Weare growth restriction ruled legal
Decision gives other towns clear authority
By MARGOT SANGER-KATZ
Concord Monitor staff
May 19. 2006 8:00AM
An ordinance in Weare designed to put large subdivisions on hold for a year was upheld by the state Supreme Court yesterday. The ruling could give other towns wide authority to stop growth as they see fit for a short period of time.
In a unanimous decision, the court found that the Weare ordinance, which prevented developers for submitting plans for more than three lots and capped the total number of building permits for a year, did not violate state law or the constitution.
"We continue to recognize that interim growth ordinances are appropriate temporary measures to control growth," said the ruling, written Justice Gary Hicks.
Weare passed its temporary growth management ordinance in 2004, after a spike in applications for new houses began to concern town officials. The planning board recommended the measure as a way to give the planning board time to review its master plan and update its capital improvement plan, according to Paul Morin, the planning board chairman.
A group of land owners and developers called the Weare Land Use Association sued the town, saying that the ordinance violated their right to have their applications reviewed by the planning board. They argued that Weare’s ordinance conflicted with a state law that guarantees all applications be accepted within a set time frame. They also argued that the law violated their constitutional rights, because the restriction on the size of the developments had nothing to do with the overall goal of limiting the number of new homes. They asked the court to throw out the ordinance and allow all applications to go forward.
A superior court judge found for the town, and the group appealed that decision to the state Supreme Court.
Since the association filed its suit, Weare reviewed its master plan and passed two permanent growth management ordinances in 2005 - one penned by the planning board, and a more restrictive one submitted by petition. The association has also challenged those ordinances, Morin said.
Sumner Kalman, the association’s lawyer and Ralph Joyce, a member, did not return phone calls yesterday.
While developers have challenged permanent growth management ordinances all over the state, including a Hooksett ordinance that was overturned this month by a Superior Court judge, there have been few challenges to temporary ordinances such as Weare’s, said the town’s lawyer, Brenda Keith. Yesterday’s ruling does not speak to the rules for permanent ordinances.
Keith said the court’s decision affirms the town’s position that towns should have authority to write temporary growth bans as they see fit. Under the law that allows the one-year measures, towns must follow rules to enact the ordinances. But Keith said the court’s opinion suggests that as long as towns follow the rules, they are free to use their judgment.
"I think this case here shows it’s really pretty broad what municipalities can do to limit growth during that one-year period to get their house in order,"she said. And I think that’s a good tool for towns to have."