Christopher Andrews & a. v. Kearsarge Lighting Precinct ( 2023 )

THE STATE OF NEW HAMPSHIRE
SUPREME COURT
In Case No. 2021-0543, Christopher Andrews & a. v.
Kearsarge Lighting Precinct, the court on August 31, 2023,
issued the following order:
The court has reviewed the written arguments and the record submitted
on appeal, has considered the oral arguments of the parties, and has
determined to resolve the case by way of this order. See Sup. Ct. R. 20(2). The
plaintiffs, Christopher and Kelly Andrews, appeal an order of the Superior
Court (Ignatius, J.) affirming a decision by the Kearsarge Lighting Precinct
Zoning Board of Adjustment (ZBA) to uphold citations issued to the plaintiffs
by the intervenor-defendant, the Kearsarge Lighting Precinct Board of
Commissioners (BOC). We affirm in part, reverse in part, and remand.
I. Background
The Kearsarge Lighting Precinct (KLP) is a village precinct established in
1957 within the towns of Conway and Bartlett. The plaintiffs own two
properties in the KLP, which they purchased in 2011 and 2013, respectively,
and use for short-term vacation rentals. The plaintiffs’ primary residence is in
Massachusetts.
In September 2017, the BOC held a public hearing on “vacation property
rentals” in response to public complaints about disruptive behavior of visitors
staying in the area. The meeting primarily focused on four properties in the
KLP that were used for short-term rentals, including the plaintiffs’ two
properties. Members of the public commented that local property owners did
not benefit from vacation rentals and that “[n]on owner operated rentals are not
allowed in our zoning ordinance.” The KLP’s zoning ordinance contains a
provision (the Guest Provision) under “Criteria for Permitted Uses” for
residential properties, which states: “All residential properties that offer
sleeping accommodations to transient or permanent guests shall be owner
occupied and operated.”
A ZBA member participated in this meeting as a member of the public
and asked: “Since these rentals have not been enforced in the past does it
make it not enforceable?” The KLP’s counsel responded that the BOC could
enforce the Guest Provision. The son of a ZBA member, Member Wroblewski,
also attended this hearing. The BOC unanimously voted to have the KLP’s
counsel draft citations for the four properties. The BOC approved the citations
at a public meeting in October 2017. The BOC subsequently sent the plaintiffs
two citations stating that they violated the Guest Provision at both of their
properties, as each “[h]ouse [was] being offered for sleeping accommodation to
transient guests without being owner occupied and operated.” The BOC also
sent citations to the owners of the other properties at issue.
Stephen Gleason, one of the other property owners, appealed the BOC’s
decision to the ZBA. At the ZBA hearing addressing the appeal in December
2017, counsel for Gleason requested a poll of the ZBA members “to make sure
that they don’t have an opinion or a public position on this issue.” The
members agreed to poll themselves and responded that none of them had a
preconceived opinion. At a public hearing in January 2018, the ZBA voted to
deny Gleason’s administrative appeal.
In December 2017, the plaintiffs also appealed their citations from the
BOC to the ZBA. In February 2018, the ZBA held a public hearing on the
plaintiffs’ appeal. The plaintiffs were represented by the same counsel as
Gleason. Counsel “referenced his previous arguments from the Gleason
hearing,” including that the Guest Provision was ambiguous and that the BOC
had not historically enforced the provision in this manner. Counsel presented
evidence that many property owners in the KLP used their properties for short-
term vacation rentals. A ZBA member noted that “the ZBA opinion w[ould]
likely be similar to the Gleason appeal.” The ZBA voted to delay deliberations
and a final vote until a subsequent meeting.
At the next meeting a few weeks later, a ZBA member presented a draft
decision denying the plaintiffs’ appeal, which was read aloud and discussed.
The ZBA unanimously voted to uphold the BOC’s citations.
The ZBA subsequently sent a letter to the plaintiffs explaining its
decision. The ZBA maintained that the ordinary meaning of the Guest
Provision’s terms was clear. According to the ZBA, the provision’s purpose was
to “maintain a quiet peaceful neighborhood made up of residents, not
transients,” and it achieved this goal, in part, by requiring “owner[s to remain
at the] residence on the property in order to serve as a check on guest behavior
which might otherwise be incompatible with the neighborhood.” The ZBA
concluded that, even if the Guest Provision were ambiguous, the plaintiffs
failed to identify any previous instance in which the BOC interpreted the Guest
Provision as inapplicable to short-term rentals.
After receiving the letter, the plaintiffs moved for a rehearing. The ZBA
reviewed the plaintiffs’ motion at a public hearing in March 2018 and voted to
deny it. The plaintiffs appealed the ZBA’s decision to the trial court pursuant
to RSA 677:4 (2016). In April 2021, the trial court held a hearing on the
plaintiffs’ appeal. In September 2021, the trial court issued an order affirming
2
the ZBA’s decision. The plaintiffs filed a motion to reconsider, which the trial
court denied. This appeal followed.
II. Analysis
Our review in zoning cases is limited. Dietz v. Town of Tuftonboro, 171
N.H. 614, 618 (2019). “The party seeking to set aside the ZBA’s decision bears
the burden of proof on appeal to the trial court.” Id. (quotation omitted). “The
factual findings of the ZBA are deemed prima facie lawful and reasonable, and
will not be set aside by the trial court absent errors of law, unless the court is
persuaded, based upon a balance of probabilities, on the evidence before it,
that the ZBA’s decision is unreasonable.” Id. (quotation omitted). “The trial
court’s review is not to determine whether it agrees with the zoning board of
adjustment’s findings, but to determine whether there is evidence upon which
they could have been reasonably based.” Id. (quotation omitted). “The trial
court reviews the ZBA’s statutory interpretation de novo.” Id.“We will uphold the trial court’s decision on appeal unless it is not
supported by the evidence or is legally erroneous.” Id. (quotation omitted). “We
review the trial court’s statutory interpretation de novo.” Id. (quotation
omitted).
A
The plaintiffs argue that the trial court erred in its consideration of their
procedural due process claim. Part I, Article 15 of the State Constitution
provides, in relevant part: “No subject shall be . . . deprived of his property,
immunities, or privileges, put out of the protection of the law, exiled or deprived
of his life, liberty, or estate, but by the judgment of his peers, or the law of the
land . . . .” N.H. CONST. pt. I, art. 15. “Law of the land in this article means
due process of law.” State v. Veale, 158 N.H. 632, 636 (2009) (quotation
omitted). “The ultimate standard for judging a due process claim is the notion
of fundamental fairness.” Id. at 637 (quotation omitted).
On appeal, the plaintiffs argue that “[w]hile the Trial Court properly
recites the law relative to procedural due process, its consideration of
individual claims constituting the overall due process claim was flawed.”
Citing Appeal of Lathrop, 122 N.H. 262 (1982), the plaintiffs assert that “[i]n
assessing whether there was bias or prejudgment, a court is to look at the
conduct of the board members as a whole, rather than looking at statements or
conduct in isolation.” However, as noted by the ZBA and the BOC in their
memorandum of law, Lathrop does not stand for this proposition. Rather, in
Lathrop, this court determined that “[t]he entire series of events contained in
the record leads us to conclude that the appellants have made a sufficiently
strong showing that the [New Hampshire Water Resources Board] had
determined the outcome prior to the hearing and decision.” Lathrop, 122 N.H.
3
at 266. However, this court did not hold that assessing possible bias requires
a global view of the board members collectively or that members’ statements or
conduct cannot be evaluated separately from one another. See id.Accordingly, we are not persuaded by the plaintiffs’ argument that the trial
court erred.
The plaintiffs argue that Member Wroblewski was biased in that his “son
was one of the complainants giving rise to the appeals before the ZBA and
Member Wroblewski had discussed the case with his son outside of the public
hearing process.” Regarding Member Wroblewski’s general familial relationship
with his son, we conclude that this issue was not “raised at the earliest
possible time.” Fox v. Town of Greenland, 151 N.H. 600, 604 (2004). We have
previously noted that “trial forums should have a full opportunity to come to
sound conclusions and to correct errors in the first instance.” Id. (quotation
omitted). In this case, the plaintiffs had the burden to raise their concern
about Member Wroblewski “as soon as they became aware of the grounds for
the objection so that the ZBA would have the opportunity to correct any
problem.” Id. The record on appeal indicates that, although they had concerns
regarding Member Wroblewski’s impartiality at the time of the ZBA hearing,
they did not raise a specific objection about his alleged bias. Thus, this issue
is unpreserved for our review.
The plaintiffs further argue that they later received in discovery emails
from Member Wroblewski indicating that he discussed the circumstances of
this case with his son and was therefore biased. Disqualification is governed
by RSA 673:14, which provides that a member shall be disqualified “if that
member has a direct personal or pecuniary interest in the outcome which
differs from the interest of other citizens, or if that member would be
disqualified for any cause to act as a juror upon the trial of the same in any
action at law.” RSA 673:14, I (2016).
These emails have not been provided to us on appeal. However, the trial
court found that Wroblewski emailed another ZBA member that “‘over the
holiday weekend, we had some lively conversations about the current
challenges facing the KLP’ and that his ‘son in law . . . was a lawyer in
Brooklyn and participated and offered his perspective.’” (Brackets omitted.)
Wroblewski further noted that his son was “involved in these discussions” and
“relayed that he asked his son if he would consider being Member Wroblewski’s
alternate for the hearing, and recommended that [another member] reach out
to [his son] to further discuss that proposal.” Wroblewski’s son did not
participate as an alternate member.
The trial court determined that “[a]fter reviewing the entire email, the
court does not find it demonstrates Member Wroblewski prejudged or was
otherwise biased against the plaintiffs’ appeal.” (Record citation omitted.) The
court explained that “[i]n the email, he merely notes that he discussed the
4
‘challenges’ facing the KLP with his son and son-in-law.” The court reasoned
that “[w]hile it is true that his son appears to have complained about the
plaintiffs’ appeal, Member Wroblewski did not himself express any opinion
about the plaintiffs’ appeal or the propriety of his son’s complaint in the email,
and there is no evidence that he did so at any other time.” (Record citation
omitted.) Based on the record on appeal, we agree that these general
statements by Wroblewski referring to “lively conversations” and discussions of
“challenges” going on in the community do not show prejudgment, prejudice, or
a personal or pecuniary interest in the outcome of the plaintiffs’ case. See RSA
673:14, I; Dietz, 171 N.H. at 618 (“We will uphold the trial court’s decision on
appeal unless it is not supported by the evidence or is legally erroneous.”).
The plaintiffs also argue that “contrary to the Trial Court’s finding,
Member Lee, and the ZBA in general, repeatedly rel[ied] upon information
outside of the record to inform its decision in this case thereby further
contributing [to] the fundamental unfairness of the proceedings and denying
[the plaintiffs] procedural due process.” However, “[w]e have previously held
that ZBA members may base their conclusions upon ‘their own knowledge,
experience and observations,’” as well as upon “their common sense.” Dietz,
171 N.H. at 624 (quoting Biggs v. Town of Sandwich, 124 N.H. 421, 427
(1984)). Moreover, the plaintiffs have not shown how, under these
circumstances, such outside information amounted to fundamental unfairness
so as to constitute reversible error. Therefore, the plaintiffs have not shown
that the trial court’s procedural due process determination is unsupported by
the evidence or is legally erroneous.
B
The plaintiffs next argue that the trial court erred in finding no
substantive due process violation. The ZBA and the BOC contend that this
issue is not preserved for appeal. We agree that the issue is not preserved.
In their motion for rehearing before the ZBA, the plaintiffs argued that
the Guest Provision violates substantive due process because it forbids
residential owners from renting their residential property without being owner
occupied, yet does not prohibit owners of apartment houses from doing the
same. The trial court understood the plaintiffs to be arguing this same point
on appeal. The trial court concluded that “[g]iven the proffered purpose of the
Guest Provision, the KLP could rationally choose to regulate apartment houses
for longer-term tenants differently from short-term rentals of residential
properties.” In their motion for reconsideration, the plaintiffs asserted only
that “the Court ignore[d] that the proffered purposes for the Guest Provision
intend to regulate persons, rather than the land itself, and, therefore, is not a
legitimate governmental interest for zoning purposes.”
5
On appeal to this court, the plaintiffs now contend that “the Guest
Provision requires businesses offering sleeping accommodations (i.e. those in
the hospitality industry) in a residential setting to be owner occupied and
operated and has nothing to do with the rental of single homes.” The plaintiffs
argue that “the substantive due process inquiry [before the trial court] should
have been whether applying a provision intended to govern the ownership and
operation of the hospitality businesses to single homes was rationally related to
a legitimate governmental interest.”
The plaintiffs’ argument on appeal is substantially different from the one
made before the ZBA and the trial court. An issue not raised before the ZBA
and on appeal to the trial court is not preserved for our review. RSA 677:3, I
(2016); Dube v. Town of Hudson, 140 N.H. 135, 138 (1995). Therefore, we
decline to consider this argument.
C
Regarding their equal protection claim, the plaintiffs argue that the trial
court “improperly conflated an estoppel based selective enforcement claim and
otherwise failed to address the claim under the current framework.” We
construe this argument to mean that the plaintiffs challenge the trial court’s
analysis of the equal protection claim through a selective enforcement analysis
rather than through an intermediate scrutiny analysis. The ZBA and the BOC
contend that the plaintiffs “are not challenging any classification inherent in
the ordinance itself (none exists), but rather are still advancing a selective
enforcement argument.” We agree with their characterization of the plaintiffs’
argument.
“[A]n equal protection challenge to an ordinance is an assertion that the
government impermissibly established classifications and, therefore, treated
similarly situated individuals in a different manner.” Taylor v. Town of
Plaistow, 152 N.H. 142, 146 (2005) (quotation omitted). “In considering an
equal protection challenge under our State Constitution, we must first
determine the correct standard of review by examining the purpose and scope
of the State-created classification and the individual rights affected.” Cmty.
Res. for Justice v. City of Manchester, 154 N.H. 748, 758 (2007) (quotation and
brackets omitted). “As the right to use and enjoy property is an important
substantive right, we use our intermediate scrutiny test to review equal
protection challenges to zoning ordinances that infringe upon this right.” Id.We have previously held that “intermediate scrutiny under the State
Constitution requires that the challenged legislation be substantially related to
an important governmental objective.” Id. at 762.
Based on the record on appeal, we conclude that the trial court did not
err by engaging in a selective enforcement analysis rather than by applying
intermediate scrutiny. The plaintiffs emphasize that the “KLP had purposely
6
elected to enforce the Guest Provision, as it construed it, against non-residents
only.” They do not argue that there is a State-created classification inherent in
the Guest Provision. Rather, in their amended complaint, the plaintiffs stated
as part of their equal protection claim that “[h]ere, Kearsarge selectively elected
to enforce the Ordinance against those property owners whose primary
residence was out of state.” (Emphasis added.) The plaintiffs also did not
engage in an intermediate scrutiny analysis, and have not done so on appeal.
Therefore, the plaintiffs have not shown that the trial court’s analysis here is
legally erroneous.
D
We next address the plaintiffs’ argument that the trial court’s “concept of
standing was too narrow” when it denied their “ultra vires” claim for lack of
standing. According to the trial court’s order, the plaintiffs argued that the
KLP lacked the statutory authority to “enact and enforce the Guest Provision”
because “the BOC and ZBA, in applying the Guest Provision in the instant
case, adopted an interpretation that would not allow any rentals in the KLP
unless they were owner occupied.” The trial court noted that the plaintiffs
specifically argued that this application restricts affordable housing within the
KLP and therefore “conflicts with the holding in Britton v. [Town of] Chester,
134 N.H. 434 (1991), in which the New Hampshire Supreme Court determined
that municipal zoning regulations that severely restrict affordable housing
conflict with the zoning statute’s public welfare requirements and are thus
ultra vires.” The trial court concluded that the plaintiffs lacked standing
because they “do not argue that the holding in Britton prevents municipalities
from prohibiting short-term rentals” and “are trying to invalidate a statute on
the grounds it unlawfully interferes with a use they do not, and do not intend
to, engage in.”
On appeal, the plaintiffs now assert that “[t]hey claimed that the Guest
Provision, as construed and applied by [the] KLP, was ultra vires as it banned a
beneficial use of property within the KLP, namely, the rental of property,
whether it was short-term or long-term.” They argue that the fact “that the
Guest Provision may prevent other rentals as well (i.e., the affected class is
larger than those intending short term rentals) does not alter the fact that the
Guest Provision, as construed by the KLP, prohibits [the plaintiffs’] use of their
properties and directly impacts them.”
“Standing under the New Hampshire Constitution requires parties to
have personal legal or equitable rights that are adverse to one another, with
regard to an actual, not hypothetical, dispute, which is capable of judicial
redress.” Avery v. Comm’r, N.H. Dep’t of Corr., 173 N.H. 726, 737 (2020). “In
evaluating whether a party has standing to sue, we focus on whether the party
suffered a legal injury against which the law was designed to protect.” Id.“Neither an abstract interest in ensuring that the State Constitution is
7
observed, nor an injury indistinguishable from a generalized wrong allegedly
suffered by the public at large, is sufficient to constitute a personal, concrete
interest.” Id. “Because the relevant facts are not in dispute, we review the trial
court’s determination on standing de novo.” Id.Specifically, “[t]o have standing to take a direct statutory appeal from a
zoning action of a legislative body, the appealing party must have been
‘aggrieved’ by that action.” Caspersen v. Town of Lyme, 139 N.H. 637, 640
(1995); see RSA 677:4. “Aggrievement is found when the appellant shows a
direct definite interest in the outcome of the proceedings.” Caspersen, 139
N.H. at 640. “The existence of this interest, and the resultant standing to
appeal, is a factual determination in each case.” Id.Here, the plaintiffs were found by the BOC and the ZBA to have violated
the same ordinance that they seek to challenge as ultra vires. This is not a
case where “the petitioner had only a generalized interest in the outcome of the
ZBA proceedings” or a speculative injury. See Hannaford Bros. Co. v. Town of
Bedford, 164 N.H. 764, 769 (2013). There is no dispute that the plaintiffs
purchased their properties with renting in mind, subsequently did rent out
their properties, and intended to continue to do so. There is also no dispute
that the BOC sent the plaintiffs notices of violations for both of their properties
that specifically invoked the Guest Provision. Therefore, the plaintiffs have a
direct definite interest in the outcome of these proceedings and are “person[s]
aggrieved” under RSA 677:4. See Caspersen, 139 N.H. at 640.
We are unpersuaded by the argument advanced by the ZBA and the BOC
that “A) the plaintiffs do not use their property for long-term rentals, B) the KLP
has never taken the position that the Guest Provision prohibits all rentals, and
C) plaintiffs have never presented any evidence of threatened enforcement of
the same.” In their motion for reconsideration to the trial court and on appeal,
the plaintiffs explained that their claim does not focus on long-term rentals
exclusively, but on banning rentals as a use generally, including short-term
rentals. As the plaintiffs have standing to challenge the Guest Provision as it
pertains to short-term rentals, they are not barred completely from asserting
an ultra vires claim solely because the Guest Provision may or may not affect
long-term rentals as well. Moreover, the plaintiffs do not challenge a
“hypothetical application” of the Guest Provision, as the ZBA and the BOC
claim. Rather, the plaintiffs’ ability to rent out their own properties has already
been restricted through the BOC’s enforcement of this provision.
Accordingly, we conclude that the trial court erred in determining that
the plaintiffs do not have standing and in failing to reach the merits of their
ultra vires claim. We reverse on this issue and remand to the trial court for
further proceedings.
8
E
Regarding their claims of estoppel, waiver, selective enforcement, and
administrative gloss, the plaintiffs argue that the “[t]rial [c]ourt’s determination
that there was no evidence of a de facto policy of non-enforcement was
unlawful and unreasonable.” The plaintiffs assert that “[w]hile admittedly
there is no direct evidence of KLP[s’] [de facto] policy [of nonenforcement], the
record is replete with circumstantial evidence supporting such a policy and the
law supports the same.”
We first turn to the plaintiffs’ estoppel and waiver claims. Estoppel
requires, inter alia, “a false representation or concealment of material facts
made with knowledge of those facts,” upon which the other party relies to his
or her injury. See Town of Seabrook v. Vachon Management, 144 N.H. 660,
666 (2000). A finding of waiver “must be based upon an intention expressed in
explicit language to forego a right, or upon conduct under the circumstances
justifying an inference of a relinquishment of it.” Town of Atkinson v. Malborn
Realty Trust, 164 N.H. 62, 66 (2012) (quotation omitted). The plaintiffs do not
argue on appeal, and the record does not support, that the KLP affirmatively
interpreted the ordinance as allowing short-term rentals and that the plaintiffs
were then induced to rely upon that representation, see Town of Seabrook, 144
N.H. at 666, nor that the KLP waived its right to enforce the Guest Provision,
see Town of Atkinson, 164 N.H. at 66. The plaintiffs do not explain how a de
facto policy of nonenforcement supports these claims.
Next, we turn to the plaintiffs’ selective enforcement claim. Although we
have previously noted that “it is conceivable that a pattern of nonenforcement
would be so systematic as to constitute ratification of a policy of
nonenforcement,” Alexander v. Town of Hampstead, 129 N.H. 278, 283 (1987),
we have declined to extend this dicta, see Hansel v. City of Keene, 138 N.H. 99,
103 (1993). Rather, to show that the town’s enforcement was discriminatory, a
plaintiff “must show more than that it was merely historically lax.” Alexander,
129 N.H. at 283. “Instead, the plaintiff must show that the selective
enforcement of the ordinance against him was a conscious intentional
discrimination.” Id. (quotation omitted). “[A] municipality’s failure to enforce
an ordinance does not constitute ratification of a policy of nonenforcement and,
consequently, we will not estop a municipality’s subsequent enforcement of the
ordinance.” Id. (quotation omitted). Here, the record supports the trial court’s
determination that the plaintiffs did not meet the standard for demonstrating
selective enforcement.
Finally, we address the plaintiffs’ administrative gloss claim. The
doctrine of administrative gloss is a rule of statutory construction. Nash
Family Inv. Prop. v. Town of Hudson, 139 N.H. 595, 602 (1995). An
administrative gloss is placed on an ambiguous clause of a zoning ordinance
when those responsible for its implementation interpret the clause in a
9
consistent manner and apply it to similarly situated applicants over a period of
years without legislative interference. Id. If an administrative gloss is indeed
found to have been placed on a clause, the municipality may not change such
a de facto policy, in the absence of legislative action, because to do so would
presumably violate legislative intent. Id. The trial court “assume[d] without
deciding that the Guest Provision is ambiguous” and rejected the plaintiffs’
administrative gloss argument, reasoning that the record does not show “any
prior instance in which the BOC, the ZBA, or any other entity of the KLP ever
enforced or considered enforcing the Guest Provision against similarly situated
individuals — i.e. individuals using their properties for short-term rentals —
and decided against doing so because it interpreted the Guest Provision as
inapplicable to that use.” Because the record does not show that the ZBA
“interpret[ed] the clause in a consistent manner and appl[ied] it to similarly
situated applicants over a period of years without legislative interference,” we
affirm the trial court’s denial of this claim. See id. (emphases added).
F
Finally, the plaintiffs argue that the trial court erred in its analysis of
their takings claim. The New Hampshire Constitution provides that “no part of
a man’s property shall be taken from him . . . without his own consent.” N.H.
CONST. pt. I, art. 12. “A governmental regulation can be a taking, even if the
land is not physically taken, if it is an arbitrary or unreasonable restriction
which substantially deprives the owner of the economically viable use of his
land.” Huard v. Town of Pelham, 159 N.H. 567, 574 (2009).
On appeal, the plaintiffs argue that “the trial court erred in holding that
a taking claim entitles one to a damages claim only and is not the basis to
invalidate a zoning decision.” (Capitalization omitted.) The plaintiffs assert
that they “effectively sought the same sort of declaration and finding that the
plaintiff obtained in Robbins Auto with respect to the Guest Provision and its
purported ban on rentals,” and that therefore the ordinance can be invalidated
through a takings claim. See Robbins Auto Parts, Inc. v. City of Laconia, 117
N.H. 235, 236-37 (1977).
The ZBA and the BOC contend that the takings clause does not apply
because the plaintiffs “have not cited any authority for the proposition that if a
restriction results in a taking, it can be [the] basis for invalidating an ordinance
or the application of the same.” We agree.
The plaintiffs’ circumstances here are distinguishable from those of
Robbins Auto, where the city required “all persons seeking site plan approval
on certain streets . . . to give a ten-foot easement to facilitate widening of those
streets in the future as required by traffic conditions.” Id. at 236. We reasoned
that this condition is “not a mere requirement that plaintiff not build on the
strip, but is rather a requirement which gives to the city the right to use the
10
land for a public purpose.” Id. We concluded that “[i]t is clear that if the city
were to take this easement by eminent domain, the plaintiff would have a
constitutional right to be compensated for it” and, in this way, the city “is
seeking to do indirectly what it cannot do directly.” Id. at 236-37. Accordingly,
we conclude that the trial court did not err in its takings analysis.
G
Accordingly, we reverse the trial court’s decision that the plaintiffs do not
have standing to challenge the Guest Provision as ultra vires. For the reasons
set forth above, we affirm the trial court’s decision with respect to the plaintiffs’
other arguments on appeal. We remand the case for further proceedings
consistent with this order.
Affirmed in part; reversed
in part; and remanded.
MACDONALD, C.J., and HICKS, BASSETT, and DONOVAN, JJ.,
concurred; HANTZ MARCONI, J., concurred in part and dissented in part.
Timothy A. Gudas,
Clerk
HANTZ MARCONI, J., concurring in part and dissenting in part. I agree
with the majority that the doctrine of administrative gloss is a rule of statutory
construction that guides the interpretation of an ambiguous zoning provision.
However, I disagree that to be applicable the doctrine requires an active
decision not to enforce the zoning ordinance against a similarly situated
property. In Tessier, Executor v. Town of Hudson, we found that the building
official’s practice of issuing permits to build on substandard lots (i.e., not
enforcing the lot size regulation) informed the interpretation of the town’s
“grandfather clause” and prevented a change in that policy absent amendment
to the zoning ordinance. Tessier, Ex’r v. Town of Hudson, 135 N.H. 168, 170-
71 (1991). Here, the circumstances of this case — the longstanding practice of
homeowners in the precinct renting out single-family residences without the
owner present, the testimony of a local realtor who, for decades, observed such
vacation rentals, a discussion reflected in the minutes of a September 2017
meeting of the board of commissioners acknowledging that “rentals ha[d] not
been enforced in the past,” and ZBA meeting minutes from April 2016 noting
that the ordinance “does not specifically address” “Vacation Rental By Owner”
and that “in the event that guest tenants are disturbing the peace, it is best to
call the police” — guide me to the conclusion that rentals of single-family
residences for any length of time were not intended to be prevented by the
11
Guest Provision in the ordinance. In order to provide fair notice to persons
purchasing property in a municipality, a newly regulated use should be the
result of a zoning amendment effected by the voters, and not by a change in
enforcement policy. See Win-Tasch Corp. v. Town of Merrimack, 120 N.H. 6,
10 (1980) (“If the ‘administrative gloss’ placed upon the clause over a period of
years is to be changed, the voters of [the town], not the zoning board, must
change it.”).
Accordingly, while I join the majority on all other issues, I would reverse
the trial court’s decision on administrative gloss. As noted above, the doctrine
of administrative gloss is a rule of statutory construction that guides the
interpretation of an ambiguous zoning provision. The trial court in this case
assumed without deciding that the Guest Provision is ambiguous. Under these
circumstances, I would order that on remand, the trial court shall determine
whether the Guest Provision is ambiguous. If it is, then the Guest Provision
should be construed, pursuant to the doctrine of administrative gloss, as I have
explained above.
12