Bisson v. Town of Milford, 5825

Decision Date31 January 1969
Docket NumberNo. 5825,5825
Citation249 A.2d 688,109 N.H. 287
PartiesNorman BISSON et al. v. TOWN OF MILFORD et al.
CourtNew Hampshire Supreme Court

Lesieur & Janelle, Leo R. Lesieur, Nashua, for plaintiffs Norman and Norma F. Bisson.

William L. Edwards, Milford, for plaintiff Nathalie Comire.

Enright & Lizotte, Milford, James F. Enright, Milford, for defendant Town of Milford.

GRIMES, Justice.

The question whether the Town of Milford was authorized by RSA 31:39 to enact a certain ordinance adopted on May 24, 1965 at a special town meeting was transferred without ruling by Keller, J., partly on an agreed statement of facts and partly on facts found after hearing and a view.

The ordinance in question establishes three districts in the town of Milford which are subject to the restrictions contained in the ordinance. The area covered by these three districts constitutes but a small part of the entire town. Two of the districts are entirely residential while the third includes a supermarket and three or four multiple dwellings but otherwise consists of single dwellings. The restrictions imposed on these districts include prohibition of any but single and two-family dwellings, minimum lot areas, no more than 40% of any lot to be occupied by residential buildings, 100 foot minimum lot frontage, and prohibition of home trailers or mobile homes. The ordinance excepts existing nonconforming uses and lots smaller than minimum requirements if on record before adoption of the ordinance.

The selectmen are charged with the duty of administering and enforcing the ordinance which prescribes a fine not to exceed $10 for each day of violation. The ordinance does not provide for a board of adjustment or zoning commission and the regulations were not made in accordance with a comprehensive plan. RSA 31:61, 65, 66. No provision is made for variances. It is agreed that the procedural steps required for a zoning ordinance under RSA 31:60-89 have not been met but that the procedural steps required for the enactment of an ordinance pursuant to RSA 31:39 defining the general police powers of towns have been met.

The controversy arose when the selectmen of Milford issued a permit to the Bissons to convert into a room a part of a barn on their property located in one of the districts covered by the ordinance. Nathalie Comire claims in her bill in equity that in truth they converted a five-unit dwelling into a six-unit dwelling in violation of the ordinance in question and seeks to have the permit declared void and the Bissons restrained from using the sixth unit. She, the town and selectmen claim that the ordinance in question is valid under the general police power statute, RSA 31:39, and make no claim that it is valid as a zoning ordinance under RSA 31:60-89.

Plaintiffs Bisson claim that the ordinance as enacted is in fact a zoning ordinance and that since the Legislature has dealt separately with that part of the police power which relates to zoning, the requirements of RSA 31:60-89 must be met and that such an ordinance cannot be justified under RSA 31:39. The Bissons seek a determination of their rights by way of declaratory judgment. We agree with the contention of the Bissons.

Towns have only such powers as...

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10 cases
  • Piper v. Meredith
    • United States
    • New Hampshire Supreme Court
    • June 5, 1970
    ...and have only the powers the State grants to them.' Town of Exeter v. Kenick, 104 N.H. 168, 170, 181 A.2d 638, 640; Bisson v. Milford, 109 N.H. 287, 288, 249 A.2d 688. It follows that towns have such powers as are expressly granted to them by the Legislature and such as are necessarily impl......
  • Town of Canton v. Bruno
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • April 18, 1972
    ...A.2d 601, 603 ('Compliance with the statutory procedure was a prerequisite to any valid and effective amendment'); Bisson v. Milford, 109 N.H. 287, 287--289, 249 A.2d 688, 689 (zoning enabling act 'define(s) both the extent of the authority and the procedure to be followed in adopting . . .......
  • Beck v. Town of Raymond
    • United States
    • New Hampshire Supreme Court
    • November 17, 1978
    ...to "comprehensive regulations" which could be legally enacted only in compliance with the zoning enabling act. Bisson v. Town of Milford, 109 N.H. 287, 249 A.2d 688 (1969); See RSA 31:60. We considered the issue of the extent to which land use regulations may be enacted by a town pursuant t......
  • First NH Bank v. Town of Windham
    • United States
    • New Hampshire Supreme Court
    • March 22, 1994
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