Bedford Residents Group v. Town of Bedford, Planning Bd.

• Decision Date: 11 July 1988
• Docket Number: No. 87-396,87-396
• Citation: Bedford Residents Group v. Town of Bedford, Planning Bd., 547 A.2d 225, 130 N.H. 632 (N.H. 1988)
• Parties: BEDFORD RESIDENTS GROUP v. TOWN OF BEDFORD, PLANNING BOARD, Grove Realty Trust & Roland & Diane Auger.
• Court: New Hampshire Supreme Court

Page 225

547 A.2d 225

130 N.H. 632

BEDFORD RESIDENTS GROUP v.TOWN OF BEDFORD, PLANNING BOARD, Grove Realty Trust & Roland & Diane Auger.

No. 87-396.

Supreme Court of New Hampshire.

July 11, 1988.

Brennan Professional Ass'n, Manchester (Ronald J. Caron on the brief and orally), for plaintiff.

Upton, Sanders & Smith, Concord (Barton L. Mayer on the brief and orally), for defendantTown of Bedford.

Wadleigh, Starr, Peters, Dunn & Chiesa, Manchester (Eugene M. Van Loan, III, on the brief and orally), for defendant Grove Realty Trust.

JOHNSON, Justice.

The defendants' appeal follows the plaintiff's successful challenge to the validity of a zoning amendment adopted by Bedford's 1986 town meeting.The Trial Court(O'Neil, J.), finding that the plaintiff(hereinafter property owners) had been denied the notice of the proposed zoning change that is required by RSA 675:7, III, granted the plaintiff's motion for summary judgment and denied the defendants' motion to dismiss and motion for summary judgment.We affirm.

The principal issue is whether the publication and posting by the Bedford Planning Board of documents that indicated that the board would be considering "amendments to the zoning ordinance and zoning map," and that "copies of ... the proposed amendments to the zoning ordinance and zoning map ... are on file for public inspection in the Selectmen's Office," provided sufficient notice to the plaintiff's members that their properties might be affected by the proposed rezoning.We conclude that the notice provided was not sufficient to satisfy the requirements of RSA 675:7.

This appeal arises out of a series of events that commenced on December 10 1985, when a group of registered voters in Bedford petitioned to have placed on the warrant for the 1986 town meeting an article that called for the rezoning of a particular parcel of land from Residential/Agricultural to Apartment/Residential.The petition defined the land in question as follows:

"That parcel of land currently owned by Violet Starita located easterly of the easterly end of Bedford Street, southerly of the Manchester Town Line and westerly of the other land of Violet Starita, currently zoned Commercial.Said parcel containing 15.064 acres and being more particularly bounded and described in Exhibit A attached hereto."

The planning board made available to the public, in the selectmen's office, the petition and a portion of the tax map showing the Starita property, designated as "area to be rezoned."The planning board then prepared a "Legal Notice," in accordance with RSA chapter 675, of its public hearing on several proposed zoning amendments, including the one at issue.The notice stated that a hearing would be held "on Tuesday, January 28, 1986, at the McKelvie School" and that the hearing was "for the purposes of considering ... proposed amendments to the zoning ordinance and zoning map as submitted by the Planning Board and as submitted by petitions of the voters."The notice also stated that "[c]opies of ... the proposed amendments to the zoning ordinance and zoning map as submitted by the Planning Board and as petitioned articles are on file for public inspection in the Selectmen's Office."The planning board posted the notice in the Bedford Public Library and in the town office building.Both the Manchester Union Leader and the Bedford Merrimack Bulletin published it.

At the January 28 hearing, the planning board voted to recommend approval of the proposal at the town meeting in March.The selectmen thereafter prepared the town warrant, wherein they included as Article 20 the petition to rezone the Starita property.On February 24, copies of the warrant were posted at the public library, the town office building, the town hall and the McKelvie School.The warrant was subsequently published in the town report, which was made available to all Bedford voters prior to the town meeting.A copy of the warrant was also posted at the polls on Election Day, March 11.The voters approved the zoning amendment at the town meeting.

The sixteen members of the Bedford Residents Group are owners of property located in the vicinity of the Starita parcel; two are residents of the city of Manchester whose properties abut the Starita parcel.The property owners contend that they lacked actual knowledge that a change had occurred in the zoning of that land until August, 1986, when, as abutters, they received notice from the planning board of a forthcoming hearing concerning a site plan submitted to the board by Bradgate Associates and Grove Realty Trust.Bradgate and Grove Realty were seeking to construct a condominium development on the recently rezoned land.

On August 18, 1986, the property owners attended a meeting of the planning board at which Bradgate and Grove Realty presented their proposed site plan.At that meeting, the property owners argued that they had not received proper notice of the January 28 hearing.They also presented to the board a protest petition challenging the rezoning, which the board referred to the town attorney.At its next meeting, the board reported back to the property owners that, pursuant to consultations with counsel, it had concluded that the zoning amendment had been adopted according to proper procedures and, therefore, that "the zoning stands."The property owners nonetheless attended subsequent planning board hearings concerning the site plan, including the February 16, 1987 meeting at which the board approved the plan.On February 17, the property owners filed a petition for declaratory judgment in the superior court requesting that the rezoning be voided.

Shortly after filing the petition for declaratory relief, the property owners also filed an appeal, pursuant to RSA 677:15, from the planning board's approval of the site plan.This appeal raised the same claim of invalidity regarding the rezoning as the petition for declaratory judgment had raised.The superior court consolidated the two actions by agreement of the parties.The defendants filed motions to dismiss both actions, arguing that they were barred by virtue of not having first been brought before the Bedford Board of Selectmen on a motion for rehearing pursuant to RSA 677:2.The parties entered into a stipulation of documents and facts, on the basis of which they subsequently filed cross motions for summary judgment.

On June 4, 1987, the superior court issued an order denying the defendants' motions to dismiss, denying the plaintiff's motion for summary judgment and granting the defendants' motion for summary judgment.The court concluded that the legal notice that the Bedford Planning Board had provided was "consonant with RSA 675:7."

The property owners filed a timely motion for reconsideration.After a hearing, the court reversed its earlier rulings on the parties' respective motions for summary judgment, granting the plaintiff's motion and denying the defendants' motions.The court determined that the notice furnished by the Bedford Planning Board"does not withstand constitutional scrutiny" and "does not satisfy the statute,"RSA 675:7.The defendants thereupon filed a timely notice of appeal to this court.

The defendants argue, first, that the trial court erred in holding that the legal notice by which Bedford announced its January 28, 1986 public hearing failed to apprise the plaintiff's members of the proposed rezoning of the Starita property.They contend that that document satisfied all statutory requirements of fair notice regarding zoning amendments.

The defendants point out that individuals who might be affected by a zoning amendment are not entitled under RSA 675:7 to receive notice of the proposed amendment, but are entitled, instead, only to constructive notice.They note that RSA 675:7, II states that "[t]he full text of the proposed master plan, zoning ordinance, ... or amendment need not be included in the notice if an adequate statement describing the proposal and designating the place where the proposal is on file for public inspection is stated in the notice."In the defendants' view, this language clearly authorizes the incorporation of a zoning amendment by reference.They conclude that the legal notice published by the Bedford Planning Board furnished constructive notice because it clearly stated that the board would consider changes in the zoning ordinance and map at the hearing and that the full text of the proposed changes was available at the selectmen's office.The proposed amendments were incorporated into the legal notice by reference.

The property owners counter that the trial court correctly ruled that the legal notice announcing the January 28 hearing was statutorily inadequate.We agree.

While the property owners need not be afforded actual notice of the proposed zoning change, RSA 675:7 requires that they be afforded constructive notice sufficient "to inform the public of the essence and scope of the zoning regulation under consideration."Carbonneau v. Town of Exeter, 119 N.H. 259, 265, 401 A.2d 675, 679(1979)(quoting1 R. Anderson, American Law of Zoning§ 4.14, at 246 (3d ed. 1986)).

The notice given in Carbonneau was nevertheless sufficient because it clearly indicated "[a]n amendment to the Town of Exeter Zoning Map by delineating the boundary lines between districts to follow property lines, streets and power lines as shown on the map displayed in the Town Clerk's office."Carbonneau, supra at 266, 401 A.2d at 679.The notice in R.A. Vachon, Inc. v. City of Concord, 112 N.H. 107, 112, 289 A.2d 646, 649(1972)(citingSchadlick v. City of Concord, 108 N.H. 319, 234 A.2d 523(1967)) was also sufficient because it indicated that the proposed zoning ordinance represented a "comprehensive revision" of the existing ordinance.Id.The constructive notice offered in both cases was "sufficient to apprise those interested in the proposed changes."Id.112 N.H. at 111, 289 A.2d at 649.

The...