2007-202, GLENN L. TONNESEN v. TOWN OF GILMANTON

The petitioner, Glenn L. Tonnesen, appeals the order of the

Serge on the brief, and Mr. Serge orally), for the respondent. Upton & Hatfield, LLP, of Concord (Barton L. Mayer and Matthew R.

Robert D. Ciandella on the brief, and Mr. Ciandella orally), for the petitioner. to press. Errors may be reported by E-mail at the following address: Donahue Tucker & Ciandella, PLLC, of Exeter (Robert M. Derosier and

editorial errors in order that corrections may be made before the opinion goes No. 2007-202 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 2

permitted accessory use. person who resides on such land shall be considered a valid and offs and landings on private land by the owner of such land or by a

trial court’s ruling on his declaratory judgment petition. special exception. On appeal to this court, the petitioner challenges only the and phrases. ordinance from its construction as a whole, not by construing isolated words

specifically proscribed by local land use regulation, aircraft take regulate and control accessory uses on private land. Unless are located unincorporated towns or unorganized places may the local legislative body of a city, town, or county in which there In its exercise of the powers granted under this subdivision,

RSA 674:16, V provides:

Id. denied his petition for declaratory relief and affirmed the ZBA’s denial of a

declaratory judgment. Following a hearing on the merits, the superior court (quotation omitted). Moreover, we determine the meaning of a zoning subsequent motion for rehearing. The petitioner appealed and sought a meaning was intended,” whole. Feins v. Town of Wilmot, 154 N.H. 715, 719 ( p. 2 2007) a landing area for his helicopter. The ZBA denied this request and his usage of the language, the legislature’s intent as expressed in the words of the statute considered as a id., “unless it appears from their context that a different and phrases of an ordinance according to the common meaning and approved which we review Town of Greenland, 151 N.H. 600, 605 (2004). Thus, we construe the words We apply these same rules of construction to zoning ordinances. Fox v.

( p. 2 2006). not see fit to include. In the Matter of Sarvela & Sarvela, 154 N.H. 426, 436 what the legislature might have said or add language that the legislature did interpret legislative intent from the statute as written and will not consider construe that language according to its plain and ordinary meaning. Id. We Id. We first look to the language of the statute itself, and, if possible,

of adjustment (ZBA) grant him a special exception to use part of his property as 713 ( p. 2 2007). In matters of statutory interpretation, we are the final arbiters of

de novo. N.H. Dep’t of Envtl. Servs. v. Marino, 155 N.H. 709,

violates RSA 674:16, V. The interpretation of a statute is a question of law, The petitioner’s sole argument on appeal is that the town’s ordinance

On July 17, p. 2 2006, the petitioner requested that the town’s zoning board

two other districts. districts, and is permitted only by special exception in the rural district and p. 3 3

to aircraft takeoffs and landings ‘with exactness and precision.’”

proscribe[ ]” the use of land for this purpose. In

takeoffs merely because it fails to list this use as a permitted use.

held that this means that in prohibiting this activity, the ordinance “must refer omitted)). In cases decided after Spengler, 144 N.H. at 165, we primary use and customarily or habitually associated with it” (citations land for this purpose, RSA 674:16, V provides that it must “specifically Spengler, 144 N.H. at 166. Rather, if a municipality wishes to prohibit use of

sufficient evidence to make a it will not be deemed to prohibit the use of land for aircraft landings and Under RSA 674:16, V, however, even if a zoning ordinance is permissive, that the case turned on whether the heliport qualified as an accessory use. (1999). exception or a variance or the heliport had to be an accessory use. Windham, 129 N.H. at 27; see Hannigan v. City of Concord, 144 N.H. 68, 70 primary uses or can be found to be accessory to a permitted use.” Town of permitted.” zoning ordinances “prohibit uses of land unless they are expressly permitted as

(1986) (an accessory use is “occasioned by and subordinate to the permitted provide permission.” accessory use. Id. at p. 3 377; see Town of Windham v. Alfond, 129 N.H. 24, 28-29

We explained that, on remand, the defendant had the burden of submitting

not mention helicopters, using land for this purpose was permissible. Because the defendant had neither a special exception nor a variance, we ruled court, which denied the request, ruling that because the Bedford ordinance did Id. heliport to be a permissible use, we held, he had to have obtained a special defendant’s land for a heliport and issued the necessary permits. Id. (quotation, brackets and ellipses omitted). For the defendant’s prevent uses except those expressly permitted or incidental to uses so Id. at p. 3 376. As we explained, a permissive zoning ordinance is “intended to prohibited heliports because it did not expressly list them as a permitted use.

issue, which RSA 674:16, V was intended to resolve. was a permissive zoning ordinance, which “prohibits uses for which it does not In overruling the trial court, we determined that the Bedford ordinance

ordinance.” Id.

The plaintiff, an abutting landowner, requested an injunction from the superior

Bedford officials ruled that the ordinance did not forbid the use of the silent as to the use of land for helicopter takeoffs and landings. Id. at p. 3 375-76. heliport in Bedford. Treisman, 126 N.H. at 373. The Bedford ordinance was Kamen, 126 N.H. 372 (1985). Treisman concerned the proposed use of a

Aircraft use on private land has, from time to time, been a contentious

Spengler v. Porter, 144 N.H. 16 p. 3 3, 165 (1999).

are valid and permitted accessory uses unless specifically proscribed by local “[T]he statute clearly states that aircraft takeoffs and landings on private land p. 4 4

construe statutes as a whole, private land provided by the first sentence of RSA 67 p. 4 4:16, V. Because we While the petitioner asserts that we decided this issue in regulate or control an accessory use by way of a special exception, we disagree. extent that the petitioner contends that, as a general principle, a town may not

long as the accessory use is incidental to a permitted principal use,” we were seeking to engage in an accessory use need not apply for a special exception, so he is mistaken. In that case, when we stated that “[a]n owner of property statute would negate the grant of authority to regulate accessory uses on Fox, 151 N.H. at 606,

the means by which a town may regulate use of land for this purpose. To the Contrary to the petitioner’s assertions, RSA 67 p. 4 4:16, V is silent regarding

landowners to obtain a special exception. accessory uses, aircraft takeoffs and landings can be regulated by requiring N.H. p. 4 484, 487 (1996), we conclude that, like other valid and permitted

convert it into an invalid or prohibited accessory use. To so construe the permitted accessory use.” Imposing conditions upon an accessory use does not provides that aircraft takeoffs and landings shall be considered a “valid and regulations. This is made clear by the last sentence of RSA 67 p. 4 4:16, V, which this purpose, but may accept only those proposals that comply with its aircraft takeoffs and landings, it need not accept every proposed use of land for statute’s plain terms, if a town has not expressly prohibited use of land for “regulate and control” use of land for this purpose. In other words, under the of land for aircraft landings and takeoffs or permit this use as of right, but may private land. By definition, therefore, a town need not completely prohibit use 674:16, V expressly allows a town to “regulate and control” accessory uses on The petitioner has set up a false dichotomy. By its plain language, RSA

to engage in this activity without first seeking permission from the ZBA.” explains: “As an accessory use, [the petitioner] has a right [under the statute] this purpose outright or to permit it as a matter of right. As the petitioner asserts that RSA 67 p. 4 4:16, V requires the town either to prohibit use of land for land for aircraft takeoffs and landings only by special exception. The petitioner 674:16, V because it allows landowners in the rural zoning district to use their The petitioner contends that the town’s zoning ordinance violates RSA

2000). Hampshire Practice, Land Use, Planning and Zoning § 9.03, at 1 p. 4 40 (3d ed. and subordinate to the primary use of the property). See 15 P. Loughlin, New prove that using property in this way is an accessory use (i.e., is occasioned by to use their property for aircraft landings and takeoffs need not plead and uses as a matter of law. Thus, pursuant to RSA 674:16, V, landowners seeking private land by the land’s owner or another residing on the land are accessory Further, RSA 674:16, V establishes that aircraft takeoffs and landings on landings are acceptable and in areas where they are not. p. 5 protect the rights of landowners both in areas where aircraft takeoffs and petitioner’s interpretation. Through the use of special exceptions, a town can

protects the rights of all landowners, as it avoids the dilemma presented by the

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

of land by neighboring landowners in areas where aircraft takeoffs and and express no opinion as to whether the ordinance is lawful in other respects. acceptable; full permission could unnecessarily restrict the use and enjoyment confine our analysis to the issues raised by the petitioner on appeal, however, of land by landowners living in areas where aircraft takeoffs and landings are special exception before using their land for aircraft takeoffs and landings. We ordinance does not violate RSA 674:16, V by requiring landowners to obtain a For all of the above reasons, therefore, we hold that the town’s zoning

property. A flat prohibition could unnecessarily restrict the use and enjoyment unnecessarily limit the right of property owners to use and enjoy their zoning district or permit it throughout the district. Either choice could town to two choices – prohibit aircraft takeoffs and landings throughout a and Federal Constitutions. To construe RSA 674:16, V as the petitioner requests would limit the fundamental right to use and enjoy one’s property protected by both the State § 23.02, at 288-89. acceptable,” are commonly regulated by requiring a special exception. Id. neighborhoods, or too much noise, but which in other areas would be For example, “[u]ses which might generate too much traffic for certain E. Kelly, they might pose serious problems.” 15 Loughlin, supra § 23.01, at 285-86. These uses are not permissible as a matter of right because in some situations are potentially incompatible with uses usually allowed in a particular district. providing for types of land use which are necessary and desirable, but which special exceptions was developed in early zoning ordinances “as a technique for

Finally, we believe our construction of RSA 674:16, V comports with the

accessory uses may be permitted by special exception). v. Pellegrino, 115 N.H. 619, 620 (1975) (under zoning ordinance at issue,

Zoning and Land Use Controls ch. 44, at 44-1 (2007); see also Gratton

accessory uses are allowed only as uses by [special exception]”); 8 P. Rohan & Kelly, Zoning and Land Use Controls ch. 40A, at 40A-1 to 40A-2 (2007) (“[s]ome requiring property owners to obtain special exceptions. See 7 P. Rohan & E. broadly announcing a new rule that a town may not regulate accessory uses by describing the zoning scheme at issue. Fox, 151 N.H. at 606. We were not