Pope v. Town of Hinsdale Planning Board

HORTON, J., dissenting: In RSA 674:32 (Supp. 1992), the legislature mandated that any municipality “permitting manufactured housing parks shall afford realistic opportunities for the development and expansion of manufactured housing parks.” There is no question that the Town of Hinsdale, in its 1989 amendment to its zoning ordinance, eliminated any “realistic opportunity for development or expansion” when it provided “[n]o permit for a new manufactured housing park or for the enlargement or expansion of an existing manufactured housing park shall be issued in the Town of Hinsdale.” The question remains whether Hinsdale is a municipality “permitting manufactured housing parks”? I would find that it is. *239 First, I would find that once a municipality has elected to satisfy its manufactured housing obligation under RSA 674:32 by permitting the establishment of manufactured housing parks, it is thereafter charged, by that statute, with providing the “realistic opportunities” for those parks established. We should not countenance allowing a municipality, which has permitted establishment of parks, to summarily freeze the rights of those who acted under the park option by changing its pick on how it will satisfy its manufactured housing obligation. Mr. Pope acquired the manufactured housing park in 1983. Although the full history of the status of the park is not clear from my review of the record, the provisions of the 1985 Hinsdale ordinance, in effect prior to the challenged amendment, provided for “mobile home parks” by special exception. Pre-1989, manufactured housing parks were a permitted use. Second, there is no question in my mind that, under the terms of the amended ordinance, existing manufactured housing parks are a permitted use. The prohibition against manufactured housing parks forbids the establishment or operation of a new manufactured housing park. Existing manufactured housing parks are expressly permitted by the terms of the ordinance and are, therefore, conforming uses. They are not categorized, either expressly or by implication, as nonconforming uses. The majority reasons that the permitted use language is, in reality, merely a restatement of what Hinsdale is required to accept under the law of nonconforming use. Many zoning ordinances deal with the issue of nonconforming uses by eliminating them from the terms of the ordinance. Other ordinances ignore the problem, realizing that enforcement may not be possible. The Hinsdale ordinance makes no mention of nonconforming use. It permits existing trailer parks under the terms of the ordinance and imposes a permitting requirement, including a substantial fee, every five years. The majority correctly defines a nonconforming, or grandfathered, use as continuing use of one’s property after the enactment of a zoning ordinance that prohibits such use. Only new manufactured housing parks are prohibited. Existing manufactured housing parks are permitted and regulated. The regulation violates the terms of RSA 674:32. I would reverse and remand. BATCHELDER, J., joins in the dissent.