Growth law is shot down
By Patrick Cronin
June 2, 2006
HAMPTON - A Rockingham County Superior Court judge has ruled the town’s growth ordinance approved at March Town Meeting is "invalid and unenforceable."
The ruling by Judge Kenneth McHugh issued last week means the ordinance brought forward by resident Tammy Deland is off the books, according to Town Manager James Barrington.
McHugh stated in his decision the ordinance "lacked careful study," was "confusing" and was not based on a "solid statistical study. "
"There is no doubt that Tammy Deland made a good faith effort to address an issue which she believed to be a concern of all citizens of the town of Hampton by drafting her proposed ordinance," McHugh stated. "Unfortunately for Ms. Deland, through no fault of her own, the ordinance which she drafted and which citizens approved cannot be enforced."
The ordinance’s intent was to limit growth in town by 2 percent, but, as the Planning Board noted, it doesn’t curb growth at less than its current rate.
The 2-percent cap would allow for 152 new building permits each year, and last year only 50 permits were issued.
McHugh agreed with the town’s position that the ordinance doesn’t curb growth and discriminates against out-of-town developers by allowing fewer permits than allowed for developers living in Hampton.
"The town of Hampton would obviously be subjected to liability if it enforced the ordinance’s unreasonable restraints on the exercise of rights in private property," McHugh stated.
The judge also compared the ordinance to the one passed in Hooksett. That ordinance was deemed invalid by a judge for the same reason as Hampton’s because of lack of a solid statistical base.
Deland said she was disappointed in the verdict and plans to file a motion to reconsider with the judge.
"I don’t think the town should have been handed everything they wanted on a silver platter," Deland said. "A citizen should not be sued for filing a petition. The town had other options. It could have not enforced it or wait for a lawsuit.
"I guess if you file a petition in this town, this is what is going to happen to you."
Deland also said she plans to write another growth ordinance for next year’s annual Town Meeting
"I’m not giving up on it," Deland said. "But next time I’ll do it the right way."
The town filed the suit last month against Deland on the advice of Town Attorney Mark Gearreald, who was concerned that if the town didn’t get a legal ruling on the ordinance it could be sued by a developer.
At the time, Gearreald said the article doesn’t curb growth, speaks for the Planning Board and limits the number of permits that can be issued to outside developers.