Morin v. City of Somersworth

• Decision Date: 12 December 1988
• Docket Number: No. 87-401,87-401
• Citation: 551 A.2d 527,131 N.H. 253
• Parties: Kenneth E. MORIN v. CITY OF SOMERSWORTH and Somersworth Planning Board.
• Court: New Hampshire Supreme Court

Page 527

551 A.2d 527

131 N.H. 253

Kenneth E. MORIN v. CITY OF SOMERSWORTH and Somersworth Planning Board.

No. 87-401.

Supreme Court of New Hampshire.

Dec. 12, 1988.

Ouellette, Hallisey, Dibble and Tanguay P.A., Dover (William L. Tanguay on the brief), by brief for plaintiff.

Shaheen, Cappiello, Stein & Gordon P.A., Dover (Dorothy M. Bickford on the brief), by brief for defendants.

BATCHELDER, Justice.

The defendants, the City of Somersworth and the Somersworth Planning Board, have appealed an order of the Superior Court (Nadeau, J.), which approved the report of a Master (Charles T. Gallagher, Esq.) ruling that the planning board had committed an error of law when it denied approval of the plaintiff's site plan application. Because we find that the planning board committed no error, we reverse.

The facts in this case are not in dispute. The plaintiff, Kenneth Morin, owns a parcel of land that has 105.07 feet of frontage on Stackpole Road in Somersworth. Morin proposed to build thirty-six apartment units on the site and submitted an initial site plan application to the planning board for review. This application was rejected because the proposed development lacked the 200 feet of frontage along a public right-of-way required by the Somersworth Zoning Ordinance, § 19.3C, 4(b). Subsequently, Morin's engineer, after working with the City's director of planning, submitted a second application. This second application included a proposed road called Sweet Meadow Circle which, if accepted by the City, would have provided sufficient road frontage to satisfy the City's zoning requirements. At the time of his proposals, Morin had not petitioned the City to lay out his new road. After a public hearing on April 16, 1986, the board denied Morin's application because the proposed road had not been accepted by the City, and therefore the plaintiff's proposal lacked the requisite road frontage.

Morin appealed the board's decision to the superior court pursuant to RSA 677:15. After an evidentiary hearing, the master recommended, and the court ordered, that the appeal be dismissed for the same reasons that the planning board had denied the plaintiff's site plan application.

Morin then moved to set aside the verdict or for a new trial. Upon reconsideration, the master reversed his initial decision and recommended remanding the case to the planning board. The master found that the board was "empowered to give conditional approval to the plaintiff's site plan by requiring the posting of a bond for the completion of" Sweet Meadow Circle. The master based his decision on § 22A.10 of the site plan regulations, which allows the planning board to require a bond to ensure proper construction of specified improvements to property. The superior court approved the master's recommendation to reverse the planning board's denial and to remand the application for further consideration in light of the master's report. The City and its planning board then appealed the superior court's order.

The central issue in this case is whether the planning board properly denied the plaintiff's site plan application because it failed to comply with the terms of Somersworth's zoning ordinance. That ordinance, Chapter 19, requires a minimum frontage of 200 feet. § 19.3C, 4(b). The plaintiff concedes in his brief that his site plan does not comply with the terms of the zoning ordinance if the frontage on his proposed street is not included in the planning board's review.

The definitions in an ordinance will govern when the terms of the ordinance are at issue. Trottier v. City of Lebanon, 117 N.H. 148, 150, 370 A.2d 275, 277 (1977). In this case, the ordinance defines frontage as "the length of the lot bordering on the public right-of-way." § 19.2F. The ordinance defines right-of-way to mean and include "all city, state, and federal highways and the land on either side of same as covered by statutes to determine the width or right of way." § 19.2B. Thus, to determine what part of the plaintiff's land borders on a public right-of-way depends on the definition of highway, a term not defined in the City's zoning ordinance.

The relevant part of RSA 229:1, however, defines highway as a road which has been "dedicated to the public use and accepted by the city or town" in which the road is located. See also Polizzo v. Town of Hampton, 126 N.H. 398, 401, 494 A.2d 254, 256 (1985). In this case, the plaintiff's road has been proposed but not accepted by the City. Because the creation of a highway requires both dedication and acceptance, the plaintiff's proposed road is not a highway within the meaning of the statute. Consequently, the plaintiff's proposed road is not a public right-of-way as defined by the Somersworth zoning ordinance...