Calawa v. Town of Litchfield

Decision Date24 July 1972
Docket NumberNo. 6266,6266
Citation112 N.H. 263,296 A.2d 124
PartiesLeon CALAWA, Jr., et al. v. TOWN OF LITCHFIELD.
CourtNew Hampshire Supreme Court

Winer, Lynch & Pillsbury, Nashua (Robert W. Pillsbury, Nashua, orally), for plaintiffs.

Leo R. Lesieur, Nashua, by brief and orally, for defendants.

GRIFFITH, Justice.

At the annual Litchfield town meeting held on March 10, 1970, an amendment to the town zoning ordinance was enacted prohibiting the construction of multiple family dwellings of three or more dwelling units. Prior to the town meeting plaintiffs had applied for permits to construct multiple family unit dwellings permitted by the existing ordinance. Initially this permit was denied under the authority of RSA 156:3-a (supp.) because of the pending proposed amendment, and finally refused following its adoption. On appeal to the Superior Court Loughlin, J. found that the town had failed to comply with the notice requirements of RSA 31:63-a before adoption of the amendment.

Laws 1970, 70:2 legalized the votes and proceedings of a number of town meetings of Litchfield including the meeting of March 10, 1970. The trial court reserved and transferred without ruling the question of whether the legislative act effectively cured the invalid enactment of the amendment. The town does not dispute the trial court's ruling that the zoning amendment was invalid in its enactment but relies upon the curative legislative act.

Validating votes and proceedings taken at town meetings by legislative act and thus curing minor defects and irregularities has long been accepted procedure in New Hampshire. Eastman v. McCarten, 70 N.H. 23, 45 A. 1081 (1899); Jennison v. Oyster River Coop. School District No. 2, 99 N.H. 424, 113 A.2d 117 (1955); Exeter v. Kenick, 104 N.H. 168, 181 A.2d 638 (1962). The rights affected by such valid curative legislation are of a public, political nature called into existence by the legislature and thus subject to its control. Curative legislation may validate any past act which the legislature could have authorized originally or make immaterial any requirement which it might have omitted from the original legislation but it, cannot invade a constitutionally protected interest. Eastman v. McCarten, supra; 5 McQuillin, Municipal Corporations s. 16.94 (1969 rev. vol.).

In determining whether the act in this case effectively cured the defective enactment of the zoning amendment by the town meeting it is necessary to consider what constitutional rights of the plaintiff are involved and the constitutional authority of the legislature. 'All men have certain natural, essential and inherent rights-among which are, . . . acquiring, possessing, and protecting, property; . . .' N.H. CONST., pt. I, art. 2. This constitutional right is not unlimited and does not prevent states in the exercise of their police powers from passing laws respecting the acquisition, enjoyment and disposition of property. Crowley v. Christensen, 137 U.S. 86, 11 S.Ct. 13, 34 L.Ed. 620 (1890). The statutory method by which authority was delegated to towns and cities to enact zoning ordinances has been held a proper exercise of the police power. Sundeen v. Rogers, 83 N.H. 253, 141 A. 142 (1928).

In recognizing the necessity of some flexibility in solving the constitutional conflicts that arise between legislative power and individual rights the concern has been to retain the essential effectiveness of both. 'The true view is that both of these provisions of the fundamental law (one granting legislative power and one reserving individual rights) are to be considered together as interdependent, the one qualifying and limiting the other; otherwise it would result that due effect could not be given to both at the same time. Neither is supreme in a sense that would deprive the other of its effectiveness as a part of the fundamental law.' State v. Ramseyer, 73 N.H. 31, 34, 58 A. 958, 960 (1904).

'The test usually employed in this state to determine the constitutionality,...

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8 cases
  • Royer v. State Dept. of Employment Sec.
    • United States
    • New Hampshire Supreme Court
    • October 17, 1978
    ...before deprivation of a property interest. Burgess v. City of Concord, 118 N.H. ---, 391 A.2d 896 (1978); Calawa v. Town of Litchfield, 112 N.H. 263, 296 A.2d 124 (1972). The United States Supreme Court has also set out a balancing test under the due process clause which utilizes three the ......
  • Rye Beach Village Dist. v. Beaudoin
    • United States
    • New Hampshire Supreme Court
    • January 31, 1974
    ...the proceedings of 1937, since the notice of the meeting was adequate to satisfy due process requirements under Calawa v. Litchfield, 112 N.H. 263, 296 A.2d 124 (1972), and was such notice as the legislature 'could have authorized originally'. Id. at 264, 296 A.2d at 125; see Mullane v. Cen......
  • City of Keene v. Gerry's Cash Market, Inc., 6409
    • United States
    • New Hampshire Supreme Court
    • April 30, 1973 mandatory provision of statute or city charter. Commonwealth v. Chace, 403 Pa. 117, 168 A.2d 569 (1961); cf. Calawa v. Town of Litchfield, 112 N.H. 263, 296 A.2d 124 (1972). If the city council chose to waive or disregard its own rules of order its action is not to be invalidated for tha......
  • Green v. Shaw
    • United States
    • New Hampshire Supreme Court
    • September 30, 1976 that the city council of Rochester cannot ratify noncompliance with the requirements of State statutes. Calawa v. Litchfield, 112 N.H. 263, 296 A.2d 124 (1972). This is based on the principle that the legislature, and not the city council, has sole authority over these matters. See Rye ......
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