THE

STATE

OF NEW HAMPSHIRE

'::r

,_: t#try
la:r,-I - -,
/

--

lrst. Cr Norcne:n P. O. Box 94A

rr-tn.:r\.
! v - r Y v s ] /

\j{

034_a

603 356-flLA

T:.:

F-ai-:datl F.
J = : L -

-'o-pr,
j , : L j ' l

Esq.

'-

.=

d : . 1 ' - : Y . t ; l l - r - T - F l: _ r n . l . Z

North

Conwa'v',NH C:A6a- 52r0

R E: T o w n o f Doci:et lrJo.

Ba::Llett

v.

Ed Furlong

d/b/a

Lr f 'Man Snowmobrle

09-C\'-00003

En:-os--i

p1e.,Lsef rnd

Judqe Al bee's

order- cn the

Motron

to

Drsmlss.

f r t s a ! a L c

C]erk

of

Court

JC:

Tcwn cf Bartleti Ei Fri:, cnc

I I C V : ' C l _ I a T

A O C F o r m C T P 1 0 0( R e v 1 2 / ? 2 / 1 9 9 9 )

TheState New Hampshire of

Carroll, ss District Court Northern Carroll County No. 09- CV- 003LANDUSE CtTATtON) ( lN THE MATTEROF: TOWN OF BARTLETTV. EDWARDFURLONGill ORDER NMOTION O DISMISS O T The Town of Bartlett has commenced LandUse Citation a againstEdward Furlong, relative work carriedout by him on property the town.The lll to in movesto dismiss defendant claiming town'sZoningOrdinance the is unconstitutional beingvagueand subjectto arbitrary as enforcement. The Town alleges that "renovation construction and work continued the on firstobtaining building cabinson the property . . without . permiteven after a beingnotified that suchpermitwas required underthe Town of Bartlett Zoning Ordinance ArticleXVll-BAdministration, Enforcement penalties and which permit internal requires building a for and external modifications it will change if provision the ordinance value." The referenced the assessed of readsin pertinent part:" Any person, (1) firm or corporation intending moveor any way re-locate to a building, trailer, mobilehomeor otherstructure (2) intending build, or to or construct, modify(internally externally) structure taxable or property any or in ( modifications require building the Town of Baftlett internal will permitand use a permitunlesssuchmodifications not changethe legally will assessed valueof a or dailyflow of septage structure will not resultin increased e.9.,addinga bathroom, bedroom, fireplace, etc.)or (3) intending changea parcelof landor to building from one category use,including of unusedland,to another use . ."

g 2'1'"8 &ljs1 FEeEl\fF*n

The ordinance goeson to require permitto be submitted the Boardof a to Selectmen. Afterreview, Boardshalleithergrantor denythe issuance a the of Building and Use Permit. it deniesthe permit,the ordinance lf requires Board the to statein writing reasons theiraction.The Town also has a form entiiled the for "N OT IF IC A TF OR M OR ION F MINOR CHANGES pROpERTy". ZoningOr dinanc e TO The as enteredin evidence Respondent's makesno reference such a form as C to and does notappearto mandate thatthe form be completed and submitted. The form appears be a seif-reporling to mechanism ihe property for ownerro acivise the taxingofficials any changes his property of to whichin the property owner's opinion not require building do permitbut may changethe assessed a value.The form instructs when it shouldbe usedas follows. "Thisform is to be usedfor purposes the Assessor's notification to Officeof minorchanges property to which do not require building permitbut may changethe assessed a value.some examples wouldbe a changein the type of sidingon the house,replacing roof, a changein typeof flooring, changein typeof heating system, changein or insulation." plainmeaningof this language thatthe Town requires The is notification the assessors certain to of modifications whichdo not requirea buildlng permit but may change the assessedvalue. Thus,according the to ( assessors the selectmen), property a ownerdoes not needa building permitto changethe sidingon a structure, replace roof,changethe flooring, a heating system, insulation. the same time,the ZoningOrdinance or At requires building a permitif a propefty owneris goingto modifyany structure, internallyor externally,the onlyexception beinginternal modifications which will not

changethe legallyassessedvalue of a structure or increase dailyseptage flow.At best,thesetwo provisions confusing are and contradictory. theirworst, At they require property a ownerto carryout an assessment function, that is, the property ownermust determine one instance in whetherthe changeis minorand d o e sn o t re q u i re b u i l d i n g m it may change his assessed per but a value,and , i n the otherinstance internal for changes only, that the modification not will changethe assessedvalue. Whenthe courtis caileduponto construethe termsof an ordinance. the Termswill not be deemedvoidfor vagueness longas the ranguage as adequately apprises one of the standards be used in determining to whethera permitis required not.The terms of an ordinance building or mustbe framedwith sufficient clarity and in a definite and certainmannerso that an average person, afterreading will understand it, when he is violating provisions. the its lf ordinance defines terms,issues, standard, definition govern. the or the will When no definition provided the ordinance, ordinance a wholewill be is in the as examined an attempt determine meaning, the meaning be in to the or will determined accordance in withthe law,statutes, withthe intent the or of municipal bodythat enactedit, and any ambiguity wouldbe resolved by reference the apparentobjective the provision.Sformsv. Eaton,131 N.H. to of 50. Although courtwas not provided full text of the ZoningOrdinance, the the if the method determining for whethera particular modification wouldor wouldnot affectthe property's assessed valuewere detailed the ordinance, in presumably counselfor the Town would have providedit to the court.Lookingto the issueof

the Town'sintentin utilizing language ArticleXVll, B, collateral the of evidence of the Town'sintentcan be foundin the form required be filedwiththe assessors to whereinexamples givenof instances are which do not require building permit, a but may have an impacton assessed value.Thoseexamples, part,contradict in t h e Z o n i n gOrd i n a n ce , a ting am biguity cre an The Town'srequirement the propertyownerapplythe standard that of whether the assessed valueof his property will be changed placesthe property ownerin the position having knowhow assessed of to valuations determined are and what will and will not havea bearing the taxable on valueof property. While t h e To w nco n te n d s S A 7 5 :1should R have aidedM r . Fur long m aking in his determination, assessment process complicated, the determination the is and of what methodshouldbe usedin appraising particular a property best leftto the is assessor responsible valuing property.l for the The courtfindsthistask is beyond the ken of the averageproperty owner.The ordinance givesno guidance how on to makethe determination the Town'sown formsare inconsistent the and with ordinance. The motionto dismiss granted. is While the ordinance writtenmay not comportwith statutory as requirennents the zoningenabling has been lnterpreted the courts, as act by the courtsuggests Town and Mr. Furlong the determine whatconstitutes normal upkeepand maintenance his property fallswithinthe pararneters the of or of category "minorchanges property." of to The Town needsto specifically cite
Property must be appraised its full and true value in moneyas the samewouldbe appraised at in paymentof a just debt due from a solventdebtor,whetherutilizing replacement the cost approach, comparable salesmethod, capitalization incomeapproach. or of Generally, aftera methodis selected, appraiser the then applies the methodand adiusts basedon variousfactors unique the property question. to in

those partsof this project whichfall outsideof the realmof normalmaintenance. lf the property ownerexceeded rightto maintain propefty, to make his his or minorchanges suchas are enumerated the notification on form,that does not meanthe wholeproject contaminated these infractions, they exist. is by if For his part,the property ownerneedsto submitmorethan a rudimentary sketchon the backsideof a document and must makea reasonable effortto supplythe information fromwhicha reasoned determination be made can whetherhe requires building permitfor any portion the work done.Whileit is a of not the court'sroleto advise, positsthis suggestion the hopesthe parties it in will be ableto achieve resolution a without furtherlitiqation.

A u g u s1 7 , 2 0 0 9 t

\ Z--Z)r,MtAPamelaD. Albee,Justice

cc:

Town of Bartlett Randall_ F" Cooper, Esq. Douglas Mansfield, Esq. Edward Furlong

Clerk' s Notice z B/I7 /09