Standard of Review
RSA 31:39-c adopted in 2010 along with the state zoning-enabling act grants
municipalities broad authority to pass zoning ordinances for the health, safety, morals and
general welfare of the community. Boulders at Strafford, LLC v. Town of Strafford, 153
N.H. 633, 636, 903 A.2d 1021 (2006) (citing Taylor v. Town of Plaistow, 152 N.H. 142,
145, 872 A.2d 769 (2005); RSA 674:16, I (1996)). Although a town generally has the
authority under its police power to enact zoning and other related laws in the interest of
the general welfare, this authority is not unlimited. Loundsbury v. City of Keene, 122
N.H. 1006, 1009, 453 A.2d 1278 (1982.)
Due Process.
A substantive due process challenge to an ordinance questions the fundamental fairness
of an ordinance both generally and in the relationship of the particular ordinance to
particular property under particular conditions existing at the time of litigation.
Caspersen v. Town of Lyme, 139 N.H. 637, 642, 661 A.2d 759 (1995). In determining
whether an ordinance is a reasonable exercise of the municipality's police powers and,
therefore, can withstand a substantive due process challenge, the Courts have consistently
applied the rational basis test. Under this test, we consider whether the ordinance bears a
reasonable relationship to its objective and does not unduly restrict fundamental rights.
Powers v. Town of Hampton, 125 N.H. 273, 276, 480 A.2d 143 (1984).
Although an ordinance may be facially valid because it promotes the public health, safety
and the general welfare, this does not end the matter. In order to respect the property
owner's rights, it is also necessary to determine whether the ordinance is nevertheless
arbitrary and unreasonable as applied to the plaintiff's land." Metzger v. Town of
Brentwood, 117 N.H. 497, 501, 374 A.2d 954 (1977) (emphasis added). To determine
whether an ordinance is arbitrary and unreasonable, the injury or loss to the landowner
must be balanced against the gain to the public." Buskey v. Town of Hanover, 133 N.H.
318, 323, 577 A.2d 406 (1990).
Vagueness.
The vagueness doctrine rests upon the Due Process Clauses of the Fifth and Fourteenth
Amendments and applies solely to legislation which is lacking in clarity and precision."
State v. Gaffney, 147 N.H. 550, 553, 795 A.2d 243 (2002). Due process requires that an
ordinance proscribing conduct not be so vague as to fail to give a person of ordinary
intelligence a reasonable opportunity to know what is prohibited." Webster v. Town of
Candia, 146 N.H. 430, 434, 778 A.2d 402 (2001) (quoting Jn re Justin D., 144 N.H. 450,
453, 743 A.2d 829 (1999)). An ordinance is unconstitutionally vague when people of
common intelligence must necessarily guess at the statute's meaning and differ as to its
application. State v. Pike, 128 N.H. 447, 449, 514 A.2d 1279 (1986).
