The Wilton Planning Board approved a two-lot subdivision of property owned by a forest products company that included a shared driveway with two culverts. At the time, 2002, the town’s zoning ordinance prohibited the location of structures less than 200 feet from open water and perennial streams and less than 150 feet from intermittent streams, the 100-year floodplain or any wetland. The plaintiff, Blagbrough Family Realty Trust, appealed the planning board decision to the ZBA, arguing that culverts and driveways were structures under this provision of the zoning ordinance and, therefore, were prohibited within the protected setback of a wetland.
The zoning ordinance defined “structure” as “[a]ny construction, erection, assemblage or other combination of materials upon the land which is made in such a manner as to imply that it will remain in position indefinitely or which in fact remains on the land for a period of time in excess of thirty (30) days.”
The board of selectmen, as the enforcement authority of the town, told the ZBA that it had never treated culverts as structures. The ZBA determined that the planning board’s decision not to treat driveways and culverts as structures was within the spirit of the zoning ordinance.
Blagbrough appealed the ZBA decision to the trial court, but before the case was heard, the town amended the zoning ordinance to specifically exclude culverts from the definition of “structure.” The trial court denied the appeal, ruling that the case must be decided in accordance with the provisions of the ordinance at the time of decision. Blagbrough appealed to the New Hampshire Supreme Court, which affirmed the lower court’s decision, but remanded the case for determination of whether the town was precluded by state law from amending its zoning ordinance to exempt driveways and culverts from the definition of “structure.”
On remand, the lower court determined that the zoning ordinance as amended was not preempted by state law and did not conflict with state statute or regulation. Blagbrough appealed that decision to the Supreme Court, arguing that the lower court erred in finding that driveways, culverts and outfall pipes were not structures under the town’s ordinance and that the zoning amendment excluding them from the definition of “structure” was not preempted by state law.
The Court applied its well-settled test of preemption: “State law preempts local law … when there is an actual conflict between [s]tate and local regulation. … A conflict exists when a municipal ordinance or regulation permits that which a [s]tate statute prohibits or vice versa or when a local ordinance frustrates the statute’s purpose.”
Blagbrough argued that the state law definition of “structure” in RSA 482-A, which includes culverts, is more protective than the town’s amended definition of “structure,” which does not include culverts and, therefore, the town’s ordinance frustrated the legislative intent of RSA 482-A. The Court noted that the lower court had not found a conflict between the two definitions “because they regulate two different areas.” As the lower court stated, RSA Chapter 482-A “regulates the construction of a structure in a wetlands area while the [t]own ordinance regulates the construction of a structure within a setback from such wetlands. These two definitions may be applied harmoniously.” The lower court had also found that RSA Chapter 482-A was not “so pervasive or comprehensive that it would preclude municipal regulation.”
The Supreme Court found “no error” in the lower court’s ruling and stated: “Assuming, without deciding, that the [s]tate has preempted local regulation in wetlands, municipalities may adopt local ordinances to further wetland protection in areas outside the [s]tate’s regulation.”
The Court also disagreed with the plaintiff’s argument that the state had defined the term “adjacent” regarding wetlands to include the setback areas regulated by the town’s zoning ordinance. “[L]ocal regulation within the setback area does not conflict with the [s]tate’s jurisdiction over wetlands or interfere with the [s]tate’s purpose in regulating wetlands.”