New Hampshire Municipal Association
New Hampshire Municipal Association

Court Update

Dealership Buffer Requirement Survives Constitutional Challenge

Taylor v. Town of Plaistow
No 2004-337, 4/22/2005

The plaintiff, the proprietor of a tire and truck sales business, challenged the constitutionality of the town's zoning requirement of a minimum of 1,000 feet between vehicular dealerships in a commercial district.

In 1998, the plaintiff applied for a variance from the 1,000-foot requirement, which was granted by the zoning board of adjustment. However, the board of selectmen appealed the ZBA's decision, and the superior court reversed, finding that the requirement would not result in unnecessary hardship. In 2001, the New Hampshire Supreme Court vacated the lower court decision and remanded the case to the ZBA for consideration of unnecessary hardship under the newly announced standard in Simplex Technologies v. Town of Newington, 145 N.H. 727 (2001). The ZBA again granted the variance from the 1,000-foot requirement, a decision that was not appealed.

In this case, the plaintiff sought a declaration that the zoning requirement was unconstitutional and, therefore, he was entitled to monetary damages for the time during which he owned the property but could not use it for the sale of vehicles. The superior court denied the plaintiff's request for a declaratory judgment, finding that the 1,000-foot requirement was constitutional on its face and as applied to the plaintiff's property.

On appeal to the Supreme Court, the plaintiff argued that the ordinance was unconstitutional because it did not serve a legitimate purpose and violated his right to equal protection. The Court reviewed the “fundamental fairness” of the 1,000-foot requirement as a substantive due process challenge, which requires proof that the regulation is not rationally related to the town's legitimate goals. This rational basis standard of review begins with the presumption that the regulation is reasonable. “In reviewing the reasonableness of a particular zoning provision,” the Court wrote, “we are mindful that zoning is a legislative function and judging the wisdom of the legislation is not the function of this court.”

The Court said the zoning enabling law grants broad authority to municipalities to enact zoning regulations for the health, safety, morals and general welfare of the community, and that prior cases have held that municipalities may use the zoning power “solely to advance aesthetic values because the preservation or enhancement of the visual environment may promote the general welfare.”

The trial court had found that the town's purpose in enacting the 1,000-foot buffer between dealerships focused on aesthetics, safety and planning concerns. “These are legitimate reasons for which a town may exercise its zoning power,” the Supreme Court wrote. Not only did the Court give deference to the planning board's judgment in determining that the zoning regulation was necessary, it pointed out that other jurisdictions had upheld similar regulations, citing cases from Florida, Pennsylvania and Virginia. “We hold that the ordinance at issue here is rationally related to legitimate town goals and, therefore, comports with the due process requirements of our constitution,” the Court stated.

It next analyzed the plaintiff's claim that the 1,000-foot buffer requirement violated his equal protection rights by treating vehicular dealerships differently than other businesses. “An equal protection challenge to an ordinance is an assertion that the government impermissibly established classifications and, therefore, treated similarly situated individuals in a different manner,” the Court explained, noting that equal protection challenges receive “heightened scrutiny” by the courts, as opposed to the less onerous “rational relationship” review applied to the substantive due process challenge to the fairness of the ordinance. “In order for a classification in a zoning ordinance to be constitutional, it must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation,” the Court wrote.

The Court noted that the lower court found that vehicular dealerships have more impact on aesthetics and on traffic safety than other businesses “because they display their goods outdoors in full view to the general public” and because motorists look at the vehicles displayed as they drive by. The Court agreed with the lower court's finding that classifying vehicular dealerships differently than other businesses for the purposes of requiring a 1,000-foot buffer “bears a fair and substantial relationship to the [t]own's goals of preserving aesthetics and ensuring traffic safety.”

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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