Buxton v. Town of Exeter, s. 7458

• Decision Date: 31 January 1977
• Docket Number: Nos. 7458,7608,s. 7458
• Citation: 117 N.H. 27,369 A.2d 188
• Parties: Kenneth BUXTON et al. v. TOWN OF EXETER et al.
• Court: New Hampshire Supreme Court

Page 188

369 A.2d 188

117 N.H. 27

Kenneth BUXTON et al. v. TOWN OF EXETER et al.

Nos. 7458, 7608.

Supreme Court of New Hampshire.

Jan. 31, 1977.

Shute, Engel & Frasier and Robert L. Steuk, Exeter, for plaintiffs.

Kearns & Colliander, Exeter (Peter F. Kearns, Exeter, orally), for defendant Town of Exeter.

Griffin, Harrington, Brigham & Ritzo, Portsmouth (Lindsey R. Brigham, Portsmouth, orally), for intervenors Davis and Peck.

Devine, Millimet, Stahl & Branch and Robert A. Backus, Manchester, for intervenor Joseph W. Snow and by brief for Save the Oaklands Association, amicus curiae.

GRIMES, Justice.

This action arises out of an appeal from the board of adjustment of the town of Exeter and involves the question whether the trial court erred in adopting as its decree stipulations entered into by counsel for the town of Exeter, counsel for plaintiffs and counsel for intervenors Davis and Peck. All questions of law were reserved and transferred by Cann, J.

Plaintiffs sought a special exception and variance from the board of adjustment of the town of Exeter pursuant to RSA 31:72 for the operation of a gravel quarry in an area of Exeter known as the Oaklands. The board of adjustment unanimously denied plaintiffs' request because of insufficient evidence that plaintiffs would be in compliance with § 6.60(b)-(e), of the Exeter zoning ordinance which involve landscaping, screening, provision of offstreet parking and the like. Plaintiffs' subsequent request for rehearing was also denied unanimously for lack of substantial new evidence unavailable at the original hearing. Plaintiffs appealed the denial of the special exception and variance to Rockingham County Superior Court pursuant to RSA 31:77. A hearing was begun before a Master (Leonard C. Hardwick, Esq.) but was adjourned on the second day so that the attorneys and parties present could enter into stipulations that were intended to resolve the case. Stipulations were in fact drawn up that day and signed by counsel for the town of Exeter, with the approval of the selectmen of Exeter, counsel for plaintiffs and counsel for intervenors Davis and Peck. The stipulation purported to grant the special exception to plaintiffs. The court thereafter adopted the stipulation as its decree but made no findings or rulings.

Subsequently intervenors Davis and Peck who are joined by the town of Exeter in this appeal filed a bill of exceptions which was disallowed and a motion to vacate and set aside the decree, which was denied. As grounds for the bill of exceptions and motion to vacate, defendant intervenors alleged the legislature did not intend for town counsel to substitute its judgment for that of the board of adjustment and that the superior court could make no decree until it had first made the rulings of law or findings of fact required by RSA 31:78.

The town attorney with the approval of the Board of Selectmen of Exeter approved the stipulation entered into; however, the board of adjustment and not the selectmen has the power to grant special exceptions. RSA 31:72(II); Fernald v. Bassett, 107 N.H. 282, 220 A.2d 739 (1966). "It is a long...