [an applicant] of the standards by which an administrative board will make its decision.” Town of Freedom v. Gillespie, 120 N.H. 576, 580 (1980). In Gillespie, a municipal ordinance gave the local planning board power to approve plans for constructing or repairing septic systems and to grant variances. Id. at 578. The ordinance did not specify the standards by which the planning board would assess variance requests. Id. at 580. Nevertheless, we upheld it, holding it implied that the planning board would use the standards for granting variances contained in its subdivision regulations. Id.

We similarly decline to find RSA 231:158 vague because it does not specify the standards the planning board will use when reviewing plans for tree cutting or stone wall destruction on designated scenic roads. We find it implied that the planning board will exercise its discretion consistent with the purpose of the road’s scenic designation. See id.; cf. Derry Sand & Gravel, Inc. v. Town of Londonderry, 121 N.H. 501, 505-06 (1981) (ordinance permitting selectmen to issue private dump or junk yard licenses upon “good cause and sufficient reason” not vague; given ordinance’s stated purpose, “good cause and sufficient reason” are circumstances that provide for “orderly” and “sanitary” disposal of garbage).

The warrant articles by which the town voted to designate Libbee Road as scenic specify that the purpose of so doing was to “protect[] and enhanc[e] . . . the scenic beauty of Candia.” See also N.H.S. JOUR. 708 (1971) (purpose of scenic road statute is to “encourage the tourist attractiveness of our scenic roads in our towns and . . . permit the retention of trees and stone walls so characteristic of our New England scenery”). In context, then, RSA 231:158 informs a developer that any plan to cut trees or remove stone walls from a designated scenic road must not destroy the “scenic beauty” of the [436]*436road. This is sufficient notice to developers of the relevant standards.

The legislature would have been hard pressed to define the concept of “scenic beauty” more specifically. See Finks v. Maine State Highway Commission, 328 A.2d 791, 796 (Me. 1974).

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

Related

Mark Brighton & a. v. City of Portsmouth
Supreme Court of New Hampshire, 2020
Bleiler v. Chief, Dover Police Department
927 A.2d 1216 (Supreme Court of New Hampshire, 2007)
Pennichuck Corp. v. City of Nashua
886 A.2d 1014 (Supreme Court of New Hampshire, 2005)
Broom v. Continental Casualty Co.
887 A.2d 1128 (Supreme Court of New Hampshire, 2005)
Taylor v. Town of Plaistow
872 A.2d 769 (Supreme Court of New Hampshire, 2005)
Hughes v. New Hampshire Division of Aeronautics
871 A.2d 18 (Supreme Court of New Hampshire, 2005)
Arcidi v. Town of Rye
846 A.2d 535 (Supreme Court of New Hampshire, 2004)
State v. Bortner
841 A.2d 80 (Supreme Court of New Hampshire, 2004)
Bayson Properties, Inc. v. City of Lebanon
834 A.2d 202 (Supreme Court of New Hampshire, 2003)
In re Breault
821 A.2d 1118 (Supreme Court of New Hampshire, 2003)
Robinson v. Town of Hudson
821 A.2d 959 (Supreme Court of New Hampshire, 2003)
Dow v. Town of Effingham
803 A.2d 1059 (Supreme Court of New Hampshire, 2002)

Cite This Page — Counsel Stack

Bluebook (online)
778 A.2d 402, 146 N.H. 430, 2001 N.H. LEXIS 91, Counsel Stack Legal Research, https://law.counselstack.com/opinion/webster-v-town-of-candia-nh-2001.