New Hampshire Municipal Association
New Hampshire Municipal Association

Court Update

Court Clarifies Rational Basis Test Applied to Validity of Municipal Ordinances

Boulders at Strafford, LLC v. Town of Strafford
No. 2005-140, 6/13/2006

At issue in this case was the constitutionality of the wetlands setback provision for septic systems in the town’s zoning ordinance; however, the New Hampshire Supreme Court’s ruling established and clarified the standard by which the validity of the ordinance must be analyzed. The issue of constitutionality of the wetlands provision was remanded to the trial court to decide based on the proper standard of review announced by the Supreme Court.

Under the town’s zoning ordinance, septic system setbacks are determined by the percentage of slope of the property: 100 feet for 0 to 8 percent slope; 150 feet for 9 to 15 percent slope; and 200 feet for slopes greater than 15 percent.

Boulders at Strafford applied to the town’s planning board for subdivision approval involving a 300-acre parcel. Under conventional subdivision design, the property would be subdivided into 58 lots; under the town’s conservation/open space regulations, the property would yield 66 lots. The planning board said it preferred the conservation/open space design, which required variances from the wetlands setbacks for 25 of the 66 proposed subdivision lots.

The zoning board of adjustment denied Boulders’s variance requests to allow septic systems within 75 feet of the wetlands and denied its request for rehearing. Rather than appeal the variance denial, Boulders petitioned the trial court to declare the setback provision unconstitutional on its face and as applied to the property. The trial court ruled in favor of Boulders.

The town appealed to the Supreme Court, arguing that the trial court applied the wrong test for determining the constitutionality of the zoning provision under a substantive due process challenge. The power to enact zoning ordinances falls under the municipality’s police powers to protect the health, safety and welfare of the community. The Court has long held that when determining if an ordinance is a proper exercise of the town’s police power and able to withstand a substantive due process challenge under the state constitution, the rational basis test must be applied. As the Court explained, “This inquiry employs the lowest level of constitutional scrutiny, and asks whether the ordinance constitutes a restriction on property rights that is rationally related to the municipality’s legitimate goals.”

The town and Boulders both agreed that the rational basis test was the proper standard to apply in determining the constitutionality of the town’s setback provision, but the town argued that the trial court inappropriately applied the intermediate scrutiny standard (the middle tier test) instead.

It was unclear to the Supreme Court which test the trial court applied in finding the town’s setback provision unconstitutional, and the Court said the parties each contributed to the trial court’s confusion. For instance, Boulders argued that the setback provision was unconstitutional because there were less restrictive ways to achieve the town’s health, safety and welfare goals. And the town argued that Boulders had to prove there was no substantial relationship between the ordinance and the health, safety or welfare of the community, a standard that is normally applied under the middle tier test. In addition, the Court acknowledged that it had “foster[ed] the kind of confusion demonstrated in the case before us” by “[a]llowing the continued and duplicative use of the terms ‘reasonable,’ ‘arbitrary,’ and ‘unduly restrictive’ in each of our levels of constitutional review [rational basis, intermediate and strict scrutiny], as well as the use of a least-restrictive-means inquiry in our rational basis review[.]”

With a nod to the importance of stare decisis, which the Court described as “a brake upon legal change to be applied in the interest of continuity,” the Court said, “[I]n our judgment it is better to undergo the hardships that may result from correcting these tests and bringing them into conformity with each other than to suffer the errors to persist.”

The Court held that the rational basis test under the state constitution requires that legislation be only rationally related to a legitimate governmental interest. Further, the Court held that the rational basis test “does not contain an inquiry into whether legislation unduly restricts individual rights, and that a least-restrictive-means analysis is not part of this test.”

In so holding, the Court overruled two earlier cases to the extent that they don’t comply with the newly enunciated rational basis test: Metzger v. Town of Brentwood, 117 N.H. 497 (1977), which held that requiring 200 feet of frontage was unconstitutional where 123 feet “provided ready access,” and Powers v. Town of Hampton, 125 N.H. 273 (1984), which held that requiring a 24-foot wide fire lane was unconstitutional where 15 feet was sufficient. These cases factored a least-restrictive-means analysis into the rational basis test, which the Court has now ruled inappropriate.

When the case was before the trial court the first time, Boulders had presented scientific evidence from four experts and the town had testimony from one expert. The Supreme Court said, however, “there are many reasons besides scientific data that a town could posit to justify its zoning ordinances [such as] aesthetics, safety and planning concerns … and … that ‘any fair reason [that] could be assigned for bringing legislation within [the town’s] purview’ might be sufficient to save it.” These reasons for justifying the validity of a zoning provision are indicative of the deference given to such legislation under the rational basis test, which, as the Court noted, “employs the lowest level of constitutional scrutiny.”

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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