2004-849, WEARE LAND USE ASSOCIATION v. TOWN OF WEARE & a.

The plaintiff, Weare Land Use Association (Association),

brief and orally), for the defendants. Boutin & Associates, P.L.L.C., of Londonderry (Brenda E. Keith on the

and Sumner F. Kalman on the brief, and Mr. Kalman orally), for the plaintiff. Sumner F. Kalman, Attorney at Law, P.C., of Plaistow (Thea S. Valvanis 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. 2004-849 Hampshire, One Noble Drive, Concord, New Hampshire 03301, of any editorial Hillsborough-northern judicial district Readers are requested to notify the Reporter, Supreme Court of New ___________________________

THE SUPREME COURT OF NEW HAMPSHIRE

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 circumstances’ and unduly restricts fundamental rights.”

p. 2 as addressed in that order.”

objective of an ‘interim regulation’ controlling growth due to ‘unusual

previous order was the court’s “concluding determination” on “the other issues

permit limitation bears no reasonable relationship to the legitimate limited

withdraws any ‘as applied’ claims” concerning the ordinance and that the

RSA 676:12. derogation of the putatively superseding “rights” prescribed in RSA 676:4 and rational basis test “in that the extent of the restriction beyond the building the Association urges that the ordinance is an ultra vires enactment in that the ordinance is unconstitutional under the substantive due process Subsequently, the trial court issued an order stating that the “Association ordinance changes pursuant to RSA 676:12 VI.” The Association also argues challenges, and declined to address its substantive due process claims. challenge. The court deferred without prejudice the Association’s as-applied

676:4 and 676:12 nor deny access to the Board of Adjustment.” Specifically,

formal vote protecting the application/plan from subsequently posted zoning

does not authorize the town “to suspend the legal protection and effect of RSA

owners the unequivocal right to have a completed application ‘accepted’ by the ordinance violated rights conferred by “RSA 676:4 I(c)(1) which gives land hearing, the trial court issued an order denying both the town’s motion to authority included in RSA 674:23 (Supp. 2005). The Association argues that for summary judgment, while the town filed a motion to dismiss. After a unconstitutional and void both facially and as applied. The Association moved

The Association argues that the ordinance is invalid because RSA 674:23

void the ordinance as an “ultra vires” enactment that exceeded the statutory

and permanent injunction, alleging that the ordinance was illegal,

permits that the town could issue for new dwellings during the one-year period.

On appeal, the Association argues that the trial court erred by failing to

petition for declaratory judgment, bill in equity, and request for a preliminary

prior to that date. The ordinance also limited to sixty the number of building accepted after March 9, 2004, but not to those that were formally accepted lots.” (Quotation omitted.) The ordinance applied to applications formally

In response to the adoption of the ordinance, the Association brought a

. . . or any other major subdivision applications creating a total of more than 3 housing, multi-family housing, mobile home parks or condominiums proposed notice of said change or amendment.”

p. 3 I(b) so long as said plat or application was accepted prior to the first legal 676:12, VI, in that fashion would have the effect of rendering RSA

thereby denying them the protections afforded by RSA 676:12.

comprehensive plan and to provide for phasing in growth.” [with] reasonable time to develop [or alter] a master or 3

application formally accepted by the planning board pursuant to RSA 676:4, Association. Moreover, interpreting RSA 676:4, I(c)(1), and RSA plan review or zoning ordinance or amendment thereto shall affect a plat or (Supp. 2005) states, in pertinent part, that “[n]o proposed subdivision or site 674:23 in that it prevents applications from being accepted under RSA 676:4, exist. The Association claims that the ordinance exceeds the authority of RSA upon development” where “unusual circumstances requiring prompt attention”

674:23, as previously codified at RSA 31:62-b, is to provide “a town

Board – were interpreted in the manner suggested by the applications that have been formally accepted by the Planning the board’s regulation and shall vote upon its acceptance.” RSA 676:12, VI I(c)(1), and RSA 676:12, VI – both of which concern plats or (Supp. 2003). This purpose would likely be defeated if RSA 676:4, [v. Town of Stratham, 120 N.H. 257, 258-59 (1980)]; RSA 674:23, I provides that a town “may adopt an ordinance imposing interim regulations Conway

The purpose of the interim growth management ordinance, RSA

In rejecting the Association’s argument, the trial court stated:

application, . . . determine if a submitted application is complete according to

The ordinance in question was adopted under RSA 674:23, I, which

statute. at the next regular meeting or within 30 days following the delivery of the RSA 676:4, I(c)(1) (Supp. 2005) states, in pertinent part, that “[t]he board shall, After defining what constitutes a completed application in section I(b),

148 N.H. at 771. trial court’s interpretation of the statute de novo. Monahan-Fortin Properties, purpose of the statute. State v. Kay, 115 N.H. 696, 698 (1975). We review the leading to an absurd result and nullifying, to an appreciable extent, the Fillmore, 147 N.H. at 285. The legislature will not be presumed to pass an act particular provision, not in isolation, but together with all associated sections. (2002). We interpret a statute to lead to a reasonable result and review a

Monahan-Fortin Properties v. Town of Hudson, 148 N.H. 769, 771

consider what the legislature might have said, or add words not included in the will not examine legislative history unless the statutory language is ambiguous, look to the plain and ordinary meaning of the words used in the statute and words of the statute itself. Fillmore v. Fillmore, 147 N.H. 283, 285 (2001). We We are the final arbiter of the meaning of a statute as expressed by the the [interim growth management ordinance].”

p. 4 nature and scope of the rights and/or titles that have allegedly been affected by Association’s as applied challenges without more specific information about the court declined to address this claim because it could not “evaluate the

claims were withdrawn, and the trial court never addressed the Association’s

particular conditions existing at the time of litigation). Since all “as applied”

legitimate limited objective of an ‘interim regulation’ controlling growth due to rendering RSA 674:23 rather meaningless.” We therefore hold that the beyond the building permit limitation bears no reasonable relationship to the that the ordinance is unconstitutional in that “the extent of the restriction relationship of the particular ordinance to a particular property under questions the fundamental fairness of an ordinance both generally and in the 148 N.H. 121, 124 (2002) (a substantive due process challenge to an ordinance

interpretation of RSA 676:4, I(c)(1) and RSA 676:12, VI “would have the effect of Furthermore, the trial court correctly concluded that the Association’s The Association makes a substantive due process argument, contending regulations may be used to carry out the above-stated purpose of the statute. II. Substantive Due Process

growth. Conway, 120 N.H. at 259. interim growth ordinances are appropriate “temporary measure[s]” to control

Conway, is valid, and not ultra vires. We continue to recognize that

years after

Nowhere in RSA 674:23 does the legislature restrict which types of

developing a comprehensive plan). measure, when it lasts for no more than one year towards the purpose of Conway. Id. (upholding the validity of a slow growth ordinance as a temporary ordinance enacted by the Town complies with principles enumerated in 676:4 has no effect upon our holding in Conway. On the contrary, the predecessor to RSA 674:23. Conway, 120 N.H. at 259. The enactment of RSA growth ordinance enacted pursuant to RSA 31:62-b, which was the

Conway was decided. In Conway, we upheld the validity of a slow-

that the instant case turns on RSA 676:4, which was enacted in 1983, three of Stratham because it “is dead letter.” Specifically, the Association contends The Association argues that it is improper to rely upon Conway v. Town

We agree with the trial court’s statutory interpretation.

N.H. 110, 116 (1994) (quotation omitted). statute to produce such an illogical result.” Appeal of Soucy, 139 674:23 rather meaningless. The Court “will not interpret the p. 5 5

action, if any, as it deems appropriate. was withdrawn or deferred below, we remand to the trial court for such further

concurred. BRODERICK, C.J., and DALIANIS, DUGGAN and GALWAY, JJ.,

instance. Because it is unclear from the record before us whether this claim substantive due process challenge, we decline to address it in the first