The private corporate defendant appeals from an order of the Superior Court {Smith, J.), which enjoined construction of a shed intended for use in connection with рrivate recreational activities, and required removal of the partially completed structure as having been built in violation of the zoning ordinance of the defendant Town of Campton. We vacate and remand.
The defendant H.D. Riders Motorcycle Club, Inc. (the club), a non-profit corporation with members having a common interest in motorсycles, owns 14.5 acres of land in Campton, abutting land of the plaintiff Ram Sinha and neighboring that of the plaintiff Catherine Barton. In October, 1985, the Campton selectmen issued a permit authorizing the club to build a shed on the property. After the club had obtained building materials and had begun construction of a road across the site, on which it had by then placed a рrivy, Barton appealed the issuance of the building permit to the town’s
The club’s appeal from the injunction and removal order turns on relatively simple issuеs. We find nothing persuasive in the club’s threshold argument that the record is devoid of any evidence that either plaintiff was “specially damaged” by the alleged violation of the ordinance, a statutory condition of a property owner’s standing to seek injunctions or abatement orders to cure a zoning violation. See RSA 676:15. This requirement mirrors the familiar burden to plead and prove special damages as a prerequisite to equitable relief, when sought by a private party to remedy what would otherwise be treated solely as a public nuisance, see Urie v. Franconia Paper Co.,
There is merit, however, in the club’s further claim that the relevant provision of the zoning ordinance may not be construed so as to bar the club’s recreational use of its land. The provision in question reads that
“A. . . . The following provision[ ] will apply to the whole town.
4. Public parks, golf courses, and other recreational uses are permitted throughout the Town of Campton.”
Campton Zоning Ordinance, IV.A.4. This ordinance is in “permissive” form, having the legal effect of prohibiting uses for which it does not provide permission, see Treisman v. Kamen,
It is not, оf course, clear whether “public” is meant to modify not only “parks,” but “golf courses and other recreational uses,” as well. Thus, either all recreational uses are intended to be permitted, or only “public” recreation is meant to be allowed. In the latter case, given the permissive nature of the ordinance, it would follow that all private recreational use of land was prohibited where it could not be justified as an accessory use of property used principally for some other, permitted purрose, such as personal residence. See Town of Salem v. Durrett,
The ambiguity is not, however, a source of much comfort to the town in this case. If the ordinance should be construed so that all recreational uses are permitted, then it would not prohibit the club’s use of its land for private recreation; if it should be construed to prohibit all non-acсessory private recreational activity, there would be, on the face of it, a basis in the ordinance for prohibiting the club’s intended use, but the interpretive process would have produced an absurd result, inasmuch as any private recreational use of undeveloped land would become a zoning violation. Cf. State v. Kay,
The plaintiffs and the town seek to escape this dilemma by arguing in effect that the trial court correctly chose a third way to view articlе IV.A.4. The court found that the ordinance was “sufficiently clear to inform an individual that a large-scale, privately run, private campground of the type proposed . . . was fоrbidden.” Neither the plaintiffs nor the town, however, have pointed to any provision of the ordinance that might be read to support the court’s judgment, and the club naturally rejoins thаt if the ordinance is to be understood as prohibiting some private recreational uses, which the club describes as “public-oriented,” but
“Generally, a municipal ordinance must be framed in terms sufficiеntly clear, definite and certain . . . that an average [person] after reading it will understand when he is violating its provisions.” Town of Freedom v. Gillespie,
What is significant about the ordinance in this case, however, is its apparent failure to indicate by any textual hint that different private recreational uses may be subject to different treatments. We have not been cited even to a qualitative word or conclusory phrase suggesting that privately-run recreational uses on a large scale are forbidden, whereas others are not. Although plaintiffs’ counsel in his brief has described the intent underlying article IV.A.4 as being the regulation of “private property to the extent that a legitimate public purpose would be served,” the discernment of a “legitimate public purpose” was, on this view, left entirely tо enforcement authorities without so much as an explicit indication that a line could be drawn. Since any such construction of the ordinance would represent the antithesis of the rule of law, we must reject the interpretation and again face the alternatives of complete freedom for recreational use or complеte prohibition of non-accessory private recreational use. To avoid the absurd, we must adopt the former construction and vacate the injunction. Given the stаte of the record, we intimate no opinion about what the superior court should do upon remand, beyond dismissing the claim of zoning violation.
Vacated and remanded.
All concurred.