Cheshire County v. City of Keene

• Court: New Hampshire Supreme Court
• Writing for the Court: PER CURIAM; GRIFFITH
• Citation: Cheshire County v. City of Keene, 314 A.2d 639, 114 N.H. 56 (N.H. 1974)
• Decision Date: 31 January 1974
• Docket Number: No. 6683,6683
• Parties: COUNTY OF CHESHIRE v. CITY OF KEENE.

Page 639

314 A.2d 639

114 N.H. 56

COUNTY OF CHESHIRE v. CITY OF KEENE.

No. 6683.

Supreme Court of New Hampshire.

Jan. 31, 1974.

Edward J. O'Brien, County Atty. (by brief and orally), for plaintiff.

Charles H. Morang, City Atty. (by brief and orally), for defendant.

PER CURIAM.

Petition for declaratory judgment requesting a determination of whether the plaintiff, in constructing a county courthouse facility within the city of Keene, is subject to the city's zoning regulations. In advance of trial, the defendant filed a motion for a disqualification of the Presiding Justice (King, J.) for the reason that he was chairman of the court accreditation commission and had participated in that capacity in the planning of the courthouse. Although the motion was denied, subject to the defendant's exceptions, the court explained that he would permit the defendant to present any evidence and would make no ruling on any question raised by the petition. All questions of law raised in these proceedings were reserved and transferred without ruling.

The primary question raised by this action, although undecided at the time this petition was filed, was resolved in Opinion of the Justices, 113 N.H. --, 304 A.2d 872 (1973), wherein we specifically gave an opinion that Cheshire County is not required to comply with the Keene zoning ordinance in the erection and construction of a courthouse. See also McGrath v. Manchester, 113 N.H. --, 307 A.2d 830 (1973). The great majority of jurisdictions supports this view, 1A C. Antieau § 7.86, at 490.90 (1966, supp.1973); 61 A.L.R.2d 970, 988 (1968), and no compelling reason has been presented to us to reexamine our opinion in that case.

The defendant contends, assuming the above, that the county convention improperly selected the site of the proposed courthouse on Armory Street in violation of RSA 24:13 and 28:7. RSA 24:13 empowers the county convention to appropriate capital and issue bonds for the erection of county buildings, whereas RSA 28:7 enables the county commissioners to erect such buildings when authorized by the convention. Fortier v. Grafton County, 112 N.H. 208, 210-211, 292 A.2d 853, 854-855 (1972). The defendant relies on O'Brien v. Rockingham County, 80 N.H. 522, 120 A. 254 (1923), and Brown v. Grafton County, 69 N.H. 130, 36 A. 874 (1896), in support of the position that only the county commissioners can select a site for a county building and assets that the decision was actually made by the convention. The plaintiff does not take issue with the defendant's characterization of the law, but rather emphasizes that the facts demonstrate that the commissioners did select the location of the site.

In reviewing the record, we have found substantial support for the plaintiff's position. There was evidence showing that the commissioners, after investigating other locations, agreed on the Armory site and recommended it to the convention as being desirable. Because the commissioners anticipated some difficulty in securing enough votes on the bond issue for the construction of the courthouse, they arranged to confer with a building committee appointed by the convention on the details of the structure's design and layout once the bond issue was approved. However this committee was to have nothing to do with the selection of the site and thus, when the convention voted on June 19, 1972, to approve the bond issue which made specific mention of the Armory site, it is clear that the commissioners had previously made the decision concerning the location of the site, and the convention merely endorsed this action.

The defendant also asserts that the convention did not comply with the notice requirements of RSA 24:9-a to 24:9-d. While the evidence is unclear as to whether or not the clerk notified the public and the members of the convention on every occasion, the record establishes that notice was given in accordance with the statute prior to all of the important meetings, namely the February 12, April 17, and June 17, 1972 public hearings on the courthouse bonds and the June 19, 1972 meeting in which the convention voted its approval of the bond issue. There is further evidence that the notice requirements were met for various other meetings in which the bond issue was discussed. Since ...