concurring specially: I concur in the result reached by the majority in this case. I would reach a different result under the substantive due process analysis had the plaintiffs not conceded, at the trial court and on appeal, that the ordinance was passed for legitimate purposes. Section 3.257 of the ordinance reads, in its entirety, as follows:
Mountain and Forest Conservation District. The boundaries of the Mountain and Forest Conservation District are shown on the Lyme Zoning Map. Lands in the Mountain and Forest District are extremely remote and are reserved for very low intensity land uses. The primary objective of the Mountain and Forest Conservation District is to preserve and protect Lyme’s natural heritage of large tracts of undeveloped forest land in the more remote sections of Town and thereby serve the following additional objectives: (1) encourage continuation of large contiguous tracts of forest land in private ownership to provide forest resources and outdoor recreation; (2) encourage forestry and timber harvesting and permit other compatible uses including very low intensify development that will *646allow the land to appreciate in value; (3) protect natural areas; (4) protect wildlife habitat; (5) maintain ecological balance; (6) preserve scenic views; (7) avoid the burden of unreasonable municipal expenditures for the puipose of providing municipal services to remote and difficult locations; and (8) avoid the risk to health and safely of municipal employees and volunteers of providing emergency services to remote and difficult locations.
(Emphasis added.) I would have a difficult time finding the “primary objective” of the ordinance, preserving and protecting a “heritage” of “large tracts of undeveloped forest land,” to be a legitimate zoning puipose. I also fail to understand how a fifty-acre minimum lot size requirement on residential land relates to the encouragement of commercial forestry.
Further, I believe that, given an appropriate occasion, we should review our holding in Asselin v. Town of Conway, 137 N.H. 368, 372, 628 A.2d 247, 250 (1993), that substantive due process challenges to zoning ordinances are evaluated under the rational basis standard, while equal protection challenges to those same ordinances are reviewed with heightened scrutiny. The constitutional guarantees of substantive due process and equal protection involve complementary concepts: If a challenged law burdens all persons equally when they exercise a particular right, we review the law under the due process clause, but if the law distinguishes between who may and may not exercise a particular right, then we review it under the equal protection guarantee. E.g., 2 R. ROTUNDA & J. NOWAK, TREATISE ON Constitutional Law: Substance and Procedure § 15.4, at 400 (2d ed. 1992). The difference in analysis is not based on the individual right being exercised or infringed upon; it is, rather, based on the way that the challenged law or action operates on individuals. Under the United States Constitution, the identity of scrutiny seems never to have been challenged: “Analysis under the equal protection clause of the fourteenth amendment is identical to that used under the due process clauses.” Id. § 14.7, at 370.
Ownership, use, and enjoyment of property are fundamental rights protected by both the State and Federal Constitutions. Town of Chesterfield v. Brooks, 126 N.H. 64, 67, 489 A.2d 600, 603-04 (1985); see Asselin v. Town of Conway, 135 N.H. 576, 577—78, 607 A.2d 132, 133 (1992). Zoning ordinances should be reviewed with heightened scrutiny, Brooks, 126 N.H. at 69, 489 A.2d at 604, regardless of the nature of the constitutional challenge made to them.