## Facts

- A town zoning ordinance required sign permits and prohibited signs “illuminated from within,” while allowing externally lit signs.
- Michael Asselin, a restaurant owner, obtained a permit for an externally lit sign but leased a sign capable of internal illumination.
- Town officials advised Asselin that internal illumination violated the ordinance; the zoning board of adjustment denied permission for an internally illuminated sign.
- In a related enforcement matter, the town alleged that Cardiff & Company operated a translucent sign that functioned as internally illuminated and sought injunctive relief.
- The superior court affirmed the zoning board’s decision, issued a temporary injunction regulating Cardiff’s sign, and denied requests for costs and attorney’s fees.
- Trial evidence included expert testimony that internal illumination creates a harsher visual impact on scenic views than external lighting, which softens lighting effects.

## Issues

1. Whether prohibiting internally illuminated signs while allowing externally illuminated signs violates substantive due process under the New Hampshire Constitution (and parallel federal standards).
2. Whether the ordinance is unconstitutionally vague or arbitrary in distinguishing internal from external illumination, including as applied to a translucent sign.
3. Whether costs and attorney’s fees were warranted based on alleged bad-faith enforcement.

## Decision

- The Supreme Court of New Hampshire affirmed.
- The court held the internal-illumination ban was a reasonable exercise of municipal police power and satisfied substantive due process.
- The court rejected vagueness and arbitrariness challenges and upheld enforcement against the translucent sign treated as internally illuminated.
- The court affirmed denial of costs and attorney’s fees for lack of bad faith or oppressive conduct.

## Legal Principles

- Zoning ordinances are presumed valid; challengers must show the regulation is unreasonable, arbitrary, discriminatory, or confiscatory.
- Aesthetic protection, including preservation of scenic vistas supporting a tourism-based economy, is a legitimate public purpose for zoning regulation.
- A municipality may draw distinctions within sign regulations (e.g., internal vs. external illumination) if evidence supports that the line-drawing materially advances the stated public objective.
- A regulation is not vague if it gives persons of ordinary intelligence fair notice of what is prohibited and provides workable standards for enforcement.
- Attorney’s fees and costs are generally unavailable absent bad faith, vexatious, wanton, or oppressive conduct by the opposing party.

## Conclusion

The court sustained the town’s targeted ban on internally illuminated signs because it was rationally related to legitimate aesthetic and scenic-preservation goals, was sufficiently clear for enforcement (including against a translucent, internally lit sign), and did not justify fee shifting absent bad faith.


Asselin v. Town of Conway, 628 A.2d 247 (N.H. 1993)