The owner of a 230 acre parcel of land located in a rural zoning district planned to use the property, in part, for private recreational use of a helicopter. The town does not permit the use of land for aircraft takeoffs and landings in three districts, but it does allow for the use in the rural district subject to special exception permit. Following a denial of his permit request, the petitioner alleges that the town ordinance violates a State statute which provides, in part, that local governments may regulate and control accessory uses on private land, and that “Unless specifically proscribed by local land use regulation, aircraft take offs and landings on private land by the owner of such land shall be considered a valid and permitted accessory use.” See, RSA 674:16, V.
The Court noted that they have held that permissive zoning ordinances, such as the one at issue here, “prohibits uses of land unless they are expressly permitted as primary uses or can be found to be accessory to a permitted use.” The Court did not agree with the petitioner’s argument that as an accessory use, he has the right under state statute to engage in this activity without first obtaining a special exception permit because the Town has not prohibited the use outright. Stating that such argument is a false dichotomy, the Court notes that the statute specifically allows the town to “regulate and control” accessory uses on private land. The Court went on to explain that “if a town has not expressly prohibited use of land for aircraft take offs and landings, it not accept every proposed use of land for this purpose, but may accept only those proposals that comply with its regulations.” Further, the Court said that that “imposing conditions upon an accessory use does not convert it into an invalid or prohibited accessory use.” Therefore, towns are permitted, through the use of special exceptions, to protect the rights of landowners both in areas where aircraft takeoffs and landings are acceptable and area where they are not acceptable without violating state statute.
Tonnesen v. Town of Gilmanton, 2008 WL 657544 (N.H. 3/13/2008).
The opinion can also be accessed at: http://www.courts.state.nh.us/supreme/opinions/2008/tonne021.pdf
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