Interim Growth Management Ordinance Held Valid

Weare Land Use Association v. Town of Weare
Weare Land Use Association v. Town of Weare
No. 2004-849
Thursday, May 18, 2006

Is a growth management ordinance that prohibits a planning board or zoning board of adjustment from formally accepting or acting upon major subdivision applications creating a total of more than three lots invalid as exceeding the statutory authority included in RSA 674:23? No, such an ordinance, properly enacted pursuant to RSA 674:23, is valid.

RSA 674:23 provides that a town may adopt an ordinance imposing interim regulations upon development where “unusual circumstances requiring prompt attention” exist. The planning board may propose an interim regulation if it determines that such conditions are present. The interim regulation must be presented to the legislative body for approval as a zoning ordinance. On March 9, 2004 the town adopted an interim growth management ordinance, which for a one-year period beginning on March 9, 2004, prohibited the Weare Planning Board or Zoning Board of Adjustment from formally accepting or acting upon “any site plan applications for single family housing, multi-family housing, mobile home parks or condominiums proposed…or any other major subdivision applications creating a total of more than 3 lots.” The ordinance applied to applications formally accepted after March 9, 2004, but not to those that were formally accepted prior to that date, and also limited to 60 the number of building permits that the town could issue for new dwellings during the one-year period.

The association argued that the growth management ordinance violated rights conferred by RSA 676:4 , I(c)(1) because it prevents applications from being considered for formal acceptance by the planning board. Applications formally accepted by the board benefit from the vesting protections of RSA 676:12 VI with regard to subsequently posted zoning ordinance changes. The Court rejected the association’s argument, pointing out that the purpose of the interim growth management ordinance is to provide a town with reasonable time to develop or alter a master or comprehensive plan and to provide for phasing in growth. To accept the association’s position, the Court reasoned, would have the effect of rendering RSA 674:23 “rather meaningless.” The Court refused to “interpret the statute to produce such an illogical result.” The Court, quoting from its decision in Conway v. Town of Stratham, 120 N.H. 257, 259 (1980) concluded, “we continue to recognize that interim growth ordinances are appropriate temporary measures to control growth.”

The Court remanded the association’s substantive due process challenge to the trial court for such further action, if any, as it deems appropriate.