Lead Opinion
Pеtition for a declaratory judgment under RSA 491:22 brought against the town of Meredith by Nelson B. Piper, Jr., Nelmy Leasing, Inc., and PI Enterprises, Inc., as property owners and taxpayers, seeking a determination that a town ordinance regulating building heights is void, unconstitutional, without force of law, and inapplicable to plaintiffs.
The matter was heard by a Master (Jack B. Middleton, Esq.) who viewed the premises. The master made certain findings and rulings and recommended that the ordinance in question be declared invalid and withоut force of law. The master’s report was approved by Johnson, J. who entered a decree in accordance with the recommendation. The objections of the parties to the master’s report were overruled and their exceptions thereto and defendant’s exception to the court’s decree were reserved and transferred.
On September 6, 1968, the plaintiff, Nelmy Leasing, Inc., purchased from Meredith Yacht Club, Inc., for the sum of $ 160,000, a tract of land and buildings located on the shore of Lake Winnipesaukee in Meredith Bay. On the same day it leased the premises for a term of 99 years to plaintiff, PI Enterprises, Inc., to erect thereon eight nine-story condominium towers, now changed to five nine-story towers containing a total of 85 condominium units. Both plaintiff corporations are wholly owned by plaintiff Nelson B. Piper, Jr. and his associate, Myles L. Israel.
On September 23, 1968, more than 100 qualified voters of
“In pursuance of authority conferred by RSA 31:60, and for the purpose of promoting the health, safety and general welfare of the community, and to secure safety from fires, panic and other dangers, to provide adequate light and air, to prevent the overcrowding of land, to avoid undue concentration of population and to facilitate the adequate provision of water, sewerage and other public requirements, it is hеreby enacted, that
“ No buildings shall be erected in the Town of Meredith exceeding five stories or seventy-five feet in height; and no building shall be erected within fifty feet of any other building or within one hundred feet of the shore of any lake in Meredith, exceeding three stories or forty-five feet in height. ”
On the next day, September 24, 1968, the Selectmen called the special meeting requested in the petition for October 9, 1968 and duly posted and published the required warrant. RSA Ch. 39.
On October 4, 1968, plaintiffs filed in superior cоurt a petition for injunction praying that the town be temporarily enjoined from holding the proposed town meeting and permanently enjoined from holding any future town meeting to act on the proposed ordinance until all necessary statutory prerequisites of a zoning ordinance had been met. The Trial Court (Loughlin, J. ) refused a temporary injunction but ruled “that any action taken by the petitionee [town] is violative of the requirements of Chapter 31, Sections 60-66 and is not valid under the generаl police power. ” JOn appeal this court held on March 20, 1969, that the above ruling constituted an advisory opinion which is not within the jurisdiction of the superior court. Piper v. Meredith,
The master found that “On October 9, 1968, the Special Town Meeting was held. Town counsel, Judge John Ramsey, attempted to explain to the citizens what had transpired with regard to the Petition for Injunction and attempted to answer questions posed by those present at the meeting. There is a dispute between the parties as to the action eventually taken at the meeting. The Plaintiffs say that the only action taken . . . was an expression of opinion. The Defendant claims that there was an overwhelming vote [209-35] in favor of the article set out in the Warrant . . . . ”
On April 15, 1969, another special town meeting was held for the purpose of ratifying the action taken at the October 9, 1968 meeting. The article in die warrant to diat effect was adopted by the voters, With respect to both the October 9, 1968 and the April 15, 1969 meetings, it is undisputed that the prerequisites for the adоption of a zoning ordinance were not met. RSA 31:63-a (supp) provides, among other requirements, that in the enactment of a zoning ordinance “diere shall be at least two public hearings at least fifteen days apart” with a notice of the time and place published in a paper of general circulation in the town.
The master ruled “that the ordinance in question constitutes a ‘ zoning regulation ’ which may be enacted only pursuant to the provisions of RSA 31:63-a as amended .... Sincе the prerequisites of publication and public hearings were not met at either the meeting of October 9, 1968 or at the meeting of April 15, 1969, die master rules that the ordinance is invalid and unenforceable. ” The superior court entered a decree accordingly.
Although the town admits that the requirements for the adoption of a zoning ordinance (RSA 31:63-a (supp) ) were not met, it maintains, however, that diese requirements do not apply to an ordinance adopted by the town in the exеrcise of its police powers (RSA 31:39) and that the master erroneously applied them to the present ordinance.
The governmental authority known as die police power is an inherent attribute of state sovereignty, Peirce v. New Hampshire, 5 How (U.S.) 554, 582 (1847); 16 Am. Jur. 2d Constitutional Law ss. 259, 260. The police power is broad and “includes such varied interests as public health, safety, morals, comfort, the protection of prosperity, and the general welfare. ” Corning Glass Works v. Max Dichter Co.,
“ It is a long established principle under our law that towns are but subdivisions of the State and have only the powers the State grants to them. ” Exeter v. Kenick,
This court has held that towns are empowered under the authority granted by RSA 31:39 to make bylaws for a variety of purposes which generally fall into the category of health, welfare and public safety. State v. Jetterberg, supra. Setback ordinances, as well as ordinances regulating spaсe between buildings and imposing limits on the height of buildings have been held generally to come within this police power of towns. 6 McQuillin, Municipal Corporations s\s\ 24.541,-.542,-.546,-.547. In Jaffrey v. Heffernan,
Plaintiffs, arguing against the validity of the Meredith ordinance as a valid, exercise of the town’s authority under RSA 31:39, point out that the objects and purposes of the present ordinance are found among the many purposes for which towns have been empowered tо enact a zoning ordinance. RSA 31:60. They also correctly point to the fact that reference was made to the enabling law of zoning in the preamble to the present ordinance when it first was proposed for adoption at the town meeting of October 9, 1968. However, this same preamble also contained language consonant with the police powers granted to towns under RSA 31:39. Furthermore the purposes stated in the preamble, although entitled to weight, are nоt determinative of the type or constitutionality of the ordinance. Opinion of the Justices,
Whether of not a particular law is a zoning measure subject to the prerequisites for the enactment of such an ordinance (RSA 31:63 - a ( supp ) ) or is an expression of some other phase of the police power, not so subject, is to be determined by the nature and purpose of the particular enactment. 8 McQuillin, Municipal Cоrporations 5. 25.10 ( 1965 rev. vol.). See American Sign Corporation v. Fowler,
The ordinance in question provides for an overall height limitation on buildings in the town of five stories or seventy-five feet in height. It further limits the height to three stories or forty-five feet if the building is within fifty feet of another building or one hundred feet of the shore of any lake. The town adverts to die fact diat Meredith Bay of Lake Winnipesaukee is a public body of water owned by the public at large and widely used for recreation and boating. State v. Stafford Company,
The town also points out that Meredith is an area of great natural beauty whose normal population of about 2800 expands to between 12,000 to 15,000 in the summer season. It maintains that “The congestion of summer population in high-rise buildings quite close to the limited amount of undeveloped shore lines of New Hampshire lakes presents obvious problems affecting the public health, safety and welfare ” the regulation of which comes within the powers granted under RSA 31:39. State v. Jenkins,
The town further maintains that aesthetics or the appearance of a community which this ordinance seeks to preserve is also
Under familiar principles of law, the presumptions favor the validity of the ordinance and the burden of establishing its unconstitutionality is on the plaintiffs. State v. Grant,
We hold that tire ordinance in this case is in the category of the ordinances in the Heffernan and Deering cases. The first regulating the setback of buildings from a public highway. The latter regulating the construction and locatiоn of buildings in a certain area of town. It differs from the ordinance in Bisson v. Milford,
We hold further that the Meredith ordinance comes within the police.powers granted to the town by RSA 31:39 to protect its public institutions and to promote the general economy, welfare and prosperity of the town. Deering v. Tibbetts,
If the town could adopt the ordinance without observing the notice and requirements of RSA 31:63 - a ( supp ), as we are holding, the master found and ruled that the ordinance was effective as of April 15, 1969 and applies to plaintiffs’ project
The master found that during the period from June 1, 1968 tо October 1, 1968, the plaintiffs expended approximately $40,000 on the project for borings, surveys, a rendition of the proposed buildings, preliminary plans, land clearing, overhead, administration and sales expenses. During the period from October 1, 1968 to May 1, 1969 the master found that according to plaintiffs’ evidence they had expended an additional $ 100,000, exclusive of the original land acquisition, for a total of approximately $ 140,000, against the total cost of the project estimatеd to be $ 1,700,000 exclusive of land acquisition and engineering.
This court has adopted the rule, which prevails in many other jurisdictions, that an owner, who, relying in good faith on the absence of any regulation which would prohibit his proposed project, has made substantial construction on the property or has incurred substantial liabilities relating directly thereto, or both, acquires a vested right to complete his project in spite of the subsequent adoption of an ordinance prohibiting thе same. Winn v. Corporation,
In determining whether plaintiffs had acquired such a vested right, the master properly excluded the acquisition price of the land and its lessened value for uses other than that intended by the plaintiffs. Money spent for the purchase of land does not change its use nor create a right to use it for an intended, but not executed, use when restrictions are imposed. It is, rather, the amount of money spent on improvements to change the use of the land in a tangible way which if substantial enоugh and done in good faith will create a vested right which cannot be affected by the enactment of a restrictive ordinance. City of Rutland v. Keiffer,
In this case a petition for a special meeting to adopt the present
As to the effect of plaintiffs’ expenditures, each case presents a question of fact peculiar to its own set of circumstances. The ultimate objective is fairness both to the public and to the individual property owners. Tremarco Corporation v. Garzio,
In view of the result reached it is unnecessary to consider other issues raised by the parties.
Decree vacated and plaintiffs’ exceptions overruled, fudgment for defendant.
Dissenting Opinion
dissenting: Although the police power of the State may be “broad,” “flexible” and “expanding” tire police power of towns is confined to that which has been granted by statute.
The legislature under its police power has provided in RSA 31:60-89 authority for the enactment of an ordinance such as this, and the preamble of this ordinance states that it was enacted pursuant to that authority. The ordinance also cites the same purposes as are set forth in section 62.
It is my view that these sections ( 60 - 89 ) provide the exclusive source of power for the enactment of ordinances to “regulate and restrict the height, number of stories and size of buildings . . . the percentage of lot that may be occupied, the size of yards, courts and other open spaces, the density of population and the location of buildings . ...” s. 60. The ordinance in question here seeks directly or indirectly to do all these things. It is clearly a zoning ordinance. Although an ordinance may be a zoning ordinance without creating zones (Plainfield v. Hood,
It is undisputed that those cоnditions have not been met and that the ordinance cannot be upheld under this grant of power. The court, however, concludes that the legislature having granted this power upon conditions contained in sections 60-89 intended to allow the town to do the same thing under section 39 without meeting those conditions, even though section 39 contains not a single word relating to building restrictions. Because of the specificity of section 39 it cannot be assumed to confer powers not enumеrated or referred to. Adie v. Temple Mt. Ski Area,
The court seeks to uphold the ordinance as*a means of “protection, preservation and use of the public cemeteries, parks, commons, libraries and other public institutions of the town ” (s. 39 ) as in Deering v. Tibbetts,
The court also relies on the phrase “for making and ordering their prudential affairs.” s. 39. The “ management ” of the “ prudential affairs ” of towns is vested in the Selectmen by RSA 41:8. Although thе authority of the Selectmen in “managing” is more restrictive than that of the town in “making and ordering, ” the term “ prudential affairs ” obviously relates to the same type of town business. It is true that the term “ prudential affairs ” has never been precisely defined but a reading of the cases relating thereto discloses that it refers to matters of a pecuniary nature and tire ordinary business affairs of the town requiring the exercise of discretion and prudence. Nowhere in any of the cases relating to the term is there any indication whatever that it includes the power to enact ordinances such as is here involved. See Sanborn v. Deerfield,
Jaffrey v. Heffernan,
I stand with the two trial justices and the master, all of whom have taken the position that this ordinance is invalid.
I also disagree with the court’s ruling that the plaintiffs had gained no vested rights prior to the enactment of the ordinance. To get the full picture of the conditions under which plaintiffs acted it should be stated that prior to their purchase of the land in question the town had voted against proposed zoning ordinances. Such ordinances were also voted down at the March town meetings in both 1969 and 1970. Plaintiffs, I think, had every reason to expect that they could proceed with their plans right up to April 15, 1969 the time this ordinance was actually enacted. By this time they had expended about $ 140,000 exclusive of the $ 160,000 they had paid for the land which they purchased specifically for this project. The master found that they had spent $40,000 prior to October 1, 1968, an additional $5,000 prior to October 9, 1968, and had acted in good faith up to that date. There is evidence that the land is worth only about $85,000 if it cannot be used for the purpose for which it was purchased. Under the circumstances of this case this diminution in value of the land should be considered in determining whether plaintiffs have incurred substаntial liabilities. Yocum v. Power,
In considering the question of “ good faith ” we should not lose sight of the master’s reference to the fact that this ordinance was aimed specifically at the plaintiffs and their project. It is in fact “special legislation directly aimed at this particular piece of property. ” Yocum v. Power, supra. I would hold that the plaintiffs had gained vested rights and that the ordinance, even if valid, does not apply to this project.