McKenzie v. Town of Eaton Zoning Board of Adjustment

GALWAY, J. The defendant, the Town of Eaton Zoning Board of Adjustment (ZBA), and the intervenor, Nancy Burns, appeal a ruling,of the Superior Court (Fauver, J.) that upheld the constitutionality of an ordinance enacted by the Town. We affirm. The record supports the following. In 1981, the town issued a building permit to Burns, allowing her to place a storage shed fifty-nine feet from the shore of a lake abutting her property. In 1989, the town increased the setback requirements to 125 feet from the shore of the lake, thus making the shed nonconforming with the zoning ordinance. Also in 1989, the town passed Article VI, Section 2 of the Town of Eaton Zoning Ordinance, which stated, in pertinent part: Any structure damaged by fire, deterioration, or other casualty to the extent of seventy-five (75) per cent or more of the floor area in square feet and is not reconstructed within one (1) year shall constitute discontinuance and abandonment under Article VI, l.a. above and shall not be reconstructed or used except in conformity with this ordinance. The Board of Selectmen may permit the reconstruction or use of such building or structure substantially as it was prior to destruction upon finding that the same will not be detrimental or injurious to the neighborhood. If, for any reason, this permit is not granted such damaged structure shall be removed to clear ground level and put into safe condition within one (1) year following the date of damage. Any time after the expiration of said one (1) year, the Board of Selectmen may cause such removal to be done at the expense of the owner. Article VI, Section 2 was still in effect on June 2, 2002, when a windstorm caused trees to fall on Burns’ shed and damage it in excess of seventy-five percent of its floor area. In March 2003, Burns met with the Eaton Selectmen and indicated that she wanted to rebuild her shed. The selectmen told her that “[t]he building does not meet setbacks but is grandfathered so it can be replaced with a building the same size and on the same footprint as before.” By June 2, 2003, however, Burns had not rebuilt her shed or removed the debris left by the storm. On June 4, 2003, Kenneth McKenzie, an abutter and the plaintiff in this case, wrote to the selectmen, requesting that Burns remove the remnants of the shed and the debris on her property as required by Article VI, Section 2. The selectmen notified Burns on August 19, 2003, of — 775 — her duties under this provision. Burns subsequently applied for a building permit to rebuild her shed, which the selectmen granted on August 26, 2003. McKenzie appealed the selectmen’s decision to the ZBA. The ZBA reversed the selectmen’s issuance of the building permit because it was not issued within the one-year period required by the ordinance. Burns filed for rehearing, which the ZBA granted. After a rehearing, the ZBA reversed its prior decision and affirmed the selectmen’s issuance of the building permit. McKenzie appealed the ZBA’s decision to the superior court, arguing that the ordinance provision at issue was clear and unambiguous and that the ZBA failed to properly apply it. McKenzie asserted that the ZBA erred by relying upon the abandonment test established in Lawlor v. Town of Salem, 116 N.H. 61 (1976), which considers whether the property owner intended to abandon the nonconforming use. McKenzie also argued that the ZBA acted ultra, vires by declaring the ordinance provision unconstitutional. The ZBA disagreed, arguing that it had the authority to decide whether the ordinance provision was unconstitutional and that it properly considered Burns’ subjective intent because such a consideration was constitutionally required by Lawlor. The trial court agreed with both parties’ conclusions that the ZBA had found the provision unconstitutional and had determined that Burns did not intend to abandon her nonconforming use. The trial court reversed the decision of the ZBA, ruling that, while the ZBA’s consideration of intent may have been reasonable in the absence of the ordinance provision, the terms of the provision allowed the ZBA no discretion in determining abandonment. Because Burns failed to reconstruct her shed within one year of its destruction, the trial court found the ZBA’s decision unreasonable. The court also ruled that it could not find the ordinance unconstitutional. On appeal, the ZBA and Burns first argue that the trial court erred by interpreting the ZBA’s decision as finding that the ordinance provision was facially unconstitutional under substantive due process. They assert that the ZBA actually found the provision unconstitutional as applied. They argue that, had the trial court properly interpreted the ZBA’s decision, the court would have recognized that the provision would not apply to the shed because RSA 674:19 (1996) prohibits the application of new zoning ordinances to existing buildings. The appellants’ second argument is that a consideration of subjective intent pursuant to the Lawlor test is required by the New Hampshire Constitution when determining abandonment of a nonconforming use. Because the ordinance provision precluded a consideration of intent, the appellants argue, the trial court erred in reversing the ZBA. — 776 — McKenzie responds that, because the ZBA and Burns did not raise the effect of RSA 674:19 at trial, this issue is not preserved for our review. McKenzie additionally argues that the trial court was correct to rule that the ZBA should not have considered Burns’ intent because intent is not a factor for determining abandonment under the plain language of the ordinance. I Before we address the parties’ arguments, we note that we agree with their interpretation that the ordinance provision at issue precludes a consideration of a property owner’s subjective intent when determining whether the owner has abandoned a destroyed nonconforming use or structure. The provision states that a nonconforming use that is sufficiently destroyed and is not rebuilt within a year “shall constitute discontinuance and abandonment” and “shall not be reconstructed or used except in conformity with this ordinance.” It is a general rule of statutory construction that the word “shall” makes enforcement mandatory. In the Matter of Bazemore & Jack, 153 N.H. 351, 354 (2006). Accordingly, we interpret the ordinance as precluding a consideration of intent in determining abandonment. As we are the final arbiter of the interpretation of a zoning ordinance, Olszak v. Town of Hampton, 139 N.H. 723, 726 (1995), we will apply our interpretation throughout this opinion. II The ZBA and Burns first argue that the ordinance provision should not apply to Burns’ shed because RSA 674:19 prohibits the application of zoning ordinances to buildings in existence prior to the enactment of the ordinance provision. We conclude that this issue is not preserved for our review and therefore decline to address it. See LaMontagne Builders v. Bowman Brook Purchase Group, 150 N.H. 270, 274 (2003). It is a longstanding rule that parties may not have judicial review of matters not raised at trial. N. Country Envtl. Servs. v. Town of Bethlehem, 150 N.H. 606, 619 (2004). As the appellants, the ZBA and Burns have the burden, not only of providing a record sufficient for our review, but also of demonstrating that, before raising issues on appeal, they first raised those issues to the trial court. See Bean v. Red Oak Prop. Mgmt., 151 N.H. 248, 250 (2004); SUP. Ct. R. 16(3)(b). Because the appellants have not shown that they raised the effect of RSA 674:19 to the trial court, we conclude that this issue is not preserved for appeal and decline to review it. — 777 — III The ZBA and Burns next contend that a consideration of intent pursuant to Lawlor is constitutionally required to determine abandonment. On appeal from a trial court’s decision regarding a zoning board of adjustment’s decision, we will uphold the trial court’s decision unless it is unsupported by the evidence or is legally erroneous. Greens v. Town of Deering, 151 N.H. 795, 797-98 (2005). Because the constitutionality of an ordinance provision involves a question of law, we review the trial court’s decision de novo. Taylor v. Town of Plaistow, 152 N.H. 142, 144 (2005). We are the final arbiter of state constitutional disputes. Baines v. N.H. Senate President, 152 N.H. 124, 129 (2005). Zoning ordinances are presumed to be valid, and the challengers bear the burden of proving them unlawful. Morgenstern v. Town of Rye, 147 N.H. 558, 562 (2002). The ZBA and Burns are correct that the Lawlor test for abandonment considers the property owner’s intent to abandon a nonconforming use; however, we established that test in the absence of an applicable ordinance defining abandonment. In this case, an ordinance directly applies and permits the abandonment of a nonconforming use without a consideration of intent. We note that courts of other jurisdictions, as well as legal scholars, have concluded that a consideration of intent to abandon is not necessary when an ordinance defines abandonment without a consideration of intent. See Toys “R” Us v. Silva, 676 N.E.2d 862, 867 (N.Y. 1996) (stating that, generally, abandonment requires an intent to relinquish and some overt act or failure to act, but that “the inclusion of a lapse period in the zoning provision removes the requirement of intent to abandon — discontinuance of nonconforming activity for the specified period constitutes an abandonment regardless of intent”); Gurganious v. City of Beaufort, 454 S.E.2d 912, 916-18 (S.C. Ct. App. 1995) (rejecting the appellant’s argument that the common law definition of abandonment applied, and applying instead the objective test established in the relevant zoning ordinance that prohibited the resumption of a nonconforming use if discontinued for one year); Union Square Ass’n, Inc. v. Marc Lounge, Inc., 541 A.2d 1321, 1324 (Md. Ct. Spec. App. 1988) (enforcing an ordinance that required the owner of a destroyed nonconforming use to obtain a building permit and begin construction within one year in order to retain the nonconforming status of the structure, and holding that the nonconforming use owner’s lack of intent to abandon the use “matters not one whit”); 4 Zeigler, Rathkopf’s The Law of Zoning and Planning § 74:3, at 74-11 (2005) (stating, “A discontinuance provision which specifically states that it — 778 — operates to prevent and prohibit resumption of a nonconforming use after a specified period of time has lapsed, regardless of any reservation of an intent not to abandon or of an intent to reserve the right to resume, removes the factor of intent to abandon; it operates even where there was no intent to abandon or even where there was an intent not to abandon”); 15 P. Loughlin, New Hampshire Practice, Land Use Planning and ZONING § 8.04, at 128 (2000) (stating that most municipalities have taken the guesswork out of determining common law abandonment by enacting ordinances that give a specific time period of nonuse that constitutes abandonment); Annotation, Zoning: Right to Resume Nonconforming Use of Premises After Voluntary or Unexplained Break in the Continuity of Nonconforming Use, 57 A.L.R.3D 279, 312 (1974) (stating, “[I]n many instances, ordinances have nullified the theretofore-adopted rule of intention as controlling in connection with abandonment of a nonconforming use, by fixing a Time Limit in such ordinances, for mere Non-Use of a non-conforming use, so that — under such ordinances — mere non-use thereof for a stated time, becomes, of itself, sufficient to terminate a non-conforming use” (quotations omitted)). The task before us is to determine whether the ordinance provision at issue is a constitutional exercise of Eaton’s police power, which presents an issue of substantive due process. A substantive due process challenge to an ordinance questions the fundamental fairness of the ordinance. Dow v. Town of Effingham, 148 N.H. 121, 124 (2002). “In determining whether an ordinance is a reasonable exercise of the municipality’s police powers and, therefore, can withstand a substantive due process challenge, we have consistently applied the rational basis test.” Id. We recently clarified our analysis under the rational basis test in Boulders at Strafford v. Town of Strafford, 153 N.H. 633,641 (2006): We ... hold that the rational basis test under the State Constitution requires that legislation be only rationally related to a legitimate governmental interest. We further hold that the rational basis test under the State Constitution contains no inquiry into whether legislation unduly restricts individual rights, and that a least-restrictive-means analysis is not part of this test. The only manner in which application of the rational basis test will differ depends upon whether one challenges the ordinance on its face or as applied to the property. In a facial challenge to an ordinance, we will not rule the ordinance unconstitutional unless it could not be constitutionally applied in any case. Id. at 642. An as-applied challenge solely questions the constitutionality of the ordinance “in the relationship of the particular — 779 — ordinance to particular property under particular conditions existing at the time of litigation.” Dow, 148 N.H. at 124. The appellants argue that the ordinance provision is unconstitutional as applied to Burns’ shed. Accordingly, we address whether the provision is rationally related to a legitimate governmental interest under the particular facts of this case. The part of the provision upon which the ZBA and Burns focus is the first sentence, which states that any nonconforming structure that is destroyed to the extent of seventy-five percent or more and is not rebuilt within one year “shall constitute discontinuance and abandonment” and “shall not be reconstructed or used except in conformity with this ordinance.” The plain language of this provision evinces a purpose to discourage the continuation of nonconforming uses. The provision works to reduce nonconforming uses by establishing a time limit on their reconstruction. Those nonconforming uses not reestablished within a year are lost. Thus, the provision reduces the chance that a nonconforming use will be rebuilt. It is well established both in this state and in others that a legitimate purpose of zoning is the reduction and elimination of nonconforming uses. See, e.g., Hurley v. Hollis, 143 N.H. 567, 571 (1999) (stating, “the well established policy of zoning law is to carefully limit the enlargement and extension of nonconforming uses, and, ultimately, to reduce them to conformity as completely and rapidly as possible” (quotations omitted)); 4 Zeigler, Rathkopf’S The LAW OF ZONING AND Planning § 74:11, at 74-38 (stating, “the spirit of zoning is to restrict, rather than increase, nonconforming uses and to eliminate such uses as speedily as possible”). Accordingly, the ordinance’s purpose of reducing nonconforming uses is a legitimate governmental interest. The remaining question is whether the provision, as applied to Burns’ shed, bears a rational relationship to the legitimate goal. By imposing a time limit on Burns’ ability to rebuild her nonconforming shed, the provision reduced the possibility that Burns would reconstruct her nonconforming shed and increased the possibility that the shed, if rebuilt, would be rebuilt in compliance with the zoning ordinance. As Burns did not rebuild her shed within a year, the efficacy of the time limitation is evident. Accordingly, as applied to Burns’ property, the ordinance provision bears a rational relationship to the legitimate goal of reducing nonconforming uses. Based upon the above reasoning, we conclude that the ordinance provision at issue does not violate substantive due process as applied to Burns’ nonconforming shed. Although there may be ways in which the provision could further the goal of reducing nonconforming uses while being less restrictive of Burns’ property rights, we have not considered such alternatives, pursuant to our holding in Boulders, 153 N.H. at 638 — 780 — (stating, “We will not second-guess the town’s choice of means to accomplish its legitimate goals, so long as the means chosen is rationally-related to those goals”). We finally note that the appellants rely in part upon Dugas v. Town of Conway, 125 N.H. 175 (1984), in support of their position. In Dugas, we required the town to pay attorney’s fees to the plaintiff for having to defend against an unconstitutional taking of his nonconforming use. Id. at 183. Dicta notwithstanding, Dugas is distinguishable from the instant case because the sole issue in Dugas was whether the trial court erred in denying the plaintiff’s request for attorney’s fees. Id. at 179-80. Further, the underlying challenge in Dugas was a takings challenge, as distinguished from the challenge in this case, which is substantive due process. Affirmed. Broderick, C.J., and Dalianis and Hicks, JJ., concurred; Duggan, J., concurred specially.