Agenda - Planning Commission - 06/05/2008

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Zoning Bulletin landings in three of its six zoning districts, and permitted it only by c> special exception in the rural district and two other districts. Ton- nesen sought a special exception from the town's zoning board of ad- justment (the town) to use part of his property as a landing area for his helicopter. The town denied his request and subsequent motion for rehearing. Tonnesen appealed. The superior court affirmed the town's denial of a special exception. Tonnesen appealed, arguing the town's zoning ordinance violated New Hampshire Revised Statutes Annotated ~ 674:16, V, which ex- pressly allowed aircraft takeoffs and landings as an acceptable acces- sory use of private land. - DECISION: Affirmed. .~,;. The court concluded that the town's zoning ordinance did not violate the stat,e statute (N.H. Rev. Stat. Ann. ~ 674:16, V) allowing aircraft takeoffs and landings as an acceptable accessory use of private land. In reaching this conclusion, the court looked to the plain language of the state statute and of the town's ordinance. Section 674:16, V specifically provided that local goverruitents could "regulate and control accessory uses on private land," and that "[u]nless specifically proscribed by local land use regulation," aircraft takeoffs and landings on private land by the landowner or resident was a valid and permitted accessory use. The court found that under ~ 674:16, V, even if a zoning ordi- nance was permissive-prohibiting all uses for which it did not ex- pressly provid~, permission-it would not be found to prohibit the use of land for aircraft landings and takeoffs merely because it failed to list the use as a permitted use. Rather, as the language of the stat- ute provided, a town must "specifically proscribe" the use of land for that purpose. The court also found that ~ 674:16~ V established that aircraft takeoffs and landings on priv9-te land by the landowner or resident were accessory uses as a matter of law. This meant, the court said, that landowners seeking to use their property for this purpose did not need to prove that the use wa~ an accessory use because the law stated that it was an accessory use. Tonnesen argued that the town's zoning ordinance violated that statute because the ordinance allowed landowners in the rural zon- ing district to use their land for aircraft takeoffs and landings onlY,by special exception. He asserted that the statute required the town to either prohibit the use of land for that purpose outright or to permit it as a matter of right. 10 ~ .k:..... " 90 i C> (C:"\ . . ,,~ ,'~ - .-..-. I .