2006-155, WALTER W. FISCHER, TRUSTEE v. NH STATE BUILDING CODE REVIEW BOARD

The petitioner, Walter W. Fischer, Trustee of Walter W.

general, on the brief and orally), for the State.

Kelly A. Ayotte, attorney general (Mary E. Maloney, assistant attorney

and orally), for the petitioner. to press. Errors may be reported by E-mail at the following address: Gottesman & Hollis, P.A., of Nashua (Anna Barbara Hantz on the brief

NEW HAMPSHIRE STATE BUILDING CODE REVIEW BOARD

page is: http://www.courts.state.nh.us/supreme. v.

WALTER W. FISCHER, TRUSTEE OF WALTER W. FISCHER 1993 TRUST

editorial errors in order that corrections may be made before the opinion goes No. 2006-155 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Strafford 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 continue to use the property as originally classified.” p. 2 retrospective application and improperly denies [him] his vested right to

requirement on a pre-existing use” and “results in an unconstitutional

reclassification of his property “imposes an incompatible later enacted code property without just compensation. Specifically, he contends that the 23, prohibiting retrospective laws, and Part I, Article 12, prohibiting takings of

request, which was remanded for evaluation by the fire marshal.

changed for over 30 years.” The trial court affirmed, except as to a waiver petitioner’s use of the buildings, even though the petitioner’s use has not improperly determined that subsequently-enacted fire regulations apply to the respect to the regulatory change imposed upon his property. unrelated individuals”; and (4) the petitioner was denied due process with reclassification to a new occupancy category under the code. He grounds his application” of a “later enacted code requirement.” The State asserts that “[t]he We first address whether the reclassification at issue is a “retrospective compliance with the code. evidence or legally erroneous.

petitioner then appealed to the superior court, claiming that “the Board

change in use; (3) the code “arbitrarily discriminates between related and The plaintiff first argues that his property is “grandfathered” from

Council, 150 N.H. 1, 4 (2003). houses” and required modifications to the buildings to bring them into Cf. Conservation Law Found. v. N.H. Wetlands Durham Fire Marshal then reclassified the buildings as “lodging or rooming not disturb the decision of the trial court unless it is unsupported by the 1, 2003, that his buildings were improperly classified under the code. The unreasonable or unlawful.” RSA 155-A:12, II (Supp. 2006). We, in turn, will proof [is] on the appellant to show that the decision of the board was clearly On appeal of the board’s decision to the superior court, “[t]he burden of

affirmed. That decision was appealed to, and affirmed by, the board. The

(2) the code exempts existing uses from new requirements unless there is a “improperly interferes with [his] vested right to use the structures as duplexes”; On appeal, the petitioner argues that: (1) reclassification of his buildings

fire safety standing. The Durham Fire Marshal notified the petitioner on July

The petitioner appealed the reclassification to the state fire marshal, who

caused the Durham Fire Department to review the building’s classification and occurred in one of the buildings which, according to the respondent board, at least May 2002, have classified them as two-family dwellings. In 2002, a fire Local fire officials have periodically inspected the buildings and, through method provided by law at the time of its construction. p. 3 simply because the confessedly faulty method in use was the the adoption of the best methods for protecting life in such cases

unconstitutional retrospective legislation. commentary on the law, if municipalities were powerless to compel

under different code requirements does not constitute health or impair the safety of the community. . . . It would be a sad safety code to buildings that were constructed in a different period completed prior to enactment of the Safety Code. Application of a

related activity without providing compensation.”). As the Washington

require compensation.”

unreasonably require the discontinuance of a nonconforming use.” Although There is no such thing as an inherent or vested right to imperil the

nonconforming use. He cites penalized for violation of the Safety Code for remodeling that was reclassification of his property deprives him of a vested right to a N.H. 1006, 1009 (1982) (“Certainly, a town may proscribe harmful property-

promoting the health, safety and general welfare of the community, may not Dugas also recognized, however, that “[r]easonable regulations, aimed at claim, and the above-quoted language appeared in that context. Id. at 181-82. Dugas was a dispute over attorney’s fees and costs, it arose out of a takings

past use creates vested rights to a similar future use, so that a town may not (1984) (quotation, brackets and ellipses omitted), for the proposition that “a

The plaintiff next argues, relying upon Part I, Article 12, that the legislation, like the ban on omitted). Van Sickle v. Boyes, 797 P.2d 1267, 1271 (Colo. 1990) (citations

noted: code in this case is not retrospective. As the Supreme Court of Colorado has noncompliance with the Code before that date.” As such, the application of the

unfairness that results from changing the legal consequences of an

The purpose of the constitutional ban of retrospective and safety of the community. a city from enacting and enforcing ordinances to protect the health The constitutional ban of retrospective operation does not prevent

Fire Code to the [plaintiff’s] property” and did not impose a penalty “for Fire Marshal prospectively applied the correct classification under the State p. 4 [code].” during the time it takes to bring the building[] in[to] compliance with the

amended ordinance.

continued occupancy or use, of the building under certain specific criteria

e.g., N.H. Admin. Rules that would constitute an imminent danger., Saf-C 6008.01 (2003) (adopting, with modification, the The provisions of the code at issue were adopted by agency rule. See

certain conditions, “existing lawful use[s]” from the requirements of the

this is not a grandfather provision at all, but merely serves to “permit the and there is no imminent danger to life or property.” The State counters that preexisting buildings from code compliance so long as the use is not changed provides: The petitioner argues that this provision “specifically exempts occupied section 1-9.2, that prohibits the reclassification of his property. That section

(2) There exists no condition deemed hazardous to life or property

(1) The occupancy classification remains the same.

ordinance itself, which contained a grandfather clause exempting, under conditions are met: this Code shall remain in use provided that the following Existing buildings that are occupied at the time of adoption of

the ordinance as amended in 1971.”

The plaintiff next argues that the code has its own grandfather provision,

occupancy to no more than four unrelated persons. the instant case.

limitations and vested rights, but upon the terms of the amended zoning Our decision in White Enterprises was not based upon constitutional

“Fischers have acquired the right to continue this nonconforming use under individuals was a lawful use under the pre-1971 ordinance and held that the observed that the leasing of these units to groups of up to six unrelated

amendment to the Town’s zoning ordinance that limited lawful density of properties at issue here. The petitioner and others challenged a 1971 does not alter our conclusion. White Enterprises involved the same duplex Our decision in Durham v. White Enterprises, Inc., 115 N.H. 645 (1975),

of fire code application. vested right to a continued classification as a two-family dwelling for purposes this analysis. Accordingly, we conclude that the plaintiff does not have a City of Seattle v. Hinckley, 82 P. 747, 748-49 (Wash. 1905). We concur with provides:

p. 5 plan] approval.” will apply if more restrictive than those imposed at the time of [construction herein or referenced for existing buildings.

on new and existing buildings and that “[r]equirements for ‘existing buildings’ adoption of this Code shall comply with the provisions stated

(2002). The code, in turn, states that it “shall apply to both new and existing fire marshal, shall be allowed to make necessary alterations.” RSA 153:5 equipment” and provides that “[a] reasonable time, as determined by the state . . .

acknowledges that, in some instances, the code imposes different requirements Buildings in existence or permitted for construction prior to the

or rooming houses. property that would require him to comply with any code provisions for lodging his apparent argument is that section 1-9.2 prohibits a reclassification of his

rules [adopted thereunder] shall apply to existing buildings, structures or Alley, 137 N.H. at 42. The enabling legislation for the code states that “[t]he and with the purpose which the regulation is intended to serve.” Appeal of employed by the fire marshal, is “consistent with the language of the regulation requirements for ‘existing’ and ‘new’ construction.” The petitioner The interpretation of code section 1-9.2 advanced by the State, and no provisions for ‘grandfathering’ any property. [Rather,] [t]he code has specific

provisions for new, as opposed to existing, lodging or rooming houses; rather, appear to contend, however, that he is being required to comply with code intended to serve.” See NFPA 101 Life Safety Code A.1.4, A.3.3.25.3. He does not

The state fire marshal’s apparent interpretation of the code is that it “has

124 N.H. 545, 549 (1984) (citation omitted). construe an administrative rule as an attempt to do so.” Woodman v. Perrin, officials do not possess the power to contravene a statute and we will not

language of the regulation and with the purpose which the regulation is examine the agency’s interpretation to determine if it is consistent with the deference to an agency’s interpretation of its regulations, “[w]e still must whole. Appeal of Alley, 137 N.H. 40, 42 (1993). While we accord some (2000). In addition, we do not look at the rule in segments, but rather as a ordinary meanings, where possible. Appeal of Flynn, 145 N.H. 422, 423 When construing agency rules, we ascribe to the words used their plain and 6008.03 (2003) (adopting the 2000 edition of the NFPA 101 Life Safety Code). 2000 edition of the NFPA Fire Prevention Code); N.H. Admin. Rules, Saf-C not arbitrary, but is “rationally related to how individuals will respond in case

p. 6 States Constitution.

and bears a rational relationship to a permissible state objective.” existing buildings. 6

bring the building[] in[to] compliance with the [code].” permissible state objectives. The State argues that the “family” classification is “the continued occupancy or use, of the building . . . during the time it takes to and people within the state.” RSA 153:5. We readily conclude that these are arbitrary classification” in violation of the Fourteenth Amendment to the United and fire hazards for people in the state and for the general welfare of property unrelated individuals from sharing a duplex or single family home is . . . an NFPA 1 Fire Prevention Code, 2-1.112. The petitioner argues that “[r]estricting

equal protection challenge if the classification is “reasonable, not arbitrary . . . brought into compliance with the provisions in this edition for

buildings. Rather, as argued by the State, it permits, under certain conditions, As previously noted, the purpose of the code is the “protection from fire

with not more than three outsiders, if any, accommodated in rented rooms.” Belle Terre, 416 U.S. at 8 (quotations and brackets omitted).

648. Instead it is an “economic and social” regulation that will withstand an occupancies. It is the Code’s intent that existing buildings be Terre v. Boraas difference in the requirements between new and existing, 416 U.S. 1, 7 (1974); see also White Enterprises, 115 N.H. at The restriction does not involve a fundamental right. new occupancies. In other instances, however, there may be no See Village of Belle

buildings from compliance with code provisions applicable to existing

units in which each dwelling unit is occupied by members of a single family family dwellings to “include buildings containing not more than two dwelling between related and unrelated individuals. The code defines one- and two- The petitioner next argues that the code impermissibly discriminates

instances, provides specific exemptions from the requirements for

We conclude that section 1-9.2 does not exempt preexisting, occupied comply with 1-9.2 services, and degree of hazard. Occupied existing buildings shall commensurate with the magnitude of expenditure, disruption of

In the case of existing occupancies, the Code, in many

Finally, the NFPA Fire Prevention Code Handbook (2000) explains:

compliance with any part of this Code for existing buildings, Exception: A limited but reasonable time shall be allowed for used in the rulemaking process. p. 7 the plaintiff appears to contend that he was entitled to the same procedures

measures imposed.” He also notes that no “public hearing” was held. Thus,

the code, . . . [it] did not review the reasonableness of the specific fire safety

required.

appeals from the state fire marshal’s decisions shall be heard by the board.

aware . . . [of their] comings and goings and whatnot. state fire marshal. argues that while the board heard “testimony concerning the interpretation of BRODERICK, C.J., and DALIANIS, DU GGAN and GALWAY, JJ., concurred. probably going to be looking out for one another, making . . . being each individual is safe as opposed to a single family where they are

the existing rule. Thus, no public hearing on the rule’s reasonableness was points out, the state fire marshal did not adopt a new rule, but merely enforced preempted in 2002 by the adoption of RSA 155-A:11, which provides that See RSA 541-A:11 (Supp. 2006). As the State

determination of the state fire marshal to an adjudicative hearing before the The plaintiff acknowledges that a hearing was held before the board, but the Code has made some additional requirements to make sure the plaintiff was not entitled to a hearing by the fire marshal. contravene a statute, Woodman, 124 N.H. at 549, the rule must yield. Thus, See RSA 155-A:11, I (Supp. 2006). Since an administrative rule cannot

As the trial court correctly ruled, however, Rule Saf-C 6006.02 was

2004).

Rule, Saf-C 6006.02(f)(1), which entitled any person aggrieved by a should have been afforded a hearing under New Hampshire Administrative interest in one another, other than they’re . . . they may be friends, and the board did not afford him due process. He appears to contend that he Finally, the plaintiff argues that the procedures used by the fire marshal

state objective. We cannot say that the classification is not rationally related to a permissible

Well, because the people are not related, they have no vested

rationale behind the classification: of fire.” In testimony before the board, the Durham Fire Marshal explained the