New Hampshire Municipal Association
New Hampshire Municipal Association

Court Update

Town Site Plan Authority Not Preempted by OHRV Statute

Town of Lyndeborough v. Boisvert Properties, LLC
No. 2003-576, 4/21/2004

The New Hampshire Supreme Court held in this case that municipal site plan review authority over the development of off-highway recreational vehicle (OHRV) trails on private land is not preempted by state law (RSA Chapter 215-A). The Boisverts own about 500 acres on which they proposed to develop a recreation area that would include OHRV trails, a paintball park and overnight camping facilities in a rural zoning district that permitted recreational facilities but prohibited camping. In 2001, the planning board denied their site plan application because of the zoning ordinance prohibition on camping facilities. The Boisverts sought a variance from the zoning board of adjustment, which was denied and was eventually appealed to the superior court. When the superior court upheld the ZBA decision, the Boisverts withdrew the remaining portions of their site plan application, but listed their property as an OHRV trails with the state Department of Resources and Economic Development (DRED) under its statewide trails program as provided for in RSA Chapter 215-A. They also granted an easement to use their land to the Granite State ATV Association for all-terrain vehicle use.

The board of selectmen informed the property owners that site plan approval was required before the property could be used for ATV trails. When the Boisverts continued to allow ATV use on their property, the towns filed a petition for injunctive relief in superior court. The Boisverts argued that because they had listed their property with DRED, it was exempt from the town’s site plan review requirement. The superior court agreed, finding that RSA Chapter 215-A preempted local site plan regulation for trails on private land that have been accepted as part of the state OHRV trail system.

The town appealed the court’s decision, arguing that RSA Chapter 215-A did not preempt local site plan authority. The Court restated its previous rulings on preemption of local ordinances that towns cannot regulate a field that has been preempted by the state, and that preemption is inferred when the legislature enacts a “comprehensive, detailed regulatory scheme.” The Court noted that preemption is a matter of statutory interpretation. It concluded that RSA Chapter 215-A does not constitute a detailed and comprehensive statutory scheme “with respect to OHRV trails on private land.”

Among the factors leading to this conclusion, the Court said, was the statement of intent in RSA 215-A:41, I, which declares it to be in the public interest “to balance the demand for ATV and trail bike trails on state land. The Court acknowledged the statute’s reference to using private lands “to the greatest extent possible” for trails, but wrote:

Despite the chapter’s brief mention of the creation of OHRV trails on both private and public lands, see RSA 215-A:41, II (a)-(b), subsequent provisions are concerned solely with the creation of trails on State lands, and are silent concerning the establishment of trails on private lands. … This omission undermines the chapter’s alleged comprehensiveness.

RSA Chapter 215-A:43, II (a)-(cc) lists a two-step set of requirements before OHRV trails can be created on state lands, including what the Court described as “29 site requirements similar to those normally considered and enforced by local planning and zoning boards.” One of those requirements is that DRED’s Bureau of Trails must give “due consideration to local planning and zoning ordinances.” There is no such review process for creation of OHRV trails on private lands, nor does the statute require DRED to hold public hearings for private lands trails, as it is required for trails on state land. The Court wrote:

Given that the statute explicitly directs the [B]ureau [of Trails] to consider site requirements, as well as local zoning and planning ordinances, when creating trails on State land … finding the chapter to be preemptive concerning private land would strain the bounds of logic. We find it more plausible that the legislature remained silent, not because it intended that private lands should escape review, but rather because it anticipated that local land use ordinances would properly fill that void.

DRED argued that RSA 215-A:15 permits towns to regulate on the operation of OHRVs—hours of operation and noise—not the site of the trails, and that RSA 215-A:15 would be unnecessary if the legislature intended towns to retain site plan authority. However, the Court was not persuaded by DRED’s arguments and said there was no “clear manifestation of legislative intent to preempt local regulation of trails on privately-owned property.”

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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