Bosse v. City of Portsmouth

• Court: New Hampshire Supreme Court
• Writing for the Court: LAMPRON
• Citation: Bosse v. City of Portsmouth, 107 N.H. 523, 226 A.2d 99 (N.H. 1967)
• Decision Date: 27 January 1967
• Parties: Elmer A. BOSSE et al. v. CITY OF PORTSMOUTH et al.

Page 99

226 A.2d 99

107 N.H. 523

Elmer A. BOSSE et al. v. CITY OF PORTSMOUTH et al.

Supreme Court of New Hampshire.

Argued Dec. 7, 1966.

Decided Jan. 27, 1967.

John J. Wholey, Portsmouth (by brief and orally), for plaintiffs.

John C. Driscoll, City Sol., furnished no brief for City of Portsmouth.

Shaw & Eldredge, Exeter (Carleton Eldredge, Exeter, orally), for defendant Pace Industrial Corporation.

LAMPRON, Justice.

The City of Portsmouth has had zoning in effect since 1951. On January 4, 1965 it adopted a new ordinance which was later declared invalidly enacted. On March 21, 1966 the present zoning ordinance was adopted by the city council.

On October 15, 1965, defendant Pace Industrial Corporation, a business corporation employing handicapped persons, purchased for $15,000.00, 9.7 acres of land on the southwesterly side of Ocean Road in Portsmouth. 4.2 acres thereof, as found by the Master, or 4.6 acres, as stated in Pace's brief, are located in Portsmouth and the remainder is in Greenland. This difference of .4 acres in the area located in Portsmouth being immaterial to the decision the figure 4.2 acres will be used hereafter. When purchased by Pace, the Greenland part of the land was zoned residential and was changed by a variance to light industrial on January 17, 1966. The Portsmouth land had been zoned residential until rezoned by an amendment to the 1965 zoning ordinance on February 7, 1966 to 'Limited Industrial.' It was given this same classification in the 1966 ordinance.

The plaintiffs are owners of real estate located on Ocean Road and Banfield Road which, like the Pace property before it was rezoned, is in a 'Single Residence-1' classification, the most restrictive type of zoning district under the 1965 and 1966 ordinances. The plaintiffs petitioned for a re-hearing when the 1965 ordinance was amended on February 7, 1966 and also when the 1966 ordinance was adopted on March 21, 1966. The latter re-hearing resulted in the defeat by a tie vote of a motion to re-zone the Pace property to its prior classification of 'Single Residence-1' (SR1). Plaintiffs thereafter filed this appeal and are properly entitled to question the validity of the 1966 ordinance which classified the Pace property 'Limited Industrial (LI).' Towle v. Nashua, 106 N.H. 394, 396, 212 A.2d 204.

The plaintiffs first attack the validity of the 1966 ordinance on the ground that the city council failed to first appoint a zoning commission as required by RSA 31:65 before enactment of the ordinance. Under this statute 'Such commission shall make a preliminary report and hold public hearings thereon before submitting its final report, and such legislative body shall not hold its public hearings or take action until it has received the final report of such commission.' However under RSA 36:11 (Laws 1935, 55:14) a 'planning board shall have all powers heretofore granted by law to the zoning commission of a municipality.' It is undisputed that the City of Portsmouth had such a planning board when the 1965 and 1966 ordinances were adopted.

There was evidence that prior to the adoption of the 1965 ordinance, on January 4, 1965, the planning board conducted public hearings thereon pursuant to RSA 31:65. There was further evidence that such hearings were held on each amendment to the 1965 ordinance including the amendment adopted February 7, 1966 rezoning the Pace land from 'SR1' to 'LI.' The 1965 ordinance and the amendments thereto constitute essentially the 1966 ordinance in question here.

On March 4, 1966, at the city council meeting preceding its meeting of March 21 when the 1966 ordinance was adopted the following communication was received from the Chairman of the Planning Board.

'The Planning Board at a joint meeting held February 28, 1966 with the Board of Adjustment, and in consideration of the ordinance known as the 'Revised Zoning Ordinance' (proposed 1966 zoning ordinance) voted unanimously as follows:

'Whereas the Planning Board has considered and has held public hearings on the so-called 1965 Zoning Ordinance and amendments thereto by the Planning Board, and as prescribed by the Council, the Planning Board does hereby reaffirm its votes on said Ordinance and amendments, and recommends favorable action by the City Council and Board of Adjustment.'

The records of that council meeting contain the following: 'Mr. Violette (City Manager) explained the new proposed ordinance to the Council and said all the amendments and revisions of the prior ordinance since it was adopted January 4, 1965 were contained therein.' No question is raised as to the validity and legality of the public hearing held before the city council prior to the adoption of the 1966 ordinance. RSA 31:63 (supp.)

The evident purpose of public hearings to be held by a zoning commission (RSA 31:65) or a planning board (RSA 36:11) and by the city council itself (RSA 31:63 (supp.)) is to insure that the current views of local residents will be taken into account by the council when it considers the enactment of a proposed ordinance. It stands to reason that this purpose would be thwarted if an unreasonable time intervened between the hearings and the adoption of the ordinance. Cf. Gricus v. Superintendent and Inspector of Buildings of Cambridge, 345 Mass. 687, 189 N.E.2d 209 (interval of over 5 years). In the present case the planning board held duly called public hearings on the regulations, restrictions, and boundaries contained in the 1966 ordinance for a period extending from March 1964, when it considered these provisions as contained in the 1965 ordinance, to December 15, 1965 when it held a public hearing on the amendment to rezone the Pace property from 'SR1' to 'LB'. As previously stated herein, on February 28, 1966 the planning board reaffirmed its votes on the 1965 ordinance and amendments and recommended favorable action by the city council on the 1966 ordinance which incorporated these provisions.

We hold proper the Master's ruling adopted by the Trial Court 'that the requirements of Chapter 31, Section 65, were met and, although a Zoning Commission was not appointed, this was not necessary because there was in existence a Planning Board with all the powers of a Zoning Commission, and this Planning Board had full authority to act.'

The plaintiffs' appeal next contends that 'the Zoning Ordinance of the City of Portsmouth, 1966 is invalid, illegal, and void in that prior to the public hearing and passage of the second and third readings of said ordinance no official Zoning Map setting forth location of bounds of districts were available or on file for the public in the offices of the City Clerk, Inspector of Buildings, City Manager, and the Planning Board as required by Section 19-103A of the so-called Zoning Ordinance of 1966.'

The evidence is uncontradicted that the Mayor signed a zoning map on March 22, 1966, the day after the adoption of the zoning ordinance by the city council. It is also uncontradicted that from the day after the first notice of the public hearing was published a map identical with the one signed later by the Mayor was available to the public in the offices of the city clerk, building inspector, planning board, and city manager. There is no doubt that a zoning map contains important information which should be available to 'parties in interest and citizens' (RSA 31:63 (supp.)) a reasonable time before the public hearing to be held by the city council before the adoption or amendment of a zoning ordinance. This map should also be available at reasonable locations, those named in the ordinance being such locations. However there is no statutory requirement that such map or maps be signed by the Mayor or other executive officer to make them official maps at that stage of the proceedings provided they are identified by printing thereon or otherwise as being maps referred to in the proposed ordinance.

We hold that the Master properly ruled that the procedure followed in this case as to a zoning map was in substantial compliance with the statutory requirements. McKinney v. Riley, 105 N.H. 249, 252, 197 A.2d 218. We further hold that the zoning ordinance adopted by the city council of Portsmouth on March 21, 1966 was validly adopted. We reserve, however, for consideration hereinafter the validity of its classification as 'Limited Industrial' of the 4.2 acre of Pace land located on the westerly edge of a 'Single Residence 1' district of about 800 acres.

The plaintiffs' final contention is that the rezoning of the Pace property is 'unreasonable, arbitrary, discriminatory and unlawful' as said rezoning constitutes 'spot zoning"; it is 'contrary to and in violation of the comprehensive requirements as set forth in the Master Plan of the City of Portsmouth and the Zoning Ordinance of 1966 and the enabling legislation'; it 'was not done to meet any special safety or health problems and no public necessity is shown'; it 'is contrary to good zoning practice'; and 'there has been no substantial change in the use of the property rezoned or of the general area'.

The Master has made the following findings: 'The area out of which the 4.2 acres was zoned Limited Industrial by the new Zoning Ordinance, consists of about 800 acres of land, which has been zoned Residential since 1951.' 'The record in this case is bare of any evidence that there was any public necessity or convenience involved in changing this particular area from a Residential Zone to a Limited Industrial Zone. There was no testimony at the hearing and there is no evidence to be found in the records of the City Council meetings and the Planning Board meetings * * * that the change would enhance and promote the development of the community as a whole. The only evidence is that the re-zoning would be an economic benefit to Pace Industrial Corporation and meet the needs of Pace * * * for a new building at a price that Pace * * * was willing to pay.'

'There was no...