City of Rochester v. Barcomb

• Decision Date: 19 April 1961
• Citation: City of Rochester v. Barcomb, 103 N.H. 247, 169 A.2d 281 (N.H. 1961)
• Parties: CITY OF ROCHESTER v. Albert E. BARCOMB and Lucille Barcomb.
• Court: New Hampshire Supreme Court

Page 281

169 A.2d 281

103 N.H. 247

CITY OF ROCHESTER v.Albert E. BARCOMB and Lucille Barcomb.

Supreme Court of New Hampshire.

Argued March 7, 1961.

Decided April 4, 1961.

Rehearing Denied April 19, 1961.

Fred W. Hall, Jr., City Solicitor, Rochester, for plaintiff.

Beamis & Davis, Glenn G. Davis, Somersworth, for defendants.

BLANDIN, Justice.

I.Counsel for the defendants states in his brief that they'are not attacking the validity of the ordinance on procedural grounds, but are attacking it on substantive grounds.'The essence of their claim on this phase of the matter is that the ordinance bore no relationship to the public interest and welfare nor did it contain a comprehensive zoning plan for the community, which are essential to the validity of the enactment.Kimball v. Blanchard, 90 N.H. 298, 7 A.2d 394;36 B.U. Law Review, 355, 393-396.

To establish their position the defendants rely substantially on the statement made by Councilor Michael at the April 5, 1960 meeting of the mayor and council when he recommended certain changes in the ordinance as proposed by the Planning Board.The effects of the changes were to fix the boundary between the residential and business zone on Union Street along the area of its intersection with Wakefield Street so that the defendants' property would come wholly within a residence zone, rather than being partly in this zone and partly in a business district, which was where it would have been located under the Planning Board's proposal.Although the statement made by the councilor as set forth in the agreed statement of facts contains references as to the necessity of 'growth and progress' and acting in 'the best interest of the city,' it cannot be denied that it also appears to advocate consideration for the welfare of an individual who lived in the vicinity of the defendants' property where the proposed supermarket was to be built and who was opposed to its erection.

On the other hand, another councilor, about a month later, at the May 3 meeting, urged that the public interest would be better served by the amendment, as it would preserve this area as a residential zone.Among other things, he stated: 'The corner of Union and Wakefield Streets is no place for a market of any type.This will create a traffic hazard and there is ample room outside to build a shopping center.This is a choice piece of property and should not be commercialized.'

It is conceded by the defendants that improper motives on the part of a member of the Board, if they may be said to have existed, are not a basis in themselves for invalidating the ordinance.Coleman v. School District, 87 N.H. 465, 471, 183 A. 586.However, they argue that such motives 'show light on the failure of the council to adopt a comprehensive plan or to arbitrarily discriminate against an individual, depriving him of his constitutional rights or to show that the ordinance, rather than being in the public interest or welfare is contrary to the interests of the public and its welfare.'Coleman v. School District, supra.

The issue resolves itself into whether on the record before us, in the light of all the circumstances, the ordinance is clearly 'unreasonable or unlawful.'Gelinas v. Portsmouth, 97 N.H. 248, 85 A.2d 896, 897; RSA 31:78.It appears that northerly from its junction with Union Street, Wakefield Street had always been in an extensive residential area containing many large homes and bounded on the north by an agricultural zone.As previously stated, this was the situation when the defendants bought their property.It is a well-known fact that in many cities there is today a strong tendency toward moving large shopping centers outside the compact part, when suitable space exists to do so, for the purpose of lessening the traffic and fire hazard, relieving congestion, and in general adding to the safety, convenience and attractiveness of the location.Such were the considerations, as previously stated, stressed by a proponent of the disputed amendment before it was passed at the meeting on May 3, 1960.

It is too firmly established to require extended citation that the presumption favors the validity of municipal ordinances which are not lightly to be overturned.Rockingham Hotel Co. v. North Hampton, 101 N.H. 441, 444, 146 A.2d 253.It was not necessarily arbitrary or unreasonable for the city to preserve the area here involved as residential.SeeRockingham Hotel Co. v. North Hampton, 101 N.H. 444, 146 A.2d 253, supra.The fact that in this process certain individuals were protected is not decisive against the legality of the action.Edgewood Civic Club v. Blaisdell, 95 N.H. 244, 246, 61 A.2d 517.

Viewing the entire record--including the zoning maps--we cannot say that the ordinance clearly lacks a comprehensive plan, ignores the welfare of the community or is unduly discriminatory against any particular individual.Cf.Kimball v. Blanchard, 90 N.H. 298, 7 A.2d 394.In these circumstances, we hold that the defendants have failed to sustain their burden of showing that the legislation is unreasonable or unlawful and it must therefore be held valid.Gelinas v. Portsmouth, 97 N.H. 248, 85 A.2d 896.

II.We turn now to the defendants' alternative contention that even though the ordinance be upheld, it cannot...