Bourassa v. City of Keene, 5583

• Decision Date: 06 October 1967
• Docket Number: No. 5583,5583
• Citation: 234 A.2d 112,108 N.H. 261
• Parties: Kenneth A. BOURASSA v. CITY OF KEENE et al.
• Court: New Hampshire Supreme Court

Page 112

234 A.2d 112

108 N.H. 261

Kenneth A. BOURASSA v. CITY OF KEENE et al.

No. 5583.

Supreme Court of New Hampshire.

Argued May 2, 1967.

Decided Oct. 6, 1967.

Arthur Olson, Jr., and Lewis A. McMahon, Keene, for plaintiff.

Howard B. Lane, Keene, for intervenors, Theodore J. Jette and Alice G. Jette.

Eric J. Kromphold, Jr., City Sol., for City of Keene, filed no brief.

KENISON, Chief Justice.

The question raised in this case is whether a party can appeal the decision of a board of adjustment to the Superior Court without first applying for a rehearing before the board. RSA 31:74 in pertinent part reads as follows: 'Motion for Rehearing. Within twenty days after any order or decision of the board of adjustment * * * any party to the action or proceedings, or any person directly affected thereby, may apply for a rehearing in respect to any matter determined in the action or proceeding, or covered or included in the order, specifying in the motion for rehearing the ground therefor, and the board of adjustment * * * may grant such rehearing if in its opinion good reason therefor is stated in said motion.'

If RSA 31:74 stood alone it could be argued that the application for a rehearing was optional and permissive. But it does not. The succeeding section (RSA 31:75) provides in part that 'No appeal from any order or decision of the board of adjustment * * * shall be taken unless the appellant shall have made application for rehearing as herein provided. * * *' Furthermore the statute allowing an appeal is definitely tied in with the motion for rehearing. '31:77 Appeal from Decision on Motion for Rehearing. Within thirty days after the application for a hearing is denied, or, if the application is granted, then within thirty days after the decision on such rehearing, the applicant may appeal by petition to the superior court.'

The statutory scheme for zoning contemplates that the parties shall exhaust their administrative remedies prior to the court appeal. Annot. 136 A.L.R. 1378. See Bois v. City of Manchester, 104 N.H. 5, 177 A.2d 612; 2 Yokley, Zoning Law and Practice, s. 13-10 (3d ed. 1965). While there is no decision in this state that holds that the failure to apply for a rehearing prevents a valid appeal, that is the clear import of H.I.K. Corporation v. City of Manchester, 103 N.H. 378, 381, 172 A.2d 368.

It is contended that in this case a motion for rehearing would have been useless. Generally such motions do not result in change at...