The plaintiff owns buildings on nine properties in Durham and rents each building to four to six University of New Hampshire students. Until 2002 the Durham fire marshal inspected and classified each building as a two-family duplex for purposes of the state fire code. In 2002, there was a fire in one of the buildings, after which the Durham fire marshal reviewed the classification of the buildings and notified the plaintiff that they did not qualify for classification as two-family dwellings, but were in fact lodging or rooming houses under the fire code. At that time, the plaintiff was notified to make modifications to the buildings to bring them into compliance with the state fire code regulations for lodging and rooming houses.
The plaintiff appealed the reclassification to the state fire marshal, who affirmed the Durham fire marshal’s decision. He appealed to the State Building Code Review Board and then the superior court, both of which affirmed the state fire marshal’s decision. The plaintiff next appealed to the New Hampshire Supreme Court, arguing that the reclassification of his buildings as rooming houses interfered with his vested right to use them as two-family dwellings and was an unconstitutional taking requiring just compensation. The Court disagreed, stating, “[t]he plaintiff does not have a vested right to a continued classification as a two-family dwelling for purposes of fire code application.” The Court cited Dugas v. Town of Conway, 125 N.H. 175 (1984), in which it stated, “[R]easonable regulations, aimed at promoting the health, safety and general welfare of the community may not require compensation.” The Court also quoted the Washington Supreme Court, which held: “There is no such thing as an inherent or vested right to imperil the health or impair the safety of the community.”
The plaintiff also argued that the state fire code includes a grandfather clause exempting existing uses from new requirements of the code unless there is a change in use. However, the Court agreed with the state’s argument that the fire code does not grandfather existing violations, but distinguishes between existing and new buildings and gives existing buildings reasonable time to come into compliance with the code. The Court held that the state’s interpretation of the fire code was consistent with RSA 153:5, which provides that the rules adopted by the state “shall apply to existing buildings, structures or equipment” and that “[a] reasonable time, as determined by the state fire marshal, shall be allowed to make necessary alterations.”
The plaintiff argued that the fire code improperly discriminates between related and unrelated individuals because it defines two-family dwellings as those that “include buildings containing not more than two dwelling units in which each dwelling unit is occupied by members of a single family with not more than three outsiders, if any, accommodated in rented rooms.”
The Court relied on Village of Belle Terre v. Boraas, 416 U.S. 1 (1974) in which the U.S. Supreme Court said that such regulations do not involve a fundamental right (such as voting) that would subject the regulation to the strictest constitutional scrutiny. Rather, it is a social or economic regulation that will withstand an equal protection challenge if it is rationally related to a permissible state objective. According to RSA 153:5, the purpose of the state fire code is “protection from fire and fire hazards for people in the state and for the general welfare of property and people in the state.” The state argued that the fire code’s family classification is rationally related to how people respond in case of fire. The Durham fire marshal testified before the State Building Code Review Board that people who are not related “have no vested interest in one another … to make sure each individual is safe as opposed to a single family where they are probably going to be looking out for one another[.]” The Court held that it could not find that the family classification was not rationally related to a permissible state objective.
Finally, the plaintiff argued that his right to due process was denied because he wasn’t given a public hearing before the state fire marshal. However, the Court held that the administrative rule that required such public hearings was preempted when the legislature enacted RSA 155-A:11, which provides that appeals from the state fire marshal’s decisions are to be heard by the State Building Code Review Board. “Thus no public hearing on the rule’s reasonableness was required,” the Court held.