## Facts

- The Town of Chester adopted a zoning ordinance permitting multifamily housing only within “planned residential developments” (PRDs).
- PRDs required mixed housing types and a minimum project size of about 22 acres.
- Only about 1.73% of the town’s land area (two parcels) was zoned to allow PRDs.
- The ordinance gave the planning board broad discretion to determine whether proposals met PRD purposes and to impose conditions.
- The ordinance authorized the board to retain, at the applicant’s expense, outside professionals (e.g., engineer, hydrologist) to assist in compliance review.
- A trial master found the open-ended review process and uncapped professional-cost obligation created a major financial deterrent to multifamily development and could interfere with financing.
- Low- and moderate-income residents and a developer challenged the ordinance as effectively excluding low- and moderate-income multifamily housing in a predominantly single-family “bedroom community” lacking municipal sewer and water service.

## Issues

1. Whether the multifamily/PRD restrictions were an invalid exercise of municipal zoning power under the zoning enabling statutes because they failed to provide for the lawful needs of the community and to serve the general welfare.
2. Whether the proper remedy was invalidation of the entire zoning ordinance or only the offending portions with time for municipal correction.
3. Whether a court may grant a “builder’s remedy” allowing a proposed development to proceed upon a showing the proposal is reasonable.

## Decision

- The court held the ordinance invalid to the extent it effectively excluded low- and moderate-income multifamily housing and thus failed to provide for the lawful needs of the community under the enabling statutes.
- The court reversed the wholesale invalidation of the entire zoning ordinance, allowing nonoffending provisions to remain temporarily in effect while the town was given reasonable time to amend.
- The court affirmed the builder’s remedy, concluding it is an appropriate judicial remedy when the plaintiff proves the proposal is reasonable.
- The court declined to decide constitutional claims because statutory grounds resolved the dispute.
- Disposition: affirmed in part and reversed in part.

## Legal Principles

- Municipal zoning authority is delegated by the State and must conform to the zoning enabling statutes, including the requirement to serve the general welfare and provide for the lawful needs of the community.
- “General welfare” and “community” for zoning validity analysis may require consideration of regional effects, not solely municipal boundaries.
- Growth controls may not be used to exclude outsiders, particularly disadvantaged economic or social groups, through measures that effectively bar affordable or multifamily housing.
- Trial-court approval of a master’s findings is upheld on appeal unless unsupported by the evidence or erroneous as a matter of law.
- Courts should avoid functioning as a superzoning board; when feasible, they may invalidate only offending provisions and allow time for legislative correction.
- A builder’s remedy may be granted after a finding of unlawful exclusionary zoning if the developer proves by a preponderance of the evidence that the proposed development is reasonable—offering a realistic opportunity for low- and moderate-income housing while remaining consistent with sound zoning and environmental concerns.

## Conclusion

The court treated exclusionary multifamily restrictions as statutorily invalid because they effectively barred low- and moderate-income housing and failed to meet regional general-welfare obligations, rejected total invalidation of the zoning scheme, and approved a builder’s remedy for a developer who proved a reasonable affordable-housing proposal.


Britton v. Town of Chester, 134 N.H. 434 (1991)