Lead Opinion
The defendant, the Town of Eaton Zoning Board of Adjustment (ZBA), and the intervenor, Nancy Burns, appeal a ruling,of the Superior Court (Fauver, J.) that upheld the constitutionality of an ordinance enacted by the Town. We affirm.
The record supports the following. In 1981, the town issued a building permit to Burns, allowing her to place a storage shed fifty-nine feet from the shore of a lake abutting her property. In 1989, the town increased the setback requirements to 125 feet from the shore of the lake, thus making the shed nonconforming with the zoning ordinance. Also in 1989, the town passed Article VI, Section 2 of the Town of Eaton Zoning Ordinance, which stated, in pertinent part:
Any structure damaged by fire, deterioration, or other casualty to the extent of seventy-five (75) per cent or more of the floor area in square feet and is not reconstructed within one (1) year shall constitute discontinuance and abandonment under Article VI, l.a. above and shall not be reconstructed or used except in conformity with this ordinance. The Board of Selectmen may permit the reconstruction or use of such building or structure substantially as it was prior to destruction upon finding that the same will not be detrimental or injurious to the neighborhood. If, for any reason, this permit is not granted such damaged structure shall be removed to clear ground level and put into safe condition within one (1) year following the date of damage. Any time after the expiration of said one (1) year, the Board of Selectmen may cause such removal to be done at the expense of the owner.
Article VI, Section 2 was still in effect on June 2, 2002, when a windstorm caused trees to fall on Burns’ shed and damage it in excess of seventy-five percent of its floor area.
In March 2003, Burns met with the Eaton Selectmen and indicated that she wanted to rebuild her shed. The selectmen told her that “[t]he building does not meet setbacks but is grandfathered so it can be replaced with a building the same size and on the same footprint as before.” By June 2, 2003, however, Burns had not rebuilt her shed or removed the debris left by the storm. On June 4, 2003, Kenneth McKenzie, an abutter and the plaintiff in this case, wrote to the selectmen, requesting that Burns remove the remnants of the shed and the debris on her property as required by Article VI, Section 2. The selectmen notified Burns on August 19, 2003, of
McKenzie appealed the ZBA’s decision to the superior court, arguing that the ordinance provision at issue was clear and unambiguous and that the ZBA failed to properly apply it. McKenzie asserted that the ZBA erred by relying upon the abandonment test established in Lawlor v. Town of Salem,
On appeal, the ZBA and Burns first argue that the trial court erred by interpreting the ZBA’s decision as finding that the ordinance provision was facially unconstitutional under substantive due process. They assert that the ZBA actually found the provision unconstitutional as applied. They argue that, had the trial court properly interpreted the ZBA’s decision, the court would have recognized that the provision would not apply to the shed because RSA 674:19 (1996) prohibits the application of new zoning ordinances to existing buildings. The appellants’ second argument is that a consideration of subjective intent pursuant to the Lawlor test is required by the New Hampshire Constitution when determining abandonment of a nonconforming use. Because the ordinance provision precluded a consideration of intent, the appellants argue, the trial court erred in reversing the ZBA.
I
Before we address the parties’ arguments, we note that we agree with their interpretation that the ordinance provision at issue precludes a consideration of a property owner’s subjective intent when determining whether the owner has abandoned a destroyed nonconforming use or structure. The provision states that a nonconforming use that is sufficiently destroyed and is not rebuilt within a year “shall constitute discontinuance and abandonment” and “shall not be reconstructed or used except in conformity with this ordinance.” It is a general rule of statutory construction that the word “shall” makes enforcement mandatory. In the Matter of Bazemore & Jack,
II
The ZBA and Burns first argue that the ordinance provision should not apply to Burns’ shed because RSA 674:19 prohibits the application of zoning ordinances to buildings in existence prior to the enactment of the ordinance provision. We conclude that this issue is not preserved for our review and therefore decline to address it. See LaMontagne Builders v. Bowman Brook Purchase Group,
The ZBA and Burns next contend that a consideration of intent pursuant to Lawlor is constitutionally required to determine abandonment. On appeal from a trial court’s decision regarding a zoning board of adjustment’s decision, we will uphold the trial court’s decision unless it is unsupported by the evidence or is legally erroneous. Greens v. Town of Deering,
The ZBA and Burns are correct that the Lawlor test for abandonment considers the property owner’s intent to abandon a nonconforming use; however, we established that test in the absence of an applicable ordinance defining abandonment. In this case, an ordinance directly applies and permits the abandonment of a nonconforming use without a consideration of intent. We note that courts of other jurisdictions, as well as legal scholars, have concluded that a consideration of intent to abandon is not necessary when an ordinance defines abandonment without a consideration of intent. See Toys “R” Us v. Silva,
A substantive due process challenge to an ordinance questions the fundamental fairness of the ordinance. Dow v. Town of Effingham,
We ... hold that the rational basis test under the State Constitution requires that legislation be only rationally related to a legitimate governmental interest. We further hold that the rational basis test under the State Constitution contains no inquiry into whether legislation unduly restricts individual rights, and that a least-restrictive-means analysis is not part of this test.
The only manner in which application of the rational basis test will differ depends upon whether one challenges the ordinance on its face or as applied to the property. In a facial challenge to an ordinance, we will not rule the ordinance unconstitutional unless it could not be constitutionally applied in any case. Id. at 642. An as-applied challenge solely questions the constitutionality of the ordinance “in the relationship of the particular
The appellants argue that the ordinance provision is unconstitutional as applied to Burns’ shed. Accordingly, we address whether the provision is rationally related to a legitimate governmental interest under the particular facts of this case. The part of the provision upon which the ZBA and Burns focus is the first sentence, which states that any nonconforming structure that is destroyed to the extent of seventy-five percent or more and is not rebuilt within one year “shall constitute discontinuance and abandonment” and “shall not be reconstructed or used except in conformity with this ordinance.” The plain language of this provision evinces a purpose to discourage the continuation of nonconforming uses. The provision works to reduce nonconforming uses by establishing a time limit on their reconstruction. Those nonconforming uses not reestablished within a year are lost. Thus, the provision reduces the chance that a nonconforming use will be rebuilt. It is well established both in this state and in others that a legitimate purpose of zoning is the reduction and elimination of nonconforming uses. See, e.g., Hurley v. Hollis,
The remaining question is whether the provision, as applied to Burns’ shed, bears a rational relationship to the legitimate goal. By imposing a time limit on Burns’ ability to rebuild her nonconforming shed, the provision reduced the possibility that Burns would reconstruct her nonconforming shed and increased the possibility that the shed, if rebuilt, would be rebuilt in compliance with the zoning ordinance. As Burns did not rebuild her shed within a year, the efficacy of the time limitation is evident. Accordingly, as applied to Burns’ property, the ordinance provision bears a rational relationship to the legitimate goal of reducing nonconforming uses. Based upon the above reasoning, we conclude that the ordinance provision at issue does not violate substantive due process as applied to Burns’ nonconforming shed. Although there may be ways in which the provision could further the goal of reducing nonconforming uses while being less restrictive of Burns’ property rights, we have not considered such alternatives, pursuant to our holding in Boulders,
We finally note that the appellants rely in part upon Dugas v. Town of Conway,
Affirmed.
Concurrence Opinion
concurring specially. Because neither Burns nor the Town expressly argued in their briefs or in the notice of appeal that the trial court should have applied either a takings analysis or a heightened level of review, I concur in the result reached by the majority. However, I write separately to offer some observations about applying the rational basis test under the facts of this case and to suggest an alternative approach.
I
Our jurisprudence involving the relationship between the State Constitution and nonconforming uses derives primarily from Part I, Articles 2 and 12 of the State Constitution. See N.H. CONST. pt. I, arts. 2, 12; see also Town of Salem v. Wickson,
In past cases analyzing nonconforming uses under Articles 2 and 12, we have used broad language that carries constitutional implications. We have implied — if not held — that property owners have fundamental constitutional rights in vested nonconforming uses. Two examples are illustrative.
We agreed with the plaintiffs and held that
[t]he fundamental and inalienable property right that vests in a property owner has as its foundation this State’s Constitution. Part I, article 2 of the New Hampshire Constitution guarantees all persons the right to acquire, possess, and protect property. This guarantee has been deemed so specific as to necessarily limit all subsequent grants of power to deal adversely with it. Similarly, every person has the right to have his enjoyment of property protected. N.H. Const, part I, art. 12. These two constitutional provisions are limitations upon the so-called police power of the State and subdivisions thereof, and nullify arbitrary legislation passed under the guise of that power.
Id. at 885-86 (quotations, citations and brackets omitted). Compare id. with Morgenstern v. Town of Rye,
Later, we applied the types of principles articulated in Grondin in a case involving an ordinance that regulated abandonment of nonconforming uses. See Dugas v. Town of Conway,
The superior court held that the ordinance provision quoted above resulted in an unconstitutional taking. Id. at 179. The superior court, however, denied the plaintiff’s request for attorney’s fees because it did not find that the Town’s enforcement and subsequent defense of the ordinance were frivolous or in bad faith. Id. The plaintiff appealed, and we reversed. Id. at 183.
As in Grondin, our language in Dugas was broad. We held that a town’s power to regulate the use of buildings and land through the enactment of zoning ordinances is circumscribed by Part I, Articles 2 and 12 of the State Constitution, id. at 181-82, and we described the Town’s refusal to issue a permit for the sign as an allegation of interference “with the fundamental property rights of a plaintiff.” Id. at 180 (emphasis added). Therefore, we determined the plaintiff was entitled to attorney’s fees. Id. at 183.
Although, as the majority correctly observes, we were addressing takings claims in both Grondin and Dugas, both cases could reasonably be read to speak of effectuating a taking of property rights that are not only vested but also fundamental under our State Constitution. Moreover, in Dugas, we stated that the regulation at issue there, which is materially similar to the regulation at issue here, interfered with fundamental rights.
Given such precedent, it is unclear whether we ought to “consistently appl[y] the rational basis test” in evaluating substantive due process challenges to local ordinances that regulate vested nonconforming uses without some explanation as to why we do so. See Dow v. Town of Effingham,
Exploring the nature of the right infringed could involve, for example: (1) clarifying our earlier case law by more narrowly and clearly defining the nature of the fundamental rights (vis-á-vis nonconforming uses) protected by Part I, Articles 2 and 12, cf. Robertson v. City and, County of Denver,
II
Ordinance provisions like the one at issue in this appeal more appropriately lend themselves to a takings analysis than a substantive due process one. If a takings claim had been clearly raised in this case, Dugas
A strict one-year “use-it-or-lose-it” ordinance provision is unduly rigid. A nonconforming use may not be repaired for over a year for any number of reasons, none of which suggest that it should be deemed abandoned. For example, a soldier may be deployed overseas for over a year and have no way of knowing that there has been property damage or that repairs need to be made; a family business may have difficulty in obtaining financing to rebuild; or some type of natural disaster or catastrophe could make rebuilding within a year impractical. To the extent an ordinance is read to contain a strict one-year “use-it-or-lose-it” provision, it would fail to account for such reasonable contingencies. Moreover, under our precedent, the ordinance likely would result in a taking. See, e.g., Dugas,
In City of Minot, the North Dakota Supreme Court considered whether an ordinance dealing with abandonment of nonconforming uses was confiscatory and discussed three approaches to analyzing such provisions. The first approach is “that there must be shown an intent to abandon a nonconforming use before its resumption can be prohibited; this despite the presence of an ordinance containing a specified period of discontinuance designed to prevent resumption of a nonconforming use.” City of Minot,
The North Dakota Supreme Court’s reasoning is persuasive as to why the third approach would be not only the most practical, but also the most respectful of land ownership rights, at least as we have articulated them. See, e.g., Dugas,
If the third approach were applied in the present case, Article VI, Section 2 of the Town of Eaton Zoning Ordinance would have created a presumption that Burns’ nonuse of her shed rendered it an abandoned nonconforming use. Then, the ZBA would have been required to permit Burns to attempt to overcome that presumption by offering facts or argument that demonstrated that the cessation of use was beyond her control. I concur in the result reached by the majority because I do not read its opinion as foreclosing the adoption of such an approach under more compelling facts where the takings issue is squarely raised.