Fernald v. Bassett
| Decision Date | 30 June 1966 |
| Citation | 220 A.2d 739,107 N.H. 282 |
| Parties | Frederick FERNALD et al. v. Alfred BASSETT et al. |
| Court | New Hampshire Supreme Court |
Flynn, Powell & McGuirk, Portsmouth, and Raymond P. Blanchard, New Market, for plaintiffs.
Perkins, Holland & Donovan, Exeter (Robert B. Donovan, Exeter, orally), for defendants.
The town of Nottingham, on March 8, 1960, adopted a comprehensive zoning ordinance dividing the town into districts designated: General Residence and Agricultural District; Lake Residence District; and Recreational Camp District. The board of selectmen is charged with enforcement of the ordinance, the brings this petition charging that the defendants have violated Article V, s. 2, of the ordinance by commencing construction of a marina without first obtaining a permit.
Article V is entitled Lake Residence District and the pertinent provision is as follows:
It is not disputed that the 'lake improvement association concerned' is the Pawtuckaway Lake Improvement Association, a voluntary corporation in which membership is open to interested persons. It is also undisputed that the defendants propose to use their property for 'gas sales, boat liveries and grocery facilities' but have neither sought nor obtained approval of these uses as required by the ordinance.
The defendants contend that the section in question is an unlawful delegation of legislative authority, and therefore invalid. With this contention we agree.
Article V, Section 1 of the ordinance provides that the district in question 'shall be mainly a district of single family dwellings for recreational and seasonal use.' By other sections, the article forbids trailer parks, restricts the use of advertising signs, and imposes 'set back' and 'lot area' requirements. It is plain that one purpose of the ordinance was to establish lake residence districts as primarily residential in character. Dumais v. Somersworth, 101 N.H. 111, 113, 134 A.2d 700.
Section 2 of Article V, set forth above, prohibits dance halls and amusement centers, but evidences a purpose of permit limited commercial use restricted to uses for 'gas sales, boat liveries and grocery facilities,' where 'approved' by the several bodies specified by the section.
Since the ordinance contemplates that the uses in question 'may' be made upon the conditions prescribed therein, and without regard to 'unnecessary hardship,' it is evident that the establishment of a 'special exception' was intended (RSA 31:72 II), rather than a 'variance' requiring a showing of 'special conditions' resulting in 'unnecessary hardship.' RSA 31:72 III. Stone v. Cray, 89 N.H. 483, 200 A. 517; Burr v. City of Keene, 105 N.H. 228, 230, 196 A.2d 63. See Zoning in Connecticut, 29 Conn.B.J. 103, 120; Zoning Administration, 1963 Washington U.L.Q. 60, 72.
So far as the ordinance purports to confer upon the lake improvement association and the selectmen the authority and duty to decide whether an exception shall be permitted, it constitutes an unauthorized delegation of authority. Coolidge v. Planning Board of North Andover, 337 Mass. 648, 151 N.E.2d 51; Colabufalo v. Bd. of Appeal of City of Newton, 336 Mass. 213, 143 N.E.2d 536. See Ackley v. Nashua, 102 N.H. 551, 163 A.2d 6; Town of Jaffrey v. Heffernan, 104 N.H. 249, 252, 183 A.2d 246. Note, 44 Minn.L.R. 181, 183. The enabling act, under which the ordinance was adopted (RSA 31:60-89) provides for the appointment of a board of adjustment with power to 'make special exceptions to the terms of the ordinance.' RSA 31:66. Subsequent sections prescribe the powers and duties of such a board. No provision is made for the delegation of authority to private concerns such as the lake improvement association, or to the selectmen of the town, except as the latter may be...
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Cloutier v. Town of Epping, s. 82-1800
...had a severability clause and as severability is the general rule when construing zoning ordinances in New Hampshire, Fernald v. Bassett, 107 N.H. 282, 220 A.2d 739 (1966), it was scarcely an act of lawlessness for defendants to continue relying upon the ordinance's remaining provisions. Cf......
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Belkner v. Preston, 6869
...if it appears that the legislature would have enacted the statute without the offending provision. Fernald v. Bassett, 107 N.H. 282, 285, 220 A.2d 739, 742 (1966); The Employers' Liability Cases, 207 U.S. 463, 501, 28 S.Ct. 141, 52 L.Ed. 297 (1908). Because the primary purpose of RSA 556:10......
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State v. Royal
...for whatever its constitutional status may be, it would not affect the validity of the remainder of the section. Fernald v. Bassett, 107 N.H. 282, 285, 220 A.2d 739, 742 (1966); State v. Chaplinsky, 91 N.H. at 312, 18 A.2d at 757 (1941). In each of our cases, the defendant is charged with t......
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Town of Durham v. Cutter, 80-144
...unless we conclude that the town would not have enacted the site review ordinance without the invalid provision. Fernald v. Bassett, 107 N.H. 282, 285, 220 A.2d 739, 742 (1966). Since the town carefully modeled its ordinance on the enabling statute, we cannot conclude that it intended that ......