New Hampshire Municipal Association
New Hampshire Municipal Association

Court Update

Protest Petition Signers Not Limited to Town Property Owners

Rene R. Smagula v. Town of Hooksett
No. 2003-076, 8/25/2003

In this case, the Court ruled that the signatures of owners of property within 100 feet immediately adjacent to an area affected by a proposed zoning change are valid even though the property is in another municipality.

RSA 675:5 forces a two-thirds majority vote to pass a zoning amendment, rather than a simple majority, when a protest petition is submitted to the governing body with the signatures of either the owners of 20 percent of the area of the lots included in the proposed change, or “the owners of 20 percent of the area within 100 feet immediately adjacent to the area affected by the change or across the street from such area.”

When a proposed Hooksett zoning ordinance received 58 percent of the vote, town officials declared it had passed, even though a protest petition had been submitted. Hooksett officials declared the protest petition invalid when they determined, among other things, that 7.7 acres of property in Allenstown could not be included in the calculation to determine 20 percent of the area within 100 feet immediately adjacent to the area affected by the proposed zoning change.

The petitioners appealed the town’s decision to the superior court, which said the town was correct to exclude the Allenstown property in the calculation of the 20 percent area. The lower court also said the town’s information was more accurate in calculating the 20 percent area, pointing out that the petitioners relied only on town tax maps to calculate the 20 percent, while the town didn’t limit itself to the tax maps but also relied on the town’s Geographic Information System (GIS) as well as data from an engineering company.

The petitioners appealed to the Supreme Court, which focused on two issues: whether the Allenstown petitioners should have been excluded and whether the town should have been permitted to rely on information other than the town’s tax maps to calculate the 20 percent area.

The town’s argument relied on language of the statute that requires property owners to identify themselves on the petition “by name and address, and by address of the property involved, or by lot and map number, or by whatever other means is used within the town or village district to identify the land in question, so that the selectmen or commissioners may identify such owners as interested and affected parties.” (Emphasis added.) The town argued that because the statute said “the town or village district,” rather than “their,” the legislature intended to limit the signers of protest petitions to owners of property within the municipality.

The Court rejected the argument. “The purpose of RSA 675:5, II (a) is not to define the class of eligible petition signers, but to establish a standard by which ‘the selectmen or commissioners may identify such owners as interested and affected parties.” (Emphasis added.) The Court also said RSA 675:5 plainly “encompasses all land within 100 feet of the area subject to the change, regardless of whether it is within the same municipality.”

The town argued that including the Allenstown property in the protest petition calculation would create an absurd and unjust result, but the Court disagreed and harkened back to its landmark affordable housing decision, Britton v. Town of Chester, 134 N.H. 434 (1991), where it said, “When an ordinance will have an impact beyond the boundaries of the municipality, the welfare of the entire affected region must be considered in determining the ordinance’s validity.”

The Court said, “Because the invisible boundary between Allenstown and Hooksett does not cause Hooksett’s proposed change to affect the abutting Allenstown property owners any less than the abutters in Hooksett, it is logical that non-resident owners should share the same protection against ‘unwanted or ill-considered changes in zoning ordinances’ that residents have.”

As to whether the town should have been permitted to rely on information other than the tax maps for calculating the 20 percent area, the petitioners argued that they were entitled to rely only on the town’s tax maps. The lower court had found that the GIS and other outside information the town relied on was more accurate than the tax maps. The Court sided with the petitioners, saying that RSA 675:5 does not require the petitioners “to prove the objective accuracy of their land area calculations.” The Court noted that RSA 31:95-a, I(b), II(a) and IV require municipalities to keep accurate tax maps, adding, “While the tax maps may fall short of the exacting standard required of individual deed descriptions, they are more than sufficient to determine whether a protest petition meets the threshold of community support required by RSA 675:5, I-a.”

The town argued that the statute does not prohibit the town from relying on information other than the tax maps, but the Court said the town’s position “would effectively nullify the statutory intent that landowners rely upon tax maps in preparing their petition.”

Please be advised that the foregoing case summary is based upon a Supreme Court slip opinion. Slip opinions are subject to change following motions for rehearing and/or motions for reconsideration. The Court may also modify the opinion without motion. The final version of the Court’s opinion is that which appears in the New Hampshire Reports.

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