2005-140, BOULDERS AT STRAFFORD, LLC v. TOWN OF STRAFFORD

declare a section of the town’s zoning ordinances unconstitutional.

Section 1.4.1(F)). We vacate and remand. & Building Regs., ch. 1, § 4.1(F) (2003). (Strafford Zoning Ord. 1.4.1(F) or Strafford Zoning & Land Use Ords., Subdiv. Regs., Non-Resid. Site Plan Regs.,

judgment filed by the plaintiff, Boulders at Strafford, LLC (Boulders), seeking to decision of the Superior Court (Fauver, J.) granting the petition for declaratory BRODERICK, C.J. The defendant, Town of Strafford (town), appeals the

Spector on the brief, and Mr. Mitchell orally), for the defendant. Mitchell & Bates, P.A., of Laconia (Walter L. Mitchell and Laura A.

the brief and orally), for the plaintiff. Donahue, Tucker & Ciandella, P.L.L.C., of Exeter (Robert M. Derosier on Errors may be reported by E-mail at the following address:

errors in order that corrections may be made before the opinion goes to press. No. 2005-140 Hampshire, One Noble Drive, Concord, New Hampshire 03301, of any editorial Strafford Readers are requested to notify the Reporter, Supreme Court of New ___________________________

a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as p. 2 Services. Evans, Caldwell, Morse and Gove all testified as experts on behalf of

Hampshire Soil Consultants, Inc.; and Jim Gove of Gove Environmental

prepared the subdivision plans for the property; Lawrence Morse of New Caldwell, owner of a landscape and engineering firm and the person who Environmental Services (DES) involved in the DES rulemaking process; Corey to seek the necessary variance. preference for the conservation/open space proposal and encouraged Boulders

William E. Evans, an employee of the New Hampshire Department of

of the sixty-six subdivided lots. After a public hearing, the board expressed its

applied to the property.

witnesses: Rick Van de Poll, a Ph.D. in natural resources management; During a bench trial, the superior court heard testimony from five expert conservation/open space proposal required a variance for roughly twenty-five this ordinance, but because the property contains wetlands, the protect wetlands. The conventional design did not require any variance from court to declare Section 1.4.1(F) unconstitutional both on its face and as Rather than appeal the denial of the variance, Boulders petitioned the superior of adjustment denied the request, as well as Boulders’ petition for rehearing. some septic systems within seventy-five feet of the wetlands. The zoning board Boulders then applied for a variance, asking that it be allowed to install yielding approximately fifty-eight and sixty-six subdivided lots, respectively. proposals were a conventional design and a conservation/open space proposal, (effective 3-13-1979): the location of the system in accordance with the following table according to the natural slope of the land between the wetland and

Both Boulders and the town agree that the purpose of Section 1.4.1(F) is to

over 15% slope = 200 foot setback. 9 – 15% slope = 150 foot setback 0 – 8% slope = 100 foot setback

development of the property to the Strafford Planning Board (board). The two

new sewerage system location from any such wetland shall vary The minimum set back distance for the placement of any part of a

septic systems. Section 1.4.1(F) states: Both proposals required that homes built on the lots contain individual

2003, Boulders presented alternative design proposals for residential development rights to approximately 300 acres in Strafford. In the summer of The record supports the following. Boulders owns or has the

however, argues that the trial court did not apply the rational basis test in safety, morals and general welfare of the community.

federal opinions for guidance only. able to withstand a substantive due process challenge under the State

substantive due process claim under the State Constitution. The town, grants municipalities broad authority to pass zoning ordinances for the health, Both the town and Boulders agree that this is the proper test for a

from wetlands within the town. 152 N.H. at 145. rights that is rationally related to the municipality’s legitimate goals. Taylor, scrutiny, and asks whether the ordinance constitutes a restriction on property N.H. 121, 124 (2002). This inquiry employs the lowest level of constitutional

to the substantive due process protections of the State Constitution and cite whether an ordinance is a proper exercise of the town’s police power, and thus Plaistow, 152 N.H. 142, 145 (2005); RSA 674:16, I (1996). In determining

reviewing the constitutionality of the ordinance. The State zoning-enabling act We first address whether the trial court applied the wrong standard in and its use of slope as the sole factor in determining septic system setbacks ordinance. We discuss each argument in turn. evidence for Boulders to meet its burden and for the court to invalidate the II alternative that, if the correct standard was applied, there was insufficient (198 p. 3 3).

followed. Articles 2 and 12 of the State Constitution. We therefore limit our discussion it argues only that the ordinance violates substantive due process under Part I, an equal protection or substantive due process challenge, or both. On appeal It is unclear from the record before us whether, at trial, Boulders made

wetlands ordinances, and gave opinions on the propriety of Section 1.4.1(F) kinds of factors that should be considered in designing septic systems and they may have on various types of wetlands. They also testified about the standard in examining the constitutionality of Section 1.4.1(F). It argues in the On appeal, the town argues that the trial court applied the wrong

law from the parties, the trial court ruled in favor of Boulders. This appeal After hearing testimony from the witnesses and accepting memoranda of

about how septic systems work, what happens when they fail, and the impact Boulders, while Van de Poll was the town’s only expert. Each witness testified related to that end.

p. 4 ordinance was invalid on its face. substantial relationship to the protection of wetlands. It thus ruled that the

testified was necessary,” the town’s ordinance was arbitrary and unreasonable. legitimate, and additionally the means employed by the town must be rationally

setback requirements at a distance more severe than any of the experts objective does not make the objective legitimate. Rather, the goal must itself be all circumstances.” It relied upon this finding in ruling that, “by setting the

ended its facial analysis by holding that the ordinance was not rationally

proper standard in this case, we note that a rational relation to the town’s agreed that a less restrictive setback of 75 feet would protect the wetlands in difference having a fair and substantial relation to the object of the legislation.’” protection of the wetlands.” While we agree that rational basis review is the As part of its analysis, the court also determined that “all of the experts that, “to be legitimate, the ordinance must be rationally related to the

legitimate goals.’” court properly began this portion of its order with rational basis review, it

“‘must be reasonable, not arbitrary, and must rest upon some ground of applied them to the expert testimony introduced at trial. It began by stating strict scrutiny standard.” After setting forth these various standards of review, the trial court

(quoting Asselin v. Town of Conway, 137 N.H. 368, 372 (1993)).

restriction on property rights that is not rationally related to the town’s the landowner against the gain to the public.” namely, “‘whether the claimants proved that the provision constitutes a trial court cited the rational basis test for substantive due process claims; Id. at 69 (quoting Carson v. Maurer, 120 N.H. 925, 932 (1980)). Finally, the

followed with an exposition of the intermediate scrutiny test, that the ordinance

challenges to zoning ordinances under the State Constitution. for this reason are subject to our middle tier equal protection test and not the “[z]oning ordinances consider and balance the interests of all landowners, and 117 N.H. 497, 501 (1977). It then quoted Brooks for the proposition that

challenges to zoning ordinances — namely a “balancing of the injury or loss to However, it immediately quoted the Metzger rule for resolving as-applied turned to the question of whether the ordinance was constitutional on its face. determination. After describing the expert witnesses’ testimony, the court It is unclear which test the trial court applied in reaching its

N.H. at 124-25; Town of Chesterfield v. Brooks, 126 N.H. 64, 67-69 (1985).

standard that we have recognized as appropriate for equal protection argues that the trial court applied the middle-tier test, or intermediate scrutiny statement at the hearing on the merits.

p. 5 made reference to the least-restrictive-means standard during his opening town’s reasonable health, safety and welfare goals.” Counsel for Boulders also inquiry, strict scrutiny. much property within its setback restriction than is necessary to achieve the

inappropriately applied an element of our highest level of constitutional ordinance is unduly restrictive . . . and that it is overbroad, capturing far too

goals.” its legitimate goals, so long as the means chosen is rationally related to those analysis. We will not second-guess the town’s choice of means to accomplish property.” The court therefore granted Boulders’ petition for declaratory it need not explore whether it is unconstitutional as applied to the plaintiff’s

there are less restrictive means of accomplishing the same end. could have been more narrowly tailored. In doing so, the trial court confusion. For example, in its memorandum of law, Boulders argued “that the protection of wetlands, we will not invalidate Section 1.4.1(F) merely because court’s order as invalidating the ordinance because the setback requirements The parties also made errors that likely contributed to the trial court’s between wetlands and septic systems in other towns.” Rather, we read the

“An analysis of least restrictive alternatives is not part of a rational basis the [trial] court [had] already determined that the ordinance is facially invalid, quoted the balancing test from Metzger, but then determined that, “because Finally, the trial court addressed the as-applied challenge. It again requirements in the ordinance. the court erred in invalidating the 100-, 150- and 200-foot setback

that there is no rational relationship between these greater setbacks and the Casperson, 139 N.H. at 644 (citation omitted). Thus, while it may be that “the court may also have been persuaded by the setbacks imposed

narrowly-tailored requirement of strict scrutiny under Federal Constitution). legislation not be unduly restrictive or unreasonable, and is thus similar to N.H. 177, 179 (1993) (strict scrutiny under State Constitution requires that

fifty or seventy-five feet depending on the type of soil, the town contends that

equal the State’s minimum distances. Nor do we believe, as the town suggests, we do not read the trial court’s order as stating that the town’s requirements While we agree that the town may enact greater protections for wetlands,

Strafford Zoning Ord. 1.4.1(F).

Therefore, because DES rules apparently set minimum setback distances of A:32, I (2001); Cherry v. Town of Hampton Falls, 150 N.H. 720, 725 (2004). the town may impose greater restrictions than does the State. See RSA 485that all experts testified that seventy-five feet is sufficient. It also argues that The town argues that there is insufficient evidence to support the finding p. 6 6

below — erroneous standard. This argument, however, fails for two reasons: (1)

information to be Van de Poll to state only that the “slope-based setback needs . . . further burden of proof, and that is to show that there is ordinance. But even then, the cases cited in Boulders’ memorandum of law applied the wrong standard, as the town itself urged the application of the related to the ends of protecting the wetlands. Indeed, these very questions led challenge, the law requires that [Boulders] sustain what’s a heavy test, a test not normally triggered by an equal protection challenge to a zoning Boulders argues that the town has waived its claim that the trial court protection argument is that Boulders consistently referred to the rational basis substantial” intermediate scrutiny test rather than the rational basis test. Town of Hanover, 133 N.H. 318, 322-23 (1990), to set forth our “fair and repeated twice in the town’s trial memorandum. The town relied on Buskey v. under the substantive due process protections of the State Constitution. (Emphasis added.) This recitation of the middle-tier scrutiny standard was

general welfare of the community. relationship between the ordinance and health safety morals or

to produce a “proper” or “appropriate” setback, but rather one that is rationally My understanding, however, is that the law, for the facial

grounds below. Thus, the only suggestion that it was not making an equal town’s counsel told the court: The town also added to the confusion. In his opening statement, the

(Emphasis added.) raised. It was only on appeal that Boulders made clear that the claim arose standards, thus leaving it uncertain as to what type of claim Boulders had reference to or apply both the substantive due process and equal protection

Dow and Quirk v. Town of New Boston, 140 N.H. 124 (1995) — make

with this line of questioning, however, is that the ordinances are not required an attempt to determine what the “proper” setback should be. The problem that Boulders challenged the ordinance solely on substantive due process Finally, and as noted above, we cannot find any indication in the record

make ordinance was not rationally related to the protection of the wetlands. soils or the characteristics of wetlands, which if known . . . allow to

more correct for the particular site,” and not that the

(Emphases added.) Additionally, counsel asked questions of the witnesses in

appropriate setback. a more accurate determination of what could be an

because it doesn’t take into account the characteristics of either It’s the plaintiff’s contention that the ordinance is facially invalid p. 7 7

justification.”

necessary to achieve a compelling governmental interest, reasonably related to Maurer, 120 N.H. at 932-33. Strict scrutiny requires that legislation be purpose,” have a fair and substantial relation to the governmental objective. Carson v. scrutiny requires that challenged legislation be reasonable, not arbitrary, and the terms “reasonable,” “arbitrary,” and “unduly restrictive.” Intermediate classification is promulgated is arbitrary or without some reasonable at ___ (Broderick, C.J., concurring specially). Each of these three tests employs Gonya v. Comm’r, N.H. Ins. Dep’t, 153 N.H. __, __, (decided May 18, 2006); id. between our rational basis and middle-tier or intermediate scrutiny tests. basis and strict scrutiny standards. We have also recognized an overlap the town’s goals. As this discussion indicates, there is an overlap between our rational

139 N.H. at 644. restrictive-means test that is not part of rational basis review. See Casperson,

Metzger, 11 p. 7 7 N.H. at 503. Such holdings appear to apply a least-

whether the restrictions were “unnecessary to accomplish a legitimate public that legislation must “not unduly restrict fundamental rights,” id., and asked fifteen feet sufficient). In doing so we applied the rational basis test to require party challenging [specific] legislation has the burden to prove that whatever 2 p. 7 76 (requiring twenty-four-foot-wide fire lane was unconstitutional where unconstitutional where 123 feet provided ready access); Powers, 125 N.H. at

Metzger, 11 p. 7 7 N.H. at 503 (requiring 200 feet of frontage was

reasonable use of their land.” requiring more frontage and a larger fire lane than was necessary to achieve Metzger and Powers we declared two zoning ordinances unconstitutional for for being broader than necessary to accomplish a town’s legitimate goals. In Additionally, we have invalidated legislation under the rational basis test be presumed.” (applying rational basis review to RSA chapter 458).

LeClair v. LeClair, 13 p. 7 7 N.H. 213, 223 (1993) (quotation omitted)

502. In another context we have stated, “Under the rational basis analysis, the and not equal protection grounds. Powers v. Town of Hampton, 125 N.H. 2 p. 7 73, 276 (1984); Metzger, 117 N.H. at it, in fact, challenged the ordinance based solely on substantive due process Dow, 148 N.H. at 124 (quotation omitted); basis test if it creates “unreasonable restrictions which deprive [citizens] of the objective,” and that the police power, while wide ranging, will fail the rational stated that a zoning ordinance must “bear[ ] a reasonable relationship to its

Id.; see also Quirk, 140 N.H. at 130. At other times we have

“reasonableness of a particular . . . provision” and that “its reasonableness will test to zoning ordinances we have also stated that we will review the legitimate governmental interest. See Taylor, 152 N.H. at 145. In applying this Our rational basis test requires that legislation be rationally related to a

precise claim it had made; and (2) Boulders conceded in its appellate brief that Boulders itself failed to inform either the town or the trial court as to the constitutional review. p. 8 these issues in order to aid our continued examination of these standards of

test. Accordingly, we overrule

is before us. As we did in that case, we encourage future litigants to consider

individual rights, and that a least-restrictive-means analysis is not part of this in the case before us. “The doctrine of

intermediate and strict scrutiny tests. In

the errors to persist. these tests and bringing them into conformity with each other than to suffer to mislabel these standards, and trust that the bench and bar will do likewise.

address those concerns. Nor will we do so here, as only the rational basis test parties nor the trial court in that case had raised such issues, we did not N.H. at __ (Broderick, C.J., concurring specially). However, because neither the State Constitution contains no inquiry into whether legislation unduly restricts basis review, would perpetuate and foster the kind of confusion demonstrated various other problems inherent in our intermediate scrutiny test. governmental interest. We further hold that the rational basis test under the Gonya, 153

constitutional review, but we will not at this time make any changes to our We recognize that our holding here affects the other standards of

judgment it is better to undergo the hardships that may result from correcting that they do not comply with these standards. We have been careful today not (1977), and Powers v. Town of Hampton, 125 N.H. 273 (1984), to the extent

review, as well as the use of a least-restrictive-means inquiry in our rational Constitution requires that legislation be only rationally related to a legitimate We therefore hold that the rational basis test under the State

However, given the status of our standards of constitutional review, in our College, 89 N.H. 471, 474 (1938) (superseded by statute on other grounds). change to be applied in the interest of continuity.” Amoskeag Co. v. Dartmouth

“arbitrary,” and “unduly restrictive” in each of our levels of constitutional Allowing the continued and duplicative use of the terms “reasonable,”

over- and underinclusive nature of statute to determine whether it was “fairly Indemn. Co., 133 N.H. 109, 126 (1990) (Souter, J., dissenting) (discussing to the federal ‘narrowly tailored requirement’”); City of Dover v. Imperial Cas. & unduly restrictive nor unreasonable [under State strict scrutiny test] is similar ends differs under each test. Id. (“requirement that regulations be neither means inquiry, although the level of “fit” between the legislation’s means and Intermediate and strict scrutiny also contain some type of least-restrictiveits objective, and not unduly restrictive. Seabrook, 138 N.H. at 179. ordinances,

p. 9 evidence” and “cannot function as the sole guide” in examining zoning another context that scientific and statistical data are “but one kind of industrial, residential, or other purposes”). Indeed, we have recognized in

Amendment”). Thus, legislation may not be applied in a

occupied, and the size of yards, courts and other open spaces . . . [and] regulate and restrict . . . [l]ot sizes, the percentage of a lot that may be general welfare.”); RSA 674:16, I (1996) (“zoning ordinance shall be designed to v. Rogers, 83 N.H. 253, 257 (1928). legislation within [the town’s] purview” might be sufficient to save it, Sundeen recognized an ‘overbreadth’ doctrine outside the limited context of the First further stated that “any fair reason [that] could be assigned for bringing

Rancourt v. Town of Barnstead, 129 N.H. 45, 51 (1986), and have power);

its intended purpose of protecting the wetlands.

preservation or enhancement of the visual environment may promote the whether Section 1.4.1(F) can be applied to a particular piece of property. exercise zoning power solely to advance aesthetic values, because the believe that this issue must be addressed before the trial court examines Asselin, 137 N.H. at 371-72 (“We now conclude that municipalities may validly As Boulders has expressly made a facial challenge to Section 1.4.1(F), we [legislation] would be valid . . . [because United States Supreme Court has] not necessary to avoid unsightliness, contain noise, and” for safety concerns); Quirk, 140 N.H. at 130 (“buffer [zone around campground] was (aesthetics, safety and planning concerns constitute legitimate uses of police could posit to justify its zoning ordinances. See, e.g., Taylor, 152 N.H. at 145 We note that there are many reasons besides scientific data that a town

Therefore, Boulders must prove that the ordinance is not rationally related to facially invalid and could not constitutionally be applied in any case. See id.

applied grounds first, without addressing the facial validity of the ordinance. plaintiff “must establish that no set of circumstances exists under which the States v. Salerno, 481 U.S. 739, 745 (1987) (to succeed in facial challenge, (overbreadth doctrine applicable primarily in First Amendment cases); United constitutional applications. See State v. Pike, 128 N.H. 447, 451 (1986) Court, we will generally invalidate legislation in toto only where it has no the burden of proof. LeClair, 137 N.H. at 223. Like the United States Supreme The party challenging legislation as violating the rational basis test has

agree. The town further contends that this case should be decided on the aswhich test the trial court applied, remand this case for a new hearing. We The town argues that we should, having determined that it is unclear

DALIANIS, DUGGAN and GALWAY, JJ., concurred.

and remand for further proceedings consistent with this opinion. Having articulated this new standard, we vacate the trial court’s ruling