2005-778, KENNETH MCKENZIE v. TOWN OF EATON ZONING BOARD OF ADJUSTMENT

The defendant, the Town of Eaton Zoning Board of

for the intervenor. Melendy & Lee, P.A., of Conway (Fay E. Melendy on the brief and orally),

on the brief and orally), for the defendant. Gardner, Fulton & Waugh, P.L.L.C., of Lebanon (H. Bernard Waugh, Jr.

brief and orally), for the plaintiff. to press. Errors may be reported by E-mail at the following address: Hastings Law Office, P.A., of Fryeburg, Maine (Peter J. Malia, Jr. on the

TOWN OF EATON ZONING BOARD OF ADJUSTMENT

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

editorial errors in order that corrections may be made before the opinion goes No. 2005-778 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Carroll 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 selectmen’s issuance of the building permit.

p. 2 granted. After a rehearing, the ZBA reversed its prior decision and affirmed the

period required by the ordinance. Burns filed for rehearing, which the ZBA issuance of the building permit because it was not issued within the one-year the selectmen’s decision to the ZBA. The ZBA reversed the selectmen’s

shed, which the selectmen granted on August 26, 2003. McKenzie appealed

such removal to be done at the expense of the owner.

provision. Burns subsequently applied for a building permit to rebuild her The selectmen notified Burns on August 19, 2003, of her duties under this of the shed and the debris on her property as required by Article VI, Section 2.

expiration of said one (1) year, the Board of Selectmen may cause

this case, wrote to the selectmen, requesting that Burns remove the remnants

one (1) year following the date of damage. Any time after the

failed to properly apply it. McKenzie asserted that the ZBA erred by relying

storm. On June 4, 2003, Kenneth McKenzie, an abutter and the plaintiff in

removed to clear ground level and put into safe condition within this permit is not granted such damaged structure shall be be detrimental or injurious to the neighborhood. If, for any reason, 2

the ordinance provision at issue was clear and unambiguous and that the ZBA

however, Burns had not rebuilt her shed or removed the debris left by the building the same size and on the same footprint as before.” By June 2, 2003, does not meet setbacks but is grandfathered so it can be replaced with a

as it was prior to destruction upon finding that the same will not percent of its floor area.

McKenzie appealed the ZBA’s decision to the superior court, arguing that

she wanted to rebuild her shed. The selectmen told her that “[t]he building

reconstruction or use of such building or structure substantially caused trees to fall on Burns’ shed and damage it in excess of seventy-five with this ordinance. The Board of Selectmen may permit the above and shall not be reconstructed or used except in conformity

In March 2003, Burns met with the Eaton Selectmen and indicated that

Article VI, Section 2 was still in effect on June 2, 2002, when a windstorm constitute discontinuance and abandonment under Article VI, 1.a.

pertinent part: Article VI, Section 2 of the Town of Eaton Zoning Ordinance, which stated, in nonconforming with the zoning ordinance. Also in 1989, the town passed

square feet and is not reconstructed within one (1) year shall the extent of seventy-five (75) per cent or more of the floor area in Any structure damaged by fire, deterioration, or other casualty to

requirements to 125 feet from the shore of the lake, thus making the shed shore of a lake abutting her property. In 1989, the town increased the setback abandonment” and “shall not be reconstructed or used except in conformity

p. 3 destroyed and is not rebuilt within a year “shall constitute discontinuance and

find the ordinance unconstitutional. found the ZBA’s decision unreasonable. The court also ruled that it could not

structure. The provision states that a nonconforming use that is sufficiently whether the owner has abandoned a destroyed nonconforming use or consideration of a property owner’s subjective intent when determining

subjective intent pursuant to the 3 buildings. The appellants’ second argument is that a consideration of failed to reconstruct her shed within one year of its destruction, the trial court 674:19 (1996) prohibits the application of new zoning ordinances to existing

their interpretation that the ordinance provision at issue precludes a

determining abandonment under the plain language of the ordinance. allowed the ZBA no discretion in determining abandonment. Because Burns have recognized that the provision would not apply to the shed because RSA ZBA should not have considered Burns’ intent because intent is not a factor for reasonable in the absence of the ordinance provision, the terms of the provision McKenzie additionally argues that the trial court was correct to rule that the ZBA, ruling that, while the ZBA’s consideration of intent may have been

because such a consideration was constitutionally required by appellants argue, the trial court erred in reversing the ZBA. Because the ordinance provision precluded a consideration of intent, the Before we address the parties’ arguments, we note that we agree with

had the trial court properly interpreted the ZBA’s decision, the court would effect of RSA 674:19 at trial, this issue is not preserved for our review. abandon her nonconforming use. The trial court reversed the decision of the facially unconstitutional under substantive due process. McKenzie responds that, because the ZBA and Burns did not raise the

unconstitutional and that it properly considered Burns’ subjective intent Constitution when determining abandonment of a nonconforming use.

ZBA actually found the provision unconstitutional as applied. They argue that, provision unconstitutional and had determined that Burns did not intend to They assert that the interpreting the ZBA’s decision as finding that the ordinance provision was On appeal, the ZBA and Burns first argue that the trial court erred by

arguing that it had the authority to decide whether the ordinance provision was

trial court agreed with both parties’ conclusions that the ZBA had found the

by declaring the ordinance provision unconstitutional. The ZBA disagreed, the nonconforming use. McKenzie also argued that the ZBA acted ultra vires 61 (1976), which considers whether the property owner intended to abandon upon the abandonment test established in Lawlor v. Town of Salem, 116 N.H. p. 4 4

defining abandonment. In this case, an ordinance directly applies and permits evidence or is legally erroneous.

however, we established that test in the absence of an applicable ordinance we will uphold the trial court’s decision unless it is unsupported by the considers the property owner’s intent to abandon a nonconforming use; The ZBA and Burns are correct that the Lawlor test for abandonment

558, 562 (2002). the burden of proving them unlawful. Morgenstern v. Town of Rye, 1 p. 4 47 N.H. (2005). Zoning ordinances are presumed to be valid, and the challengers bear therefore decline to address it. constitutional disputes. Baines v. N.H. Senate President, 152 N.H. 124, 129 v. Town of Plaistow, 152 N.H. 142, 144 (2005). We are the final arbiter of state involves a question of law, we review the trial court’s decision de novo. Taylor 797-98 (2005). Because the constitutionality of an ordinance provision

from a trial court’s decision regarding a zoning board of adjustment’s decision, sufficient for our review, but also of demonstrating that, before raising issues to Lawlor is constitutionally required to determine abandonment. On appeal The ZBA and Burns next contend that a consideration of intent pursuant

review it. provision. We conclude that this issue is not preserved for our review and court, we conclude that this issue is not preserved for appeal and decline to appellants have not shown that they raised the effect of RSA 67 p. 4 4:19 to the trial Prop. Mgmt., 151 N.H. 248, 250 (2004); Sup. Ct. R. 16(3)(b). Because the

appellants, the ZBA and Burns have the burden, not only of providing a record Envtl. Servs. v. Town of Bethlehem, 150 N.H. 606, 619 (200 p. 4 4). As the parties may not have judicial review of matters not raised at trial. N. Country the final arbiter of the interpretation of a zoning ordinance, Purchase Group, 150 N.H. 270, 274 (2003). It is a long-standing rule that

ordinances to buildings in existence prior to the enactment of the ordinance apply to Burns’ shed because RSA 67 p. 4 4:19 prohibits the application of zoning The ZBA and Burns first argue that the ordinance provision should not

throughout this opinion. Hampton, 139 N.H. 723, 726 (1995), we will apply our interpretation

precluding a consideration of intent in determining abandonment. As we are Jack, 153 N.H. 351, 35 p. 4 4 (2006). Accordingly, we interpret the ordinance as word “shall” makes enforcement mandatory. In the Matter of Bazemore & with this ordinance.” It is a general rule of statutory construction that the whit”); 4 Zeigler,

p. 5 power, which presents an issue of substantive due process.

abandon or even where there was an intent 5 factor of intent to abandon; it operates even where there was no intent to not to abandon or of an intent to reserve the right to resume, removes the exercise of the municipality’s police powers and, therefore, can withstand a

fundamental fairness of the ordinance.

nonconforming use owner’s lack of intent to abandon the use “matters not one

ordinance provision at issue is a constitutional exercise of Eaton’s police

conforming use, so that – under such ordinances – mere

specified period of time has lapsed, regardless of any reservation of an intent 121, 124 (2002). “In determining whether an ordinance is a reasonable

A substantive due process challenge to an ordinance questions the

retain the nonconforming status of the structure, and holding that the

(quotations omitted)). The task before us is to determine whether the stated time, becomes, of itself, sufficient to terminate a non-conforming use”

use, by fixing a Time Limit in such ordinances, for mere Non-Use of a nonintention as controlling in connection with abandonment of a non-conforming operates to prevent and prohibit resumption of a nonconforming use after a “[I]n many instances, ordinances have nullified the theretofore-adopted rule of in the Continuity of Nonconforming Use, 57 A.L.R.3d 279, 312 (1974) (stating, Resume Nonconforming Use of Premises After Voluntary or Unexplained Break period of nonuse that constitutes abandonment); Annotation, Zoning: Right to common law abandonment by enacting ordinances that give a specific time obtain a building permit and begin construction within one year in order to (stating that most municipalities have taken the guesswork out of determining New Hampshire Practice, Land Use Planning and Zoning § 8.04, at 128 (2000)

(2005) (stating, “A discontinuance provision which specifically states that it intent”);

Rathkopf’s The Law of Zoning and Planning § 74:3, at 74-11

an ordinance that required the owner of a destroyed nonconforming use to ordinance defines abandonment without a consideration of intent. Marc Lounge, Inc., 541 A.2d 1321, 1324 (Md. Ct. Spec. App. 1988) (enforcing concluded that a consideration of intent to abandon is not necessary when an Union Square Ass’n, Inc. v. the relevant zoning ordinance that prohibited the resumption of a abandonment applied, and applying instead the objective test established in 1995) (rejecting the appellant’s argument that the common law definition of

Gurganious v. City of Beaufort, 454 S.E.2d 912, 916-18 (S.C. Ct. App.

activity for the specified period constitutes an abandonment regardless of the requirement of intent to abandon – discontinuance of nonconforming act, but that “the inclusion of a lapse period in the zoning provision removes abandonment requires an intent to relinquish and some overt act or failure to “R” Us v. Silva, 676 N.E.2d 862, 867 (N.Y. 1996) (stating that, generally,

We note that courts of other jurisdictions, as well as legal scholars, have the abandonment of a nonconforming use without a consideration of intent. zoning is the reduction and elimination of nonconforming uses. p. 6 well established both in this state and in others that a legitimate purpose of provision reduces the chance that a nonconforming use will be rebuilt. It is

nonconforming uses not reestablished within a year are lost. Thus, the

nonconforming uses by establishing a time limit on their reconstruction. Those

continuation of nonconforming uses. The provision works to reduce plain language of this provision evinces a purpose to discourage the not be reconstructed or used except in conformity with this ordinance.” The

within one year “shall constitute discontinuance and abandonment” and “shall

is destroyed to the extent of seventy-five percent or more and is not rebuilt 6 focus is the first sentence, which states that any nonconforming structure that facts of this case. The part of the provision upon which the ZBA and Burns

any case. ordinance unconstitutional unless it could not be constitutionally applied in

rationally related to a legitimate governmental interest under the particular

reducing nonconforming uses is a legitimate governmental interest. least-restrictive-means analysis is not part of this test. uses as speedily as possible”). Accordingly, the ordinance’s purpose of is to restrict, rather than increase, nonconforming uses and to eliminate such The Law of Zoning and Planning § 74:11, at 74-38 (stating, “the spirit of zoning completely and rapidly as possible” (quotations omitted)); 4 Zeigler, Rathkopf’s nonconforming uses, and, ultimately, to reduce them to conformity as of zoning law is to carefully limit the enlargement and extension of the property. In a facial challenge to an ordinance, we will not rule the Hurley v. Hollis, 143 N.H. 567, 571 (1999) (stating, “the well established policy

applied to Burns’ shed. Accordingly, we address whether the provision is

whether legislation unduly restricts individual rights, and that a time of litigation.” basis test under the State Constitution contains no inquiry into legitimate governmental interest. We further hold that the rational

depends upon whether one challenges the ordinance on its face or as applied to

The appellants argue that the ordinance provision is unconstitutional as

ordinance to particular property under particular conditions existing at the constitutionality of the ordinance “in the relationship of the particular Constitution requires that legislation be only rationally related to a

Id. at 642. An as-applied challenge solely questions the

The only manner in which application of the rational basis test will differ

We . . . hold that the rational basis test under the State

in Boulders at Strafford v. Town of Strafford, 153 N.H. 633, 641 (2006): basis test.” Id. We recently clarified our analysis under the rational basis test substantive due process challenge, we have consistently applied the rational holding in

p. 7 property rights, we have not considered such alternatives, pursuant to our

under the facts of this case and to suggest an alternative approach. separately to offer some observations about applying the rational basis test review, I concur in the result reached by the majority. However, I write

goal of reducing nonconforming uses while being less restrictive of Burns’ shed. Although there may be ways in which the provision could further the and 12 of the State Constitution. does not violate substantive due process as applied to Burns’ nonconforming

Constitution and nonconforming uses derives primarily from Part I, Articles 2 upon the above reasoning, we conclude that the ordinance provision at issue

Town expressly argued in their briefs or in the notice of appeal that the trial

J., concurred specially. Our jurisprudence involving the relationship between the State relationship to the legitimate goal of reducing nonconforming uses. Based applied to Burns’ property, the ordinance provision bears a rational I within a year, the efficacy of the time limitation is evident. Accordingly, as

DUGGAN, J., concurring specially. Because neither Burns nor the against an unconstitutional taking of his nonconforming use.

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

case, which is substantive due process. Dugas was a takings challenge, as distinguished from the challenge in this request for attorney’s fees. Id. at 179-80. Further, the underlying challenge in sole issue in Dugas was whether the trial court erred in denying the plaintiff’s notwithstanding, Dugas is distinguishable from the instant case because the

required the town to pay attorney’s fees to the plaintiff for having to defend Conway, 125 N.H. 175 (1984), in support of their position. In Dugas, we We finally note that the appellants rely in part upon Dugas v. Town of

and increased the possibility that the shed, if rebuilt, would be rebuilt in town’s choice of means to accomplish its legitimate goals, so long as the means reduced the possibility that Burns would reconstruct her nonconforming shed Boulders, 153 N.H. at 638 (stating, “We will not second-guess the limit on Burns’ ability to rebuild her nonconforming shed, the provision

shed, bears a rational relationship to the legitimate goal. By imposing a time The remaining question is whether the provision, as applied to Burns’ that power.

p. 8 nullify arbitrary legislation passed under the guise of

power of the State and subdivisions thereof, and provisions are limitations upon the so-called police Const. part I, art. 12. These two constitutional

to have his enjoyment of property protected. N.H.

adversely with it. Similarly, every person has the right necessarily limit all subsequent grants of power to deal guarantee has been deemed so specific as to

(described above).

Hampshire Constitution guarantees all persons the State’s Constitution. Part I, article 2 of the New vests in a property owner has as its foundation this

the ordinance.

become valid, nonconforming uses under the first provision of the ordinance

ordinance provisions at issue.

implied – if not held – that property owners have [t]he fundamental and inalienable property right that 350 on the number of permits that would be issued. We agreed with the plaintiffs and held that

operate in substantially the same manner as they did on the date of adoption of Id. at 885. preexisting mobile homes would be grandfathered and could continue to operation of mobile homes in Hinsdale. The first provision provided that all plaintiffs’ vested property right in the 156-mobile home park sites which had permits for all of their mobile home sites, failed to take into account the permit ceiling, which had been reached before the plaintiffs could obtain

homes, all of which had been constructed prior to the enactment of the in Grondin owned a parcel of property that contained 156 sites for mobile have used broad language that carries constitutional implications. We have Id. at 885. The plaintiffs owners to obtain a special permit for their mobile homes and imposed a limit of

Id. at 884-85. The second provision required mobile home owners of the continuing use of their land.

were confronted with two provisions of a town ordinance that regulated the First, in Grondin v. Town of Hinsdale, 122 N.H. 882, 885-86 (1982), we

rights in vested nonconforming uses. Two examples are illustrative.

In past cases analyzing nonconforming uses under Articles 2 and 12, we

ordinances . . .” that would otherwise effectuate a taking by depriving property meant to protect property owners from a retrospective application of zoning Wickson, 146 N.H. at 330. “The right to maintain nonconforming uses is provide all persons the right to acquire, possess and protect property. See Town of Salem v. Wickson, 146 N.H. 328, 330-31 (2001). These two provisions p. 9 9

with this ordinance.” shall not be reestablished, restored, or repaired unless it is made to comply has been discontinued for a period of one year or that has been damaged 100%

frivolous or in bad faith.

inadequate.” (citations omitted)),

power to regulate the use of buildings and land through the enactment of As in Grondin, our language in Dugas was broad. We held that a town’s provision which provided, in part, “Any non-conforming sign the use of which 183. because his sign was a vested nonconforming use. Id. The plaintiff appealed, and we reversed. Id. at free-standing signs that could stand in front of a business was inapplicable that the Town’s enforcement and subsequent defense of the ordinance were of his sign on the pole, arguing that the Town’s limitation on the number of however, denied the plaintiff’s request for attorney’s fees because it did not find resulted in an unconstitutional taking. Id. at 17 p. 9 9. The superior court, front of a business. The superior court held that the ordinance provision quoted above

unreasonable if no public purpose supports it or if the amortization period is left standing for over a year. Id. The plaintiff appealed. requiring the discontinuance of a nonconforming use will be deemed unreasonably require the discontinuance of a nonconforming use. A provision

denied the plaintiff’s application for the permit, relying upon another ordinance

front of the plaintiff’s place of business, he sought a permit to reinstall the face

an ordinance limiting the number of free-standing signs that could be placed in

sign was removed from the pole to which it had been affixed, but the pole was See Dugas v. Town of Conway, 125 N.H. 175 (1 p. 9 984). In Dugas, the face of a may “create vested rights to a similar future use, so that a town may not involving an ordinance that regulated abandonment of nonconforming uses. Later, we applied the types of principles articulated in Grondin in a case

Strafford v. Town of Strafford, 153 N.H. 633, 641 (2006). the police power of the municipality.”), other.” (quotation omitted)), overruled on other grounds by Boulders at considered together as interdependent, the one qualifying and limiting the 4 p. 9 97, 502 (1977) (“The police power and the right to private property must be

Constitution apply to nonconforming uses and holding that a past use of land provision, that the protections of Part I, Articles 2 and 12 of the State N.H. 1006, 100 p. 9 9-10 (1982) (stating, in the context of an amortization ordinance

classification of his property, because all property is held in subordination to property owner has no right to the continued existence of any particular zoning Morgenstern v. Town of Rye, 147 N.H. 558, 562 (2002) (“Generally speaking, a Id. at 885-86 (quotations, citations and brackets omitted). Compare id. with p. 10 10

brief or raise the issue). Such an analysis would provide a stronger foundation

under the rational basis standard); that substantive due process challenges to zoning ordinances are evaluated be fundamental. allegedly interferes with a right (or rights) we seem to have specifically held to

Articles 2 and 12, of the fundamental rights (vis-à-vis nonconforming uses) protected by Part I, applied when ordinance provisions are challenged because the parties did not 124, 129 (1995) (refusing to reconsider the level of review that should be

(suggesting that given an appropriate occasion, we should review our holding Town of Lyme, 139 N.H. 637, 645-46 (1997) (Brock, C.J., concurring specially) scrutiny. This is especially true where, as here, the regulation at issue challenge); or (3) adopting a heightened level of review, see, e.g., Casperson v. Conway, 135 N.H. 576, 578 (1992) (explaining in context of equal protection power circumscribes the fundamental rights at issue, cf. Asselin v. Town of 339-46 (Colo. 1994) (Vollack, J., concurring); (2) explaining how the police explanation as to why we do so. cf. Robertson v. City and County of Denver, 874 P.2d 325,

clarifying our earlier case law by more narrowly and clearly defining the nature Exploring the nature of the right infringed could involve, for example: (1)

such matters are entitled to review under strict judicial scrutiny.”).

and based upon that analysis, explain why we apply a particular level of process jurisprudence to first explore the nature of the right allegedly infringed, 124 (2002). It would be more consistent with our general substantive due

to local ordinances that regulate vested nonconforming uses without some appl[y] the rational basis test” in evaluating substantive due process challenges Given such precedent, it is unclear whether we ought to “consistently

(“[G]enerally, when governmental action impinges upon a fundamental right, See Akins v. Secretary of State, 154 N.H. ___, ___, 904 A.2d 702, 706 (2006) fundamental rights, the rational basis standard generally is not applicable. then so too does the regulation in this appeal. And, if regulations interfere with If, under Dugas, such a regulation implicates fundamental property rights, at issue here, interfered with fundamental rights. Id.; see also id. at 182-83. that the regulation at issue there, which is materially similar to the regulation also fundamental under our State Constitution. Moreover, in Dugas, we stated speak of effectuating a taking of property rights that are not only vested but claims in both Grondin and Dugas, both cases could reasonably be read to Although, as the majority correctly observes, we were addressing takings

determined the plaintiff was entitled to attorney’s fees. Id. at 183. property rights of a plaintiff.” Id. at 180 (emphasis added). Therefore, we permit for the sign as an allegation of interference “with the fundamental Constitution, id. at 181-82, and we described the Town’s refusal to issue a zoning ordinances is circumscribed by Part I, Articles 2 and 12 of the State result in a taking.

p. 11 presumption of abandonment in situations where the cessation of use was contingencies. Moreover, under our precedent, the ordinance likely would “use-it-or-lose-it” provision, it would fail to account for such reasonable impractical. To the extent an ordinance is read to contain a strict one-year

designed to prevent resumption of a nonconforming use.”

ordinance] has passed, but avoids a due process challenge by not applying the

type of natural disaster or catastrophe could make rebuilding within a year nonconforming use.”

presence of an ordinance containing a specified period of discontinuance nonconforming use before its resumption can be prohibited; this despite the first approach is “that there must be shown an intent to abandon a abandonment after the designated period of nonuse [as set forth in an

a family business may have difficulty in obtaining financing to rebuild; or some discontinuance period of time alone prevents the resumption of the

confiscatory and discussed three approaches to analyzing such provisions. The ultimately adopted by the North Dakota Supreme Court, “presumes

knowing that there has been property damage or that repairs need to be made; proving intent to abandon such a use, and, therefore, passage of the required example, a soldier may be deployed overseas for over a year and have no way of period in a zoning ordinance on nonconforming uses removes the necessity of reasons, none of which suggest that it should be deemed abandoned. For N.W.2d at 839. The second approach is “that the inclusion of a discontinuance

an ordinance dealing with abandonment of nonconforming uses was In City of Minot, the North Dakota Supreme Court considered whether

S.E.2d 419 (Ga. 1990). Fisher, 212 N.W.2d 837 (N.D. 1973); Ansley House v. City of Atlanta, 397 municipality’s interest in eliminating nonconforming uses. See City of Minot v. nonconforming use may not be repaired for over a year for any number of accommodates those rights while at the same time accounting for a individual property rights involved, some courts have adopted a rule that

resolution of them must be left for another day. A strict one-year “use-it-or-lose-it” ordinance provision is unduly rigid. A

have been on point and perhaps even dispositive. Further, if a takings claim process one. If a takings claim had been clearly raised in this case, Dugas may appropriately lend themselves to a takings analysis than a substantive due Ordinance provisions like the one at issue in this appeal more

appeal, however, the parties have not raised or briefed these issues; hence, to explain why we apply a particular level of scrutiny in any given case. In this issue is squarely raised.

p. 12 adoption of such an approach under more compelling facts where the takings

reached by the majority because I do not read its opinion as foreclosing the that the cessation of use was beyond her control. I concur in the result overcome that presumption by offering facts or argument that demonstrated

Then, the ZBA would have been required to permit Burns to attempt to

that Burns’ nonuse of her shed rendered it an abandoned nonconforming use.

respectful of land ownership rights, at least as we have articulated them. 2 of the Town of Eaton Zoning Ordinance would have created a presumption

Supreme Court in

third approach would be not only the most practical, but also the most If the third approach were applied in the present case, Article VI, Section

was confiscatory. See City of Minot, 212 N.W.2d at 841. By so doing, we would have been able to avoid concluding that the ordinance would have protected the rights that gave rise to the taking at issue in Dugas. Eaton Zoning Ordinance as establishing a rebuttable presumption, which

raised by the defendant, we could have followed the lead of the North Dakota e.g., Dugas, 125 N.H. at 181-83. Thus, if a takings claim had been clearly

The North Dakota Supreme Court’s reasoning is persuasive as to why the

majority view). 397 S.E.2d at 421 (adopting the presumption approach and describing it as the beyond the control of the property owner.” Id. at 841; see also Ansley House,