Agenda - Planning Commission - 11/08/1999

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Page 2 -- October 10, 1999 Z.B. Residential Use -- Neighbors seek to shut down private airstrip in residential area NEW HAMPSHIRE (9/2./99) -- In 1991, the Porters built an airstrip on their property, which was zoned residential/agricultural. After getting Federal Avia- tion Administration approval, they used it without objection until 1992. After a 1992 plane crash, several neighbors complained to the town. The town ordered the Porters to stop using their airstrip because it wasn't a permit- ted use in the zoning district. The Porters complied with the order while trying to change the zoning ordinance. After the town's voters twice declined to amend the ordinance, the Porters petitioned the state Legislature. The Legislature amended the state's land use statute to provide that "unless specifically proscribed by local land use regulations," aircraft takeoffs and landings on private land by the owner were a valid and permitted accessory use. The Porters resumed using the airstrip, claiming the town's zoning ordi- nance didn't "specifically proscribe" their use of the airstrip. A group of neigh- bors unsuccessfully petitioned the town to issue a cease and desist order. The neighbors sued the Porters. They claimed the zoning ordinance and the defeat of the Porters' proposed zoning amendment showed the town specifi- cally prohibited private airstrips. They argued that unless the use of an airstrip was listed in the ordinance it was specifically proscribed, because the ordi- nance stated "no other uses than those specified here will be permitted." The neighbors also claimed the amendment to the state land use statute was uncon- stitutional "private legislation" because it had no substantial relationship to any legitimate public purpose. They argued the statute amounted to a taking of their property because the Porters' use of their airstrip severely limited their "right to use and enjoy their property." The court dismissed the neighbors' lawsuit, and the neighbors appealed. DECISION: Affirmed. The Porters could continue to use the airstrip. The town's zoning ordinance didn't "specifically proscribe" the Porters' private airstrip, so the airstrip was a permitted accessory use under state law. The town's zoning ordinance didn't specifically refer to aircraft takeoffs and landings, it simply prohibited ail uses not listed'. The statutory amendment wasn't an invalid "private law" and didn't amount to a taking. A taking occurred if a zoning ordinance denied all economically viable use of an owner's property. The neighbors merely claimed the airstrip severely limited their fight to "use and enjoy" their property. The statute wasn't invalid special legislation because it didn't allow the Porters' to use their prop- erty any differently than other similarly situated property owners. Citation: Spengler v. Porter, Supreme Court of New Hampshire, No. 97-133 (1999).