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THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
Rockingham
No. 97-133
KENNETH C. SPENGLER & a.
v.
WALTER AND BONNIE PORTER
September 2, 1999
Tober Law Offices, P.A., of Portsmouth (Heidi E. Shealy on the brief and orally), for the plaintiffs.
Holland, Donovan, Beckett & Hermans, P.A., of Exeter (Stephen G. Hermans on the brief and orally), for the defendants.
THAYER, J. The plaintiffs, eight property owners whose properties abut property of the defendants, Walter and Bonnie Porter, appeal a Superior Court (Coffey, J.) order dismissing their petition for declaratory judgment and injunctive relief. We affirm.
The plaintiffs' petition alleged the following facts. In 1991, the defendants constructed an airstrip on their property which is located in the town of Brentwood (town). After obtaining Federal Aviation Administration approval, the defendants used the airstrip without objection from the town until July 1992. A July 12, 1992, airplane crash prompted several residents to complain to the Brentwood Board of Selectmen. The selectmen ordered the defendants to stop using their property for aircraft takeoffs and landings because such use was not permitted in a residential/agricultural district under the town's zoning ordinance.
The defendants complied with the order while supporting efforts to amend the zoning ordinance. After the town's voters twice declined to amend the ordinance, the defendants petitioned the State legislature. The legislature amended the land use statute. Laws 1996, 218:1. As amended the statute provides: "Unless specifically proscribed by local land use regulation, aircraft take offs and landings on private land by the owner of such land or by a person who resides on such land shall be considered a valid and permitted accessory use." RSA 674:16, V (Supp. 1998). Asserting that the zoning ordinance did not "specifically proscribe" their use of the landing strip, the defendants resumed takeoffs and landings.
After unsuccessfully petitioning the selectmen to issue a cease and desist order, the plaintiffs brought a petition for declaratory judgment and injunctive relief, alleging that the town's zoning ordinance specifically proscribes aircraft takeoffs and landings on private land because the zoning ordinance is permissive and the town's voters defeated amendments that would have permitted takeoffs and landings. Alternatively, the plaintiffs alleged that RSA 674:16, V is unconstitutional. Following a temporary hearing, the superior court dismissed the plaintiffs' petition as requested by the defendants in their answer. The plaintiffs' motion for reconsideration and clarification was denied.
On appeal, the plaintiffs first argue that they were denied due process of law under the State and Federal Constitutions when the trial court dismissed their petition following a preliminary hearing for injunctive relief. The defendants assert, however, that this issue is not properly preserved for appeal because it was not raised in the plaintiffs' motion for reconsideration. We agree. The plaintiffs' motion for reconsideration pointed to several alleged errors. The only statement that can be reasonably interpreted as pertaining to the propriety of the court's dismissal is: "Plaintiffs assume that only their request for temporary relief was denied since a final evidentiary hearing has not been held." Because this statement did not properly notify the trial court of any alleged constitutional error, the issue may not be raised here. See Perron v. City of Somersworth, 131 N.H. 303, 305, 553 A.2d 283, 284 (1988).
The plaintiffs next argue that the trial court erred in dismissing their petition. Accepting the plaintiffs' allegations as true, we will reverse the dismissal if those allegations are susceptible of a construction that would permit recovery and, therefore, constitute a basis for relief. Miami Subs Corp. v. Murray Family Trust and Kenneth Dash Partnership, 142 N.H. 501, 516, 703 A.2d 1366, 1375 (1997).
The plaintiffs allege that the wording of the zoning ordinance, coupled with the defeat of the proposed zoning amendments permitting aircraft takeoffs and landings, evidence the town's specific prohibition of aircraft takeoffs and landings. We begin by examining the interplay between RSA 674:16, V and the zoning ordinance. The interpretation of both the statute and the zoning ordinance is a question of law. Pheasant Lane Realty Trust v. City of Nashua, 143 N.H. 140, 142, 720 A.2d 73, 75 (1998) (interpreting statute); Tausanovitch v. Town of Lyme, 143 N.H. 144, 147, 722 A.2d 914, 916 (1998) (interpreting zoning ordinance). We construe the words and phrases used according to their common approved usage. Tausanovitch, 143 N.H. at 147, 722 A.2d at 916.
RSA 674:16, V provides:
In its exercise of the powers granted under this subdivision, the local legislative body . . . may regulate and control accessory uses on private land. Unless specifically proscribed by local land use regulation, aircraft take offs and landings on private land by the owner of such land or by a person who resides on such land shall be considered a valid and permitted accessory use.
(Emphasis added.) Thus, the statute clearly states that aircraft takeoffs and landings on private land are valid and permitted accessory uses unless specifically proscribed by local ordinance.
The plaintiffs argue that unless the use of an airstrip for takeoffs and landings is listed in the relevant zoning ordinance, such use is specifically proscribed because the ordinance states, "No other uses than those specified here will be permitted." Brentwood, N.H., Zoning Ordinance art. 3,