New Hampshire Municipal Association
New Hampshire Municipal Association

Court Update

Unanimous Court Upholds Wetlands Ordinance

Maud Anderson & a. v. Motorsports Holdings, LLC
No. 2006-008, 5/30/2007

This case involved an attempt by a developer to avoid compliance with a town’s wetlands conservation ordinance, which required a special use permit from the planning board. For several reasons, the Court rejected the developer’s arguments and upheld the ordinance and its application to the developer’s project.

Motorsports Holdings, LLC (the respondent) owns approximately 250 acres of land in Tamworth, on which it planned to build a 3.1-mile automobile racetrack to be used as a “private driving instructional facility and motorsports country club.” Along with the track, the development plan called for structures to support the repair, servicing and garaging of racing vehicles, as well as a hotel, restaurant, access road and parking facilities. Construction of the development would involve dredging and filling 14,759 square feet of wetlands, would affect 16,952 square feet of intermittent streams, and would affect 17 distinct wetlands areas. The development site is located over primary and secondary recharge areas for the Ossipee Aquifer, which provides drinking water for 28 towns in New Hampshire and Maine.

In connection with this development, the respondent obtained: (1) a dredge-and-fill wetlands permit from the New Hampshire Department of Environment Services (DES); (2) a site-specific alteration-of-terrain permit from DES; (3) a wetlands permit from the United States Army Corps of Engineers (USACE); and (4) a water quality certificate from DES. DES also required the respondent to provide a conservation easement on 107 acres of land in a nearby town to mitigate the negative environmental impacts of the project. The respondent applied for a special use permit under the town’s wetlands conservation ordinance but then withdrew the application before the planning board reached a decision on it, arguing that it did not need to obtain a special use permit.

The respondent presented several arguments to the court, citing stringency, vagueness and selective enforcement of the ordinance:

The ordinance stated “where any provision of this ordinance is in conflict with State or Federal law or regulation, or other Town ordinance, the more stringent provision shall apply.” The respondent first argued that this provision should be read to mean that if a project had to comply with state and federal laws that were more stringent, the ordinance did not apply. The Court disagreed. Noting the ordinance’s language that when any provision of the ordinance was in conflict with state or federal law, the more stringent provision would apply, the Court concluded this language could not be read to eliminate the need to obtain a special use permit. Because the Court found nothing in that provision of the ordinance that eliminated the need to obtain a special use permit, it did not need to address whether any of the provisions of the ordinance were in conflict with and less stringent than provisions of state or federal law. Further, the Court found that the respondent would still be required to obtain the special use permit even if some provisions of the ordinance were less stringent than other applicable law. The Court cautioned that the planning board may not interpret the standards contained within the ordinance illegally or unreasonably in order to support a determination of stringency.

The respondent also argued that the seven factors listed in the “purposes and intent” section of the ordinance, which were to be used to determine whether a special use permit was appropriate or not, were void because they were unconstitutionally vague. The burden of proving the invalidity of an ordinance lies with the party attacking its validity. A municipal ordinance is presumed to be valid, and is not lightly overturned. Generally, a municipal ordinance survives a vagueness challenge if it is framed in terms sufficiently clear, definite and certain, such that an average person after reading it will understand when one is violating its provisions. In this case, the respondent did not point to any particular language that was unconstitutionally vague, and the Court held the respondent had failed to carry its burden on this issue. Moreover, the Court did not find that any language in the “purposes and intent” section was unconstitutionally vague.

To prove that the enforcement of an ordinance was discriminatory, a party must show more than that the enforcement was historically lax. Instead, it must show that the selective enforcement was a conscious, intentional discrimination, and further show that the town impermissibly established classifications and, therefore, treated similarly situated individuals in a different manner in order to set forth an equal protection claim. Here, the respondent argued that because the board never applied the ordinance to any previous wetlands project, applying it to the respondent constituted selective and discriminatory enforcement in violation of the respondent’s equal protection and due process rights. The Court found no discriminatory enforcement, noting that the respondent failed to show that any previous project was of a similar size and scope to the respondent’s project. Further, the respondent failed to demonstrate that the town impermissibly established classifications and treated similarly situated individuals in a different manner.

The respondent also argued that if it were required to obtain a town permit, the town might require different conditions than state or federal agencies that had already issued permits, forcing the respondent to resubmit its applications if the other permitting entities did not agree with the town conditions. This, the respondent argued, would result in a “regulatory limbo,” in violation of its due process rights. The Court interpreted this argument as an assertion of a due process right not to comply with a municipal regulatory scheme that has different requirements from a state or federal regulatory scheme—a right the Court has never found to exist. Instead, the Court reiterated its holding from a prior case that “[a] municipality is not estopped from creating more restrictive rules for wetlands than those required by the [DES] Wetlands Board.”

The respondent also argued unsuccessfully that: (1) because the town consistently allowed development to affect wetlands without requiring a special use permit, the town established an administrative gloss of non-enforcement on the ordinance and could not now interpret it to require a special use permit in this case; (2) the trial court failed to consider whether its development was a “parks and recreation” use, which was permitted under the ordinance without the need for a special use permit; (3) the ordinance applies to wetlands and water bodies only, and not to any adjacent “buffer zones”; and (4) the trial court ruled incorrectly when it found that the plaintiffs as a group had standing to bring this suit even if some petitioners’ properties do not abut the respondent’s property because at least one named plaintiff owns abutting property and thus has standing. The Court disagreed with all of these arguments and upheld the trial court’s rulings.

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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