Britton v. Town of Chester
1991 N.H. LEXIS 95, 134 N.H. 434, 595 A.2d 492 (1991)
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Rule of Law:
A zoning ordinance's validity is measured by its compliance with the state's enabling statute, which requires it to promote the general welfare of the community, including the welfare of the surrounding region. An ordinance that fails to provide a realistic opportunity for the construction of its fair share of the region's low- and moderate-income housing is an invalid exercise of the town's zoning power.
Facts:
- The Town of Chester, a 'bedroom community' near Manchester, is projected to have a high growth rate but its housing stock consists principally of single-family homes.
- Plaintiffs George Edwards and Roger McFarland are residents with low and moderate incomes, respectively, who have been unable to find adequate, affordable housing within the town.
- Plaintiff Raymond Remillard, a builder, has owned a 23-acre parcel of land in Chester since before 1979 and has repeatedly been denied permission to build a moderate-sized multi-family housing development.
- Chester's initial zoning ordinance excluded multi-family housing from all five zoning districts in the town.
- The town later amended its ordinance to permit multi-family housing, but only within 'planned residential developments' (PRDs).
- These PRDs were restricted to only 1.73% of the town's land and were subject to onerous, subjective requirements by the town planning board, including forcing the developer to pay for the town's professional consultants, making such projects economically unfeasible.
Procedural Posture:
- A group of low- and moderate-income individuals and a builder, Raymond Remillard (plaintiffs), filed a petition for declaratory and injunctive relief in the New Hampshire Superior Court against the Town of Chester (defendant).
- The case was heard by a Master, who made factual findings and recommended that judgment be ordered for the plaintiffs.
- The Master's recommendation included ruling the town's land use ordinances invalid and awarding plaintiff Remillard a 'builder's remedy' to proceed with his project.
- The Superior Court approved the Master's report and ruling.
- The Town of Chester appealed the Superior Court's decision to the New Hampshire Supreme Court.
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Issue:
Does a town's zoning ordinance, which effectively forecloses the construction of affordable multi-family housing, violate the state's zoning enabling statute by failing to promote the general welfare of the regional community?
Opinions:
Majority - Batchelder, J.
Yes, a town's zoning ordinance that effectively forecloses the construction of affordable multi-family housing violates the state's zoning enabling statute. The statutory requirement to promote the 'general welfare of the community' extends beyond the town's own borders to include the welfare of the surrounding region. Municipalities, as subdivisions of the state, cannot use their zoning power to build a 'moat' around themselves and exclude persons of low or moderate income. The Chester ordinance's restrictive and subjective requirements for multi-family housing do not provide a realistic opportunity for the development of affordable housing, thus failing to meet its obligation to the regional community and rendering the ordinance invalid as applied. Furthermore, a 'builder's remedy' is appropriate to grant specific relief to a developer who successfully challenges an exclusionary ordinance, ensuring that needed housing is built and the plaintiff's efforts are rewarded.
Analysis:
This case establishes the 'regional general welfare' doctrine in New Hampshire, significantly limiting a municipality's power to enact exclusionary zoning. It mandates that towns must consider their 'fair share' of regional housing needs, particularly for low- and moderate-income individuals, when crafting land use regulations. The decision empowers developers and housing advocates to challenge ordinances that, while facially neutral, have the practical effect of excluding affordable housing. By adopting a 'builder's remedy,' the court also created a powerful incentive for plaintiffs to litigate these cases, as a successful challenge can result in a court order permitting the proposed development to proceed.
