New Hampshire Municipal Association
New Hampshire Municipal Association

Court Update

Aircraft Takeoffs and Landings Can Be Regulated as Accessory Uses by Special Exception

Tonneson v. Town of Gilmanton
No. 2007-202, 3/13/2008

Under traditional zoning principles, it was difficult to establish aircraft takeoff and landing facilities in residential districts. Aircraft takeoffs and landings were rarely mentioned in zoning ordinances, and most ordinances prohibit all principal uses not expressly permitted. Accessory uses must be customarily subordinate and incidental to the principal use, and landing strips and helipads were not commonly associated with dwellings. As a result of the application of these two rules, an accessory landing strip was denied in Durrett v. Salem, 125 N.H. 29 (1984), and an accessory helipad was denied in Treisman v. Kamen, 126 N.H. 372 (1985). In 1996 the legislature reversed these rules, enacting RSA 674:16, V, which provides that aircraft takeoffs and landings are deemed permitted accessory uses unless “specifically proscribed” by local land use regulations.

In this case the Gilmanton zoning ordinance prohibited aircraft takeoffs and landings in some districts and permitted them in other districts as an accessory use by special exception. Tonneson was denied a special exception and filed suit, claiming that a special exception could not be required under RSA 674:16, V. The Supreme Court ruled in favor of the town. The Court held that accessory uses in general may be made subject to a special exception, and nothing in RSA 674:16, V provides otherwise. In so ruling, the Court clarified language in Fox v. Greenland, 151 N.H. 600, 606 (2004), which seemed to have suggested that accessory uses could never be regulated by special exception. On the contrary, the Court stated, “[through the use of special exceptions, a town can protect the rights of landowners both in areas where aircraft takeoffs and landings are acceptable and in areas where they are not.”

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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