Conery v. City of Nashua

• Decision Date: 04 October 1960
• Citation: 164 A.2d 247,103 N.H. 16
• Parties: Roland A. CONERY et al. v. CITY OF NASHUA and Grand Union Company.
• Court: New Hampshire Supreme Court

Page 247

164 A.2d 247

103 N.H. 16

Roland A. CONERY et al. v. CITY OF NASHUA and Grand Union Company.

Supreme Court of New Hampshire.

Argued Sept. 7, 1960.

Decided Oct. 4, 1960.

Clancy & O'Neill, Aaron A. Harkaway, Frank Clancy, Jr., Nashua, for plaintiffs.

Sullivan & Gregg and Sherman D. Horton, Nashua, for defendants.

BLANDIN, Justice.

The defendants' first contention is that the Court erred in the hearing before it in permitting the plaintiffs to introduce evidence which had not been presented to the zoning board of adjustment. It is true, as the defendants claim, that there is now no trial de novo before the Court under RSA 31:78. Gelinas v. City of Portsmouth, 97 N.H. 248, 249, 85 A.2d 896.

However, RSA 31:82 states: 'All evidence transferred by the board of adjustment * * * shall be, and all additional evidence received may be, considered by the court regardless of any technical rule which might have rendered the same inadmissible if originally offered in the trial of an action at law.' Courts have often taken a view in zoning appeal cases, regardless of whether one was taken by the board, and such evidence is often significant. Suprenant v. Nashua, 101 N.H. 43, 45, 131 A.2d 632. The 1949 amendment (Laws 1949, c. 278, § 2) which changed the procedure in some respects on appeals did not change RSA 31:85 which provides in part that 'the court may take evidence * * *.' No limitation on this procedure is expressed or implied anywhere in RSA ch. 31, and § 82, in stating that 'All additional evidence received may be considered by the court,' unquestionably contemplates that the Court may receive additional evidence. Cf. RSA 541:14. Neither in the Gelinas nor the Suprenant cases, relied upon by the defendants, did our Court adopt any contrary doctrine, as this would clearly have been in derogation of section 82. In the Gelinas case we noted that 'Great liberality in the admission of evidence is the policy of the legislature in these cases.' Id., 97 N.H. 250, 85 A.2d 899. This rule applies to proceedings both before the board and the Superior Court. However the receipt of additional evidence by the Superior Court on appeal presents a preliminary question for that court as to whether the proffered evidence tends to show that the order of the board was unjust or unreasonable. RSA 31:78. In this case, the Trial Court set aside the decision of the board for lack of any evidence to support it. It follows that additional evidence received by the Court cannot be said to have prejudiced the defendants' rights. The defendants' exceptions to the admission of additional evidence by the Court are overruled.

The defendant Grand Union Company's argument that the Court erred in ruling that there was no evidence on which it could be found that the company would suffer any unnecessary hardship within the meaning of the statute if the application for a variance were denied, does not require extended consideration. The hardship referred to in RSA 31:72, subd. III must be to one whom the statute was designed to protect. We do not believe that an option holder is such a one (Tripp v. Zoning Board of Review of City of Pawtucket, 84 R.I. 262, 123 A.2d 144) and therefore the defendant company's contention cannot prevail.

The Simoneaus, although they do not appear as parties in the petitions, were found by the Court to have acted through their agent, Grand Union Company, in requesting a variance. The Court has...