2006-797, SUZANNE K. DOYLE & a. v. TOWN OF GILMANTON & a.

The defendants, the Town of Gilmanton and the Gilmanton

orally), for the defendants. Upton & Hatfield, LLP, of Concord (Barton L. Mayer on the brief and

and Mark H. Puffer on the brief, and Mr. Leeming orally), for the plaintiffs. to press. Errors may be reported by E-mail at the following address: Preti, Flaherty, Beliveau & Pachios, PLLP, of Concord (Simon C. Leeming

editorial errors in order that corrections may be made before the opinion goes No. 2006-797 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Belknap Readers are requested to notify the Reporter, Supreme Court of New ___________________________

THE SUPREME COURT OF NEW HAMPSHIRE

page is: http://www.courts.state.nh.us/supreme. 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 p. 2 22 as would not be subdivided from Lot 1.

minimum building site size requirement.

the plaintiffs could use Lot 3 as a wood lot, but, if they opted not to do so, it (

Bartlett, 133 N.H. 618, 6 p. 2 20 (1990). In so doing, we are not bound by the v. Roberge, 142 N.H. 905, 908 (1998); Lemm Development Corp. v. Town of interpretation of the regulations. The Superior Court (subdivision regulations is a question of law, which we review de novo. Bussiere We address the defendants’ latter argument first. The interpretation of interpretation, the board determined that Lots 2 and 3 did not meet the contain a minimum of 30,000 contiguous square feet of suitable soil. the plaintiffs’ proposed lots were insufficient. appeal, arguing that the board did not violate the Right-to-Know Law, and that not meet the minimum building site size requirement. The defendants because it had only about half of the required area. The board determined that Smukler, J.) reversed the board’s decision that the plaintiffs’ proposed lots did disclosed. Subsequently, following a hearing on the merits, the Superior Court “just fell short of compliance.” The board, however, denied the waiver for Lot 3 session, and, therefore, the minutes of the non-public session should be be waived. The board granted the plaintiffs’ waiver request for Lot 2 because it violated RSA chapter 91-A, the Right-to-Know Law, when it held a non-public that the attorney’s written opinion should not be disclosed, but that the board

things, disclosure of the written opinion of the town’s attorney regarding the The plaintiffs appealed to the superior court, and requested, among other setbacks from the calculation of the size of a building site. Applying this (regulations). To meet the regulations, each proposed building site must determined, contrary to the plaintiffs’ request, that the regulations excluded building site size requirement. Following this non-public session, the board the written opinion of its attorney regarding the interpretation of the minimum

in the alternative, requested that the minimum building site size requirement The plaintiffs contested the board’s interpretation of the regulations, and,

building site size required by the Town of Gilmanton’s Subdivision Regulations led the board to question whether the proposed lots would meet the minimum extensively by wetlands. Indeed, the extent of the wetlands on the entire parcel its March 9, p. 2 2006 meeting, the board went into a non-public session to discuss whether a proposed lot meets the minimum building site size requirement. At whether the land covered by setbacks ought to be included when calculating proposed subdivision. During these hearings, there was some debate about The board held a series of public hearings regarding the plaintiffs’

Gilmanton Subdivision Regulations § VI(C)( p. 2 2).

difficulty identifying land suitable for building because the lot is covered fifty-two remaining acres. Despite the large size of Lot p. 3 3, the plaintiffs had 3

building site size. concluded that setbacks could be included when calculating the minimum both requires and defines setbacks. Cf. Cohen v. Town of Henniker, 1 p. 3 34 N.H. purpose.” The superior court, therefore, reversed the decision of the board and all plats to comply with the Gilmanton Zoning Ordinance (ordinance), which square feet for buildings alone is absurd and serves no legitimate land use Therefore, even though the regulations do not mention setbacks, they require however, the superior court found that the requirement of “30,000 contiguous pertinent State or local laws, regulations or ordinances.” Id. § VI(A)(1). plats to conform not only with the regulations, but also with “any other specifically mention setbacks at all. Nevertheless, the regulations require all whether setbacks are included in calculating that area and, in fact, do not regulations. of land on which a building is placed. The regulations do not, however, state As noted, the regulations define a “building site” as that part of a parcel

reading of the regulations was “textually correct.” Despite this conclusion, On appeal from the board, the superior court concluded that the board’s to bedrock. A soil profile shall be submitted for each test pit. The Board may require a test pit on each lot to verify the depth determined that Lot p. 3 3 had insufficient contiguous area to satisfy the required by the extensive wetlands on the plaintiffs’ property, the board within setbacks, including wetlands setbacks. Because of the setbacks contiguous square feet, an applicant could not include the land contained concluded that when calculating whether a lot contains the required 30,000 building is placed.” Id. § IX. In interpreting the regulations, the board defined as: “That portion of a lot, tract or parcel of land upon which a single Gilmanton Subdivision Regulations § VI(C)(2). A “building site,” in turn, is

a. There shall be at least p. 3 3 feet of natural soil above bedrock.

contiguous square feet which meets the following criteria: within the required lot size a minimum building site of p. 3 30,000 In addition to the provisions above, each lot shall also contain

The regulations state, in relevant part:

Danville, 142 N.H. 775, 778 (1998). term in issue, however, that definition will govern. Id.; Cormier v. Town of of the language. Bartlett, 1 p. 3 33 N.H. at 620. Where the regulations define a regulations should be construed according to the common and approved usage Town of Warner, 152 N.H. 74, 79 (2005). Thus, the words and phrases of the traditional rules of statutory construction govern our review. Id.; Harrington v. interpretation of the planning board. Bartlett, 133 N.H. at 620. In general the involve dangers to health, safety or prosperity due to lack of water supply or

p. 4 including: protecting against scattered or premature subdivisions that would

built within a setback as a setback cannot be part of a “building site.” 4

permits the adoption of subdivision regulations that serve various goals, regulation serves a legitimate land use purpose, RSA 674:36, II (Supp. 2006) absurd and served no legitimate land use purpose. As to whether the

structures, such as a garage, on a “building site” does not allow them to be where structures are not permitted. Thus, allowing a house and its attendant permitted structures can be built in a setback. Setbacks, as noted, are areas “building site” as permitting accessory buildings does not mean that any of the

“textually correct,” the superior court determined that the regulation was both Despite concluding that the board’s reading of the regulations was

a proposed building site meets the minimum building site size requirement.

accompanies a house, their interpretation of “building site” as excluding setbacks. Interpreting construction of a house, but also to provide for the development that generally that the definition should not be read literally, however, does not undermine requirement is not simply to provide sufficient suitable space for the its attendant structures such as a garage. The defendants’ acknowledgment The parties agree that the purpose of the 30,000 contiguous square foot “single building,” it actually encompasses the area covered by a building and As noted, the parties agree that despite the definition’s use of the phrase

improvements. We do not agree. acknowledge that the definition includes accessory buildings and the area covered by setbacks should not be included when calculating whether setbacks should be included, Gilmanton Subdivision Regulations § IX, but later of “building site,” we conclude, as did the board and the superior court, that site” literally as permitting a “single building” when determining whether defined in the regulations. Because setbacks are excluded from the definition According to the plaintiffs, the defendants first read the definition of “building building or other structure is placed, it cannot be part of a “building site” as e.g., a garage, deck, swimming pool, or septic system.

attempting to define the term “building site” in multiple, inconsistent ways. and a line running parallel to it, which “shall contain no structures.” The plaintiffs contend that this reasoning is flawed because the Town is

added). Logically, therefore, because a setback cannot be an area where a attached to something having a fixed location on the ground.” Id. (emphasis “Anything constructed or erected with a fixed location on the ground or Gilmanton Zoning Ordinance art. XVI. The ordinance defines structures as:

The ordinance defines a setback as that area between the property line

compliance with zoning ordinance a requirement for subdivision approval). 425, 429 (1991) (concluding that provision of subdivision regulations made building site area. p. 5 appurtenant structures and should not be included within the minimum

Therefore, the setbacks may not be used for the erection of a building or its

Septic systems and other “underground objects” fit within this definition. on the ground or attached to something having a fixed location on the ground.” structures broadly as: “Anything constructed or erected with a fixed location 5

purpose.

ordinance prevents the erection of a “structure” within a setback and defines construction and should thus be included in the calculation. As noted, the disagree with the trial court’s conclusion that setbacks may be used for regulations was correct and that the superior court erred in reversing the 30,000 square feet does not mean that the regulation is absurd. Moreover, we For the above reasons, we conclude that the board’s interpretation of the

conclude that requiring a minimum lot size serves a legitimate land use ordinances and will have sufficient areas for sanitary facilities. Therefore, we that the lots will have proper areas for drainage, will conform with the excluding it from the minimum building site was absurd.

well. Thus, the fact that a typical house’s footprint is substantially less than supporting a house and its attendant structures such as a septic system or of a typical home was misplaced. The building site must be capable of structures, not merely a single house, the trial court’s focus upon the footprint lots have a certain minimum contiguous area for building purposes ensures to the trial court, because the setback area could be used for construction, Because a purpose of the regulation is to permit the erection of various systems and other underground objects” in the setback area. Thus, according although setbacks may not contain buildings, landowners may place “septic the regulation was absurd. We agree. about 2,000 square feet, is absurd. Additionally, the trial court found that court’s focus upon the footprint of a typical house led it to incorrectly find that that generally accompanies a house. According to the defendants, the trial contiguous square foot requirement is to provide space for the development regulation. As noted above, the parties agree that one purpose of the typical footprint of a house because such focus ignores the purpose of the The defendants contend that the trial court erred in focusing upon the

for on-site sanitary facilities, RSA 674:36, II(i). The Town’s requirement that ordinances and to assure such additional areas as may be needed for each lot prescribing minimum areas of lots so as to assure conformity with local zoning contiguous square feet of building area, when a typical house has a footprint of As for its second conclusion, the trial court found that requiring 30,000

can be used for building without danger to health, RSA p. 6 674:36, II(h); and drainage, RSA 674:36, II(a); requiring that the land be of such character that it 6

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

the ground stated, we need not reach the other issue raised by the defendants. decision of the board. Because we reverse the order of the superior court on