Carter v. City of Nashua

• Decision Date: 31 July 1973
• Docket Number: No. 6634,6634
• Citation: 113 N.H. 407,308 A.2d 847
• Parties: Elliott CARTER et al. v. CITY OF NASHUA et al.
• Court: New Hampshire Supreme Court

Page 847

308 A.2d 847

113 N.H. 407

Elliott CARTER et al. v. CITY OF NASHUA et al.

No. 6634.

Supreme Court of New Hampshire.

July 31, 1973.

Leo R. Lesieur and Hamblett, Kerrigan, LaTourette & Lopez, Nashua, Joseph M. Kerrigan, Nashua, orally, for plaintiffs.

H. Philip Howorth, City Corp. Counsel, Nashua, by brief and orally, for the city of Nashua.

Devine, Millimet, Stahl & Branch and Robert A. Backus and Silas Little III, Manchester, for J. Kendall Bancroft, Yankee Greyhound Racing, Inc., and Joseph Carney, parties in interest.

PER CURIAM.

Appeal to the superior court under RSA 31:74-31:87 by approximately 700 plaintiffs from a 3-2 decision of the Nashua Zoning Board of Adjustment granting, to the defendants T. Kendall Bancroft, owner, and Yankee Greyhound Racing, Inc., by Joseph Carney, option holder, a variance of the use regulations in a light industrial district for the purpose of operating a track for dog races under the supervision of the State greyhound racing commission. RSA ch. 284 (Supp.1972).

Prior to trial, 29 additional citizens of Nashua residing in the vicinity of the proposed dog track moved to be joined as plaintiffs. The Trial Court (Dunfey, J.) took their motion under advisement as well as defendants' motion that the appeal be dismissed because the original plaintiffs did not come within the terms of RSA 31:74-31:77. Hearing, with a view, resulted in a decree dismissing the appeal. Exceptions of the parties to the admission and exclusion of evidence, to the court's findings and rulings, to the denial of their respective motions and plaintiffs' exception to the decree were reserved and transferred.

On April 4, 1972, the Yankee Greyhound Racing, Incorporated, and J. Kendall Bancroft, filed a request with the Nashua Zoning Board of Adjustment for a variance from the light industrial use regulations which governed the use of the 17 acres situated in Nashua of a slightly less than 30 acre tract located in both New Hampshire and Massachusetts. The use sought was the operation of a track for pari-mutuel dog races for which a license was obtained from the greyhound racing commission. RSA 284:16-a (Supp.1972). According to the plans submitted, Yankee was to erect on the Nashua land the track with the structures necessary for its operation and a parking facility for its employees. All parking for patrons, between 4000 to 5000 cars, was to be on that part of the tract of land situated in Massachusetts, and, if needed, on a tract adjoining it to the south.

The land in these proceedings located in New Hampshire is bounded on the west by the Daniel Webster Highway South along which there is a strip zoned general business. In Massachusetts the west boundary is Middlesex Road in Tyngsboro. On the east the whole tract is bounded by the Boston and Maine Railroad right of way along the Merrimack River. The majority of the properties in the light industrial zone along the Daniel Webster Highway are mostly all occupied by business and other commercial enterprises as are those on the opposite side of the road. The Bancroft lot involved here is the most southern of a light industrial zone which extends some 7300 feet to the north from the State line. The Massachusetts portion is zoned 'light commercial'.

On April 10, 1972, notice was given by the clerk of the zoning board that a public hearing was to be held on April 25, 1972, to consider, among other matters, the defendants' application 'requesting a variation of the use regulations in a Light Industrial District for the purpose of operating a Dog Tract as per plan.' It is not disputed that this notice was in compliance with the requirements of the Revised Ordinances of Nashua § 7874 (1968). It provides that notice of a meeting shall be given to the abutters and published in a local newspaper at least 72 hours before the date and time of the meeting.

From the minutes received in evidence the trial court found that 'the public hearing (April 25, 1972) was conducted by the board in a very thorough and open fashion. The purpose of the meeting was never in doubt. Numerous proponents and opponents had their say. Petitions and letters were welcomed and received prior to, during and after that meeting was concluded. Most, if not all, of the factual issues now raised on appeal, whether they relate to traffic congestion, diminution in value of surrounding properties, police enforcement problems, the overriding matter of public interest and the like were aired at that time.' The board voted to 'postpone decision to the May meeting with request to be sent to the proponents for a written statement as to how they purpose to solve anticipated problems with traffic on Daniel Webster (south).'

Minutes were also submitted in evidence of a 'Public Meeting of the Zoning Board of Adjustment . . . held on Tuesday, May 9, 1972 at 7:00 P.M. in the Auditorium of the City Hall.' As to this meeting the court found as follows: 'The May 9, 1972 meeting was variously labeled as an executive session in notices sent to the zoning board members and alternates as well as a public meeting in still other notices sent by mail . . . In any event, notice of this meeting was contained on the front page of a lead article appearing in the May 8, 1972, edition of the Nashua Telegraph, in which the time, place and sole purpose, together with the fact of it being a 'public meeting' was set forth. . . . In addition, a public notice was posted by Brother Millimet, counsel for Yankee Greyhound, at city hall and the probate courtroom at least 24 hours in advance of the meeting. This notice also noted the time, sole purpose, and the fact the meeting was open to the public and was signed by Mr. Palmer, chairman of the board of adjustment.

'The meeting was held, and the public was allowed to attend. Members of the board, the general public, as well as Mayor Sullivan and others stated their respective positions as did representatives of Yankee Greyhound. Mr. Robert Allard, Chairman of the State Greyhound Commission, also appeared and spoke in behalf of the Commission. Many citizens once again were permitted to register their opposition together with the reasons for it. The main reasons again centered around traffic controls, the purpose (for which) the meeting was held. However, citizens were permitted to enumerate various and other sundry reasons for their opposition. . . .

'It is further found and ruled that the public had an opportunity to make recommendations and suggestions relative to various agreements, proposals and stipulations, together with conditions regarding traffic controls, security arrangements and the like at this May 9, 1972 hearing as was the case at the public hearing of April 25, 1972. In the court's opinion, this meeting although not necessarily mandatory, involved a regurgitation of matters propounded during the April 25, 1972 hearing, with some refinements in view of the board's studies in the interim period.'

The zoning board held a meeting on May 18, 1972, at which the only item of business was a vote to retain counsel for lack of a city solicitor. On May 26, 1972, the board met privately with hired counsel to discuss the legal aspects of a memorandum of law submitted by counsel for Yankee. The court found that these meetings 'whether characterized as conferences, planning, review or work sessions are not decisive of the legal issues raised with respect to notice and the public's right to know.' We interpret this as a ruling that compliance with the notice provisions was not required or that the failure to comply has no legal consequences under the facts and circumstances of this case. We hold this to be correct and that the meetings of the board with its counsel on June 5, 1972, and prior to its executive meeting of June 6, 1972, relating to proposed conditions to be imposed if a variance was granted, are in the same category. The record does not show that new information, evidence or testimony was received at these meetings or that any final action on the variance was taken by the board. Selkowe v. Bean, 109 N.H. 247, 249 A.2d 35 (1968); 56 Am.Jur.2d Municipal Corporations § 161 (1971).

The final meeting of the board was an executive session held on June 6, 1972, after their consultation with counsel previously mentioned. The minutes of the meeting read as follows: 'After considering all the evidence submitted by the petitioners and by those attending the Public Hearings; and further, applying the tests set forth in the N. H. Statutes, case decisions and the ordinances of the City of Nashua; a motion to grant said petition, subject to stipulations agreed upon and incorporated herewith by reference was made by Donald Price. The motion was seconded by Romeo Marquis.' The names of the three members in favor and of the two against were recorded. The meeting was then adjourned. The board then announced the result to persons in attendance at the meeting place evidently gathered there as a result of a newspaper item that the board was to meet at city hall at 8:00 p.m. to review the dog track issue.

The first issue raised by the plaintiffs is that the failure of the board of adjustment to comply with the provisions of the statutes and of the zoning ordinance as to notice and openness of their meetings vitiated the granting of the variance. The Revised Ordinances of Nashua-1968 require that notice shall be given by publication in a newspaper at least 72 hours before the date and time of the meeting § 7874(c). RSA 91-A:2 (Supp.1972) provides that a notice of the time and place of meeting shall be posted in two appropriate public places or shall be printed in a newspaper of general circulation at least twenty-four hours prior to the meeting. Both RSA 31:68 and RSA ch. 94-A as well as the city ordinances (§ 7872) provide that the meetings be open to the public. The trial court ruled that the meetings of April 25 (the first hearing), May 9, and June 6, 1972 (when...