Trottier v. City of Lebanon, 7539

• Decision Date: 28 February 1977
• Docket Number: No. 7539,7539
• Citation: 117 N.H. 148,370 A.2d 275
• Parties: Robert L. TROTTIER v. CITY OF LEBANON and Lebanon Zoning Board of Adjustment.
• Court: New Hampshire Supreme Court

Page 275

370 A.2d 275

117 N.H. 148

Robert L. TROTTIER v. CITY OF LEBANON and Lebanon Zoning Board of Adjustment.

No. 7539.

Supreme Court of New Hampshire.

Feb. 28, 1977.

Gardner & Clauson, Hanover (K. William Clauson, Hanover, orally), for plaintiff.

Decato & Cirone, Lebanon (R. Peter Decato, Lebanon, orally), for defendant.

BOIS, Justice.

In 1974 plaintiff Robert Trottier purchased at auction a five-acre lot situated in the city of Lebanon in an area zoned for 'Residential and Farming' uses. The lot fronts for 250 feet on 'Old King's Highway,' an unmaintained public road referred to on a subdivision plan as a 'right-of-way unknown.' After the purchase, plaintiff unsuccessfully sought a residential building permit from the building inspector. The zoning board of adjustment upheld the decision denying a permit and denied a request for a variance. The city zoning ordinance requires 250 feet of frontage 'along the nearest street,' and the board reasoned that Old King's Highway was not a 'street' within the meaning of the ordinance. On appeal to the Superior Court (Johnson, J.) the decision was affirmed. Plaintiff's exceptions have been reserved and transferred.

The evidence shows that plaintiff's lot is part of a proposed subdivision in an area known as Slayton Hill. The trial court found on conflicting evidence that the subdivision had been approved only on the condition that the developer, one Dr. Myric Wood, or the lot owners would bring Old King's Highway, the only access route to several of the lots including plaintiff's, up to city standards. There is no dispute that Old King's Highway, in its present condition, provides only the most limited type of access. The road is little more than a path, characterized by narrow width and a rough surface grade. During much of the year, the way is rendered virtually impassable by either mud or snow. When it is passable, a four-wheel drive vehicle is advisable for the journey. The chief of the city fire department testified that it would be 'totally impossible' for motorized fire equipment to travel the road in its present condition. The parties agree that Old King's Highway is a Class VI highway, defined in relevant part as 'highways which have not been maintained and repaired by the town in suitable condition for travel thereon for five successive years or more.' RSA 230:4 VI.

The zoning board of adjustment held that 'street' as used in the relevant portion of its zoning ordinance meant a Class V highway or better as defined in the statute; i.e., that 'street' should not encompass roads unsuitable for travel. The board also looked to the subdivision regulations for aid in interpreting the zoning ordinance. While the regulations give varying meanings to the word street in varying contexts, they require that streets in a future subdivision shall meet minimum standards before becoming part of the official map. The board thus reasoned that 'street' should mean ways accepted by the city as defined in the subdivision regulations.

Relying on less restrictive meanings given to 'street' in other parts of the zoning ordinance and subdivision regulations and in the general case and statutory law of New Hampshire and other jurisdictions, plaintiff contends that the board's interpretation is erroneous.

The construction of the terms of a zoning ordinance is a question of law. Tremblay v. Hudson, 116 N.H. 178, 355 A.2d 431 (1976); Metzger v. Brentwood, 115 N.H. 287, 343 A.2d 24 (1975). The proper inquiry is the ascertainment of the intent of the enacting body. Tremblay v. Hudson, supra; Spicer v. Claremont, 104 N.H. 461, 189 A.2d 496 (1963). Where the ordinance defines the term in issue, that definition will govern. Battcock v. Rye, 116 N.H. 167, 355 A.2d 418 (1976). Where, as here, no definition is provided in the ordinance itself, we must look to the ordinance as a whole and attempt to discern the meaning intended by the framers. Tremblay v. Hudson supra. The administrative construction of the ordinance by the zoning authorities is neither conclusive nor binding, but is entitled to consideration. Spicer v. Claremont supra.

The defendant zoning board's interpretation of street operates to exclude ways unsuited to expeditious travel. It is true, as plaintiff contends, that in many contexts the word street has been given a more expansive construction than that adopted by the board. However, the focus of our inquiry must be whether the board's definition of street is proper in light of the evident purpose of the zoning restriction of which the term is a part. See Dole v. New York, 182 Misc. 408, 44 N.Y.S.2d 250 (Sup.Ct.1943).

The ordinance here requires frontage on a 'street.' The evidence purpose of such a requirement is to insure that a dwelling 'may be reached by the fire department, police department, and other agencies charged with the responsibility of protecting the public peace, safety and welfare.' Mitchell v. Morris, 94 Cal.App.2d 446, 448-49, 210 P.2d 857, 859 (1949); see Restivo v. Princeton Constr. Co., 223 Md. 516, 165 A.2d 766 (1960); Brous v. Smith, 304 N.Y. 164, 106 N.E.2d 503 (1952). It follows that this purpose is defeated if the purported access route is not suitable for travel. See Iddings v. Board of Appeals, 356 Mass. 742, 255 N.E.2d 604 (1970); Restivo v. Princeton Constr. Co., supra; Brous v. Smith, supra; Mitchell v. Morris, supra; cf. Siegemund v. Building Comm'r, 259 Mass. 329, 156 N.E. 852 (1927)....