Sibson v. State

Equity No. 4815 (N.H. Super. Ct. September 24, 1973)

A state Water Resources Board decision denying plaintiff landowners' request for permission to fill four acres of tidal marsh on their property for the purpose of developing houses did not constitute a taking of plaintiffs' property and is upheld. Plaintiffs have failed to support their burden of proving the Board's action to be unreasonable or unlawful, and the court finds that the denial was a valid exercise of the police power rather than a taking since the marsh is a valuable part of the state's environment and would be destroyed by the filling operation. The Board's action does not render the property useless, but merely deflates its speculative value. The court notes that plaintiffs have already made a profit on the initial purchase price of the property by building and selling a house on a non-tidal portion of the tract.

Counsel for Plaintiffs
Shaines, Mardigan & McEachern
McIntosh Building
62 Congress St.
Portsmouth, New Hampshire 03801

Counsel for Defendant
Warren Rudman Attorney General
Concord, New Hampshire 03301

[4 ELR 20060]

Morris, J.

PRELIMINARY STATEMENT

This is an appeal under RSA 483-A:4(Supp.) from the denial of identical petitions filed by the plaintiffs. (RSA 483-A (Supp.)) The previous history of this litigation appears in Sibson v. State, 110 N.H. 8; 111 N.H. 305.

The Sibsons, man and wife, own approximately four acres of property, described in their petitions, located on Ocean Boulevard in Rye. They asked permission of a Special Board acting under the aegis of the Water Resources Board (RSA 483-A (Supp.)) to fill all their property and divide it into lots so that they might "develop" it; i.e., build houses upon the lots and sell them. Their petitions were denied and they appealed to the Superior Court.

There was a trial before the court with a view.

FINDINGS OF FACT, RULINGS OF LAW AND DECREE

Findings of Fact

1. The parties have agreed upon the following facts:

"A. All of the premises that are the subject of this appeal fall under the jurisdiction of RSA 483-A:1-a, I(supp), and more particularly can be described as tidal marsh lying below the elevation of three and one-half (3 1/2) feet above mean high tide, and on which grows predominantly salt meadow grass (Spartina patens) and saltmarsh grass (Spartina alterniflora).

"B. All of the premises beyond a line paralleling Route 1-A, 150 feet from the said route, are agreed to meet the public purpose standards of RSA 483-A (supp), as set forth in RSA 483-A: 1-b(supp). The parties are in dispute as to whether the remainder of the premises meet the said standards.

"C. Plaintiffs hold a deed to the premises, which shall be made a part of the record.

"D. Plaintiffs were denied, on March 25, 1971, permission to place fill on the entire portion of premises not previously filled and not containing dwellings for the purpose of constructing dwellings for sale to others, but were granted a permit to fill a strip 160 feet deep along Route 1-A to the corner where Route 1-A turns westerly.

"E. The entire record of the New Hampshire Special Board is submitted to the Court and shall be a part of the record in the matter."

2. The Sibsons have title to the salt marsh involved in these suits. This was admitted by the defendant State in 1969. See State's brief filed in No. 5916, Sibson v. State, p. 2. See also Sibson v. State, 110 N.H. 8. The state having had an opportunity then and failed to raise the issue of title, cannot do so now. Ainsworth v. Claremont, 108 N.H. 55; Archie v. Piaggio Co., 109 N.H. 162.

3. All the disputed premises meet the public purpose standards under RSA 486-A: 1-b(Supp).

4. Water from the sea flows to and from the approximately one hundred acres comprising what is known as the Awcomin Marsh, wherein the Sibson property is located, with the tides. The Sibsons' portion of the marsh is covered with water much of the time.

5. The approximately four acres of their property which the plaintiffs wish to fill is a valuable, substantial asset to the ecology of the state in general and the seacoast area in particular. It is one of the most productive areas of nutrient per acre to be found anywhere.

6. It contains a large amount of grasses, plants and a variety of animal life such as spickle back and killifish, and soft-shell clams. At times mallard ducks and other birds utilize the area. In addition to its general character as a salt marsh, the plaintiffs' property contains three pools or "pans," varying from 15-20 to 60 feet in diameter.

7. New Hampshire has a "considerable and extensive" fishery industry. The marsh plays a definite role as a nursery in these enterprises, changing nutrient in unusable form to usable nutrient.

8. The portion which the plaintiffs seek to fill is close to the bridge under which a large flow of water daily comes in and goes out with the tides. This proximity to the inlet-outlet would magnify the deleterious effect which the fill would have upon the entire one hundred acres of marsh.

9. The bad effects of the fill would spread to all parts of the marsh.

10. The fill which the plaintiffs seek to make would do irreparable damage to an already dangerously diminished and irreplaceable natural asset. "When once destroyed [it] can never be supplied." In other words, once gone, it is gone forever.

11. In summary on this phase of the matter, the proposed fill would be "bad for the marsh" and "for mankind." It would have a "very substantial" ill effect.

12. The plaintiffs purchased the entire property for $18,500 in

[4 ELR 20061]

13. In March of 1972, they sold the lot with the house they had built upon it for $75,000. The plaintiff Howard testified: "Now, at the time I sold it, I valued the house at $50,000 and the lot at $25,000."

14. The reason they moved was on account of a severe storm in which the ocean came up to their place, did approximately $800 worth of damage and so terrified Mrs. Sibson, who was not well, that they decided not to live there any longer.

15. The plaintiffs have regained their total in investment and made some profit.

16. The normal traditional uses which can be made of such a marsh as theirs include wild life observation, hunting, haying of marsh grass, clam and shell fish harvesting, and aesthetic purposes.

17. The action of the Special Board denies the plaintiffs none of these uses.

18. The loss to the plaintiffs consists of the speculative future profits which they probably could have realized from developing their property and selling lots.

19. The unfilled portion of the marsh is of practically no pecuniary value to the plaintiffs. They are paying some taxes and interest on it; the precise amount chargeable to this section of their property is unclear, but the court does not believe that it will prove to be very substantial.

20. Under the present zoning law, were the plaintiffs allowed to make their proposed fill, their profit probably would be in the neighborhood of $40,000-$50,000. At the time of the purchase of the property, under the then existing zoning ordinances, the plaintiffs' prospective profits would probably have been approximately $100,000.

21. The Special Board's denial of the Sibson petition to fill implies a finding that the Board's action was for the public good and welfare of the state and that the fill would have adversely affected the interest of the general public. This implied finding is in effect admitted by Plaintiffs' Request No. 13.

22. Both parties have at times in this prolonged litigation taken positions inconsistent with their present claims. This may be partly due to changing laws and changing concepts. In any event, in making its findings, the court has considered the entire record before it.

23. As an experienced realtor, the plaintiff Howard knew his original investment was a speculative proposition when he purchased the property in 1968. He also knew that zoning ordinances were commonplace and that, absent his making improvements in reliance upon a bona fide permit, the town might pass zoning legislation which would limit his profits. This has indeed occurred.

24. The plaintiff Howard was alwo aware in 1968 that while the ecological pot had not come quite to its present boiling stage, nevertheless change was in the air and what effect it might have upon his plans for development, no one could tell.

Court's Rulings of Law

1. The burden of proof is on the plaintiffs to show that the decision of the Board was unreasonable or unlawful and all findings of the Board upon all questions of fact properly before it are deemed prima facie lawful and reasonable and their order cannot be set aside "except for errors of law, unless the court is persuaded by the balance of probabilities, on the evidence before it, that said order or decision is unjust or unreasonable." RSA 31:78; RSA 483-A:4 (Supp.); Carter &a v. City of Nashua &a., 113 N.H. — (decided July 31, 1973).

2. Tidal waters are public waters. Sibson v. State, 110 N.H. 8; 13 N.H.J. 25, 36-38.

3. The legislature can regulate them reasonably for the public good. Sibson v. State, supra.

4. The rights of littoral owners are subject to the paramount right of the state to control them reasonably. Sibson v. State, supra.

5. If the regulation amounts to an actual taking, compensation must be paid. Sibson v. State, supra.

6. What is a taking depends on the facts in each case. Sibson v. State, supra.

7. As illustrating the definitions of the word taking, we cite both zoning cases and those involving other exercises of the police power, since it seems that the same tests should apply in determining what is a taking.

8. An owner has no vested right to be free of a zoning ordinance forbidding prospective uses. Mobil Oil Corp. v. Keene, 112 N.H. 155, 157.

9. There is no public taking unless the prohibition forbids the owner the only use of his land. Flanagan v. Hollis, 112 N.H. 222, 223.

10. Zoning which results in a decrease in value to the owner is not a taking. R.A. Vachon & Son, Inc. v. Concord, 112 N.H. 107; see also Sibson v. State, 111 N.H. 305, 307.

11. Apparently a regulation which greatly decreases value but does not render property "worthless or useless" is not a taking. Steel Hill Development, Inc. v. Town of Sanbornton, 469 F.2d 1st Cir. 956.

12. The estimated worth of property, had the owners' development plan been carried out, is irrelevant. Steel Hill Development, Inc. v. Town of Sanbornton, supra, 936. Nevertheless, such evidence was admitted by the stipulation of the parties or without objection at the hearing before the court, and we considered it.

13. Only if the land is rendered valueless, does it amount to a taking. Carter v. Town of Derry, No. 5928 (decided January 31, 1973.).

14. "To permanently deprive [a person] of the beneficial use of his property, or of the profits or income usually derivable therefrom, is not a reasonable regulation, but is an extinction of his right without corresponding compensation, and amounts to confiscation." Carter v. Town of Derry, supra.

15. Evidence of the amount of money spent in acquiring property must be excluded when the zoning law imposes restrictions on improved property. Vachon & Son, Inc. v. Concord, 112 N.H. 107, 111. Here again, such evidence was admitted by the stipulation of the parties or without objection at the hearing before the court, and we considered it.

16. To determine the reasonableness of a regulation so that it may appear that a proper use of the police power was made and that no compensation need by paid, one must balance the public benefit against the seriousness of the restrictions on the individual. Shirley v. Water Pollution Commission, 100 N.H. 294, 300. The opinion seems to indicate that unless the Board's order was "indisputably unreasonable," it will be upheld. P. 301. See also RSA 483-A:4 (Supp.), specifying that on appeal from the Board, RSA 31:78 applies.

It appears to us from the above cases that the law on what is a taking is in a confused and unclear state. Substantial authorities agree that in general this is so. Steel Hill Development, Inc. v. Town of Sanbornton, supra. "Takings, Private Property and Private Rights." Sax, 81 Y.L.J. 149

It may well be that the tests set forth in Sibson v. State, 110 N.H. 8, that each case must be decided on its facts, and that one must balance the public benefit against the seriousness of the restrictions on the individual (as stated in Shirley,) are the best that can be devised. However, in view of the problems presented here and the fact that similar ones will arise in increasing numbers and importance in the future, we hope that if there is an appeal, our Supreme Court may furnish sharper guidelines than now exist.

Rulings Upon Plaintiffs' Requests For Findings of Fact and Rulings of Law (Both contained in the same memorandum)

1. Nos. 1, 5, 7, 12, 15, 17 and 27 are granted.

2. The Court believes that the others are sufficiently covered in its findings and rulings.

Defendant's Requests for Findings of Fact

1. The Court grants Nos. 10, 12-16 inclusive, 19, 21-25 inclusive; 26 is granted in the following terms: "Any dwellings constructed on the premises might be subject to periodic storm damage."; 27-33 inclusive, 35-45 inclusive, 47, 64-67 inclusive, 69-80 inclusive, 82-85 inclusive.

2. The court considers that the remainder of the defendant's 86 requests have been sufficiently covered.

Defendant's Requests for Rulings of Law

1. The Court grants Nos. 2, 11-13 inclusive, 16, 18, 20, 22, 23, [4 ELR 20062] 29-31 inclusive, 34, 35.

2. Defendant's other requests for rulings of law, insofar as they are covered by the Court's rulings, are transferred without a ruling.

Conclusion

1. On all the evidence, the Court finds that the plaintiffs have failed to sustain their heavy burden of proof required under RSA 31:78; RSA 483-A:4 (Supp.) to reverse the Board's finding.

2. We further hold that the action of the Board falls within the ambit of police power. Therefore, no compensation need be paid. Shirley v. Water Pollution Commission, 100 N.H. 294, 300; Sibson v. State, 110 N.H. 8.

Decree

Plaintiffs' petitions dismissed. No costs to either party.