Cutter v. Durham
| Decision Date | 30 April 1968 |
| Docket Number | No. 5733,5733 |
| Citation | 109 N.H. 33,241 A.2d 216 |
| Parties | Ernest CUTTER, Jr., et al. v. DURHAM. |
| Court | New Hampshire Supreme Court |
Fisher, Parsons, Moran & Temple, Dover (Harold D. Moran, Dover, orally), for plaintiffs.
Boynton, Waldron & Dill, Portsmouth (Richard E. Dill, Portsmouth, orally), for defendant.
Appeal under RSA 31:77 from the decision of the 'legislative body' of the town of Durham which adopted an amendment to the town zoning ordinance changing an area in which the plaintiffs own property from Class A business and Residential I to Residential II. Hearing before a Judicial Referee (Blandin, Jr.), who ruled that the affirmative vote of three- quarters of the members present and voting was sufficient for the adoption of the ordinance. The Superior Court (Grant, J.) reserved the plaintiffs' exceptions to this ruling and also transferred without ruling the questions raised by plaintiffs' motion for a decree based on the pleadings and agreed facts.
The plaintiffs, in reliance on Towle v. Nashua, 106 N.H. 394, 212 A.2d 204, claim that the amendment to the Durham zoning ordinance was not validly adopted because no hearings were held before the legislative body. The Towle case, however, involved the enactment of an amendment to a zoning ordinance by a city and was decided under the provisions of RSA 31:63 which then and now bears the title 'Method of Enactment in Cities.'
The case before us involves enactment by a town, not a city, and is governed by RSA 31:63-a rather than RSA 31:63. Section 63-a as it existed in March of 1967 when the vote in question was taken (Laws 1965, 318:1) provided in part as follows: * * *'
We hold that it was the clear intention of the Legislature that the hearings required by Section 63-a governing towns be held by the planning board and that no hearing before the legislative body of a town is required. The town of Durham complied with all the requirements of Section 63-a.
This section does not grant any legislative authority to the planning board as contended by plaintiffs, but reserves to the voters the question whether to enact the amendment proposed by the planning board after the board has complied with the requirements with respect to public hearings.
Plaintiffs' contention that the submission of a zoning ordinance to the voters under Section 63-a amounts to an unconstitutional exercise of legislative power by referendum,...
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State Theatre Co. v. Smith
...266 N.Y.S.2d 847, 49 Misc.2d 93 (1966); Stec. v. Countryside of Hastings, Inc., 190 Neb. 733, 212 N.W.2d 561 (1973); Cutter v. Durham, 109 N.H. 33, 241 A.2d 216 (1968). Consequently, SDCL 11-4-5 is Finally, State Theatre argues that SDCL 11-4-5 is unconstitutional because the ultimate legis......
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McDonnell v. Town of Derry, 7301
...the selectmen (RSA 32:10), the vote under Article 12 is invalid. State v. Jenkins, 102 N.H. 545, 162 A.2d 613 (1960); Cutter v. Durham, 109 N.H. 33, 241 A.2d 216 (1968). All concurred. ...
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Town of Alton v. Fisher
...under the statute are met. Decided cases indicate petitions in other towns have been delivered to selectmen. Cutter v. Durham, 109 N.H. 33, 35, 241 A.2d 216, 218 (1968); Drown v. Hudson, 112 N.H. 386, 387, 296 A.2d 897, 898 (1972). Guided by the reasonable expectations of the property owner......
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Navin v. Town of Exeter
...(3d ed. 1972). Accordingly the town of Exeter could properly undertake to amend its zoning ordinance. RSA 31:63-a; see Cutter v. Durham, 109 N.H. 33, 241 A.2d 216 (1968). It had started such a procedure some seven weeks before Brickside filed its petition for a variance. The proposed ordina......