Price v. Planning Bd. City of Keene
| Decision Date | 25 June 1980 |
| Docket Number | No. 79-290,79-290 |
| Citation | 120 N.H. 481,417 A.2d 997 |
| Parties | Christa H. PRICE et al. v. The PLANNING BOARD CITY OF KEENE. |
| Court | New Hampshire Supreme Court |
R. J. Shortlidge, Jr., Keene, by brief and orally, for plaintiffs.
Charles H. Morang, Keene City Atty., by brief and orally, for defendant.
Bell, Falk & Norton, Keene (Arnold R. Falk, Keene, orally), for intervenors Douglas E. Osgood and Albert J. Ricci.
The principal issue before us in this case is whether the superior court erred in dismissing the plaintiffs' petition for certiorari. We affirm.
On June 28, 1979, the plaintiffs filed a petition for certiorari under RSA 36:34 (Supp.1979) with the Cheshire County Superior Court, seeking review of a decision of the Keene Planning Board, (hereinafter the board), granting approval of the Acorn Ridge Subdivision. In response to their petition, the clerk of court issued an order of notice to the board directing it to review its decision approving the subdivision and to make return to the court on or before July 20. The board did not review its decision but instead forwarded sworn or certified copies of all the letters, documents and plans relating to the subdivision, together with the documents and plans relating to the subdivision, together with the minutes of its proceedings thereon, to the court. Thereafter, the owners of the subdivision, Douglas E. Osgood and Albert J. Ricci, moved successfully to intervene in the matter. The intervenors, together with the board, moved to dismiss the petition for certiorari.
A hearing was had on these motions and on the petition on August 9, 1979, at which all parties were represented by counsel. By findings and decree dated August 17, 1979, the Court (Contas, J.) found that the "plaintiffs failed to show, in any way, that the Planning Board's decision was illegal, unjust or unreasonable . . .." Accordingly, the petition was dismissed and the plaintiffs appealed.
A review of the record below, as well as the arguments of counsel in this case, persuades us that there currently is confusion surrounding the procedural aspects of certiorari proceedings in the superior court under RSA 36:34 (Supp.1979). In the interests of clarification, therefore, our analysis of the proper procedure under this statute will be set out in some detail.
Although it prevailed below, the board here argues that as a threshold matter, certiorari should have been denied the plaintiffs because they are not "persons aggrieved by any decision of the planning board. . . ." RSA 36:34 I (Supp.1979). Although acknowledging that our decision last term in Weeks Restaurant Corp. v. City of Dover, 119 N.H. ---, 404 A.2d 294 (1979) expanded the class of persons possessing standing to appeal planning board actions, the board nevertheless argues that these plaintiffs' interest is too remote under even the new standard. We disagree.
We recognize that neither plaintiff owns property abutting the challenged subdivision. Our holding in Weeks, however, clearly abolished the earlier rule that RSA 36:34 (Supp.1979) standing was limited to abutters. Although questioned at the hearing, it appears to be conceded that the plaintiff Turetsky owns real estate situated across a public highway from the proposed subdivision. The plaintiff Price, whose property is located at an undisclosed distance from the subdivision, owns a right of way across it. It is conceded that the approved plan interferes with the location of the right of way currently utilized by the plaintiff Price. Both plaintiffs allege that the increased traffic and noise resulting from the proposed subdivision will reduce their enjoyment of their respective properties. The change in use proposed by the intervenors, namely single-family dwellings as opposed to undeveloped open space, is significant. Finally, it appears that the plaintiffs participated in the hearings before the planning board, though the degree of participation was disputed and unclear. We think that on the basis of plaintiffs' allegations, they have "demonstrated the concrete adverseness that is essential to proper judicial resolution of the issues." Weeks Restaurant Corp. v. City of Dover, supra at ---, 404 A.2d at 296. Accordingly, they have standing to seek certiorari under RSA 36:34 (Supp.1979). We note that although portions of the superior court's findings seem to indicate a contrary resolution of this issue, it nevertheless proceeded to the merits of the plaintiffs' petition. Whatever error was involved in its determination of this issue was therefore rendered harmless.
In the instant case, upon receipt of the plaintiffs' petition for certiorari, the Cheshire County Clerk of Court issued an order of notice to the board directing it to review its decision regarding the challenged subdivision and to forward to the court a copy of its entire record. The board and intervenors challenge this procedure on two grounds. First, they construe the language of RSA 36:34 II (Supp.1979) as requiring that a justice and not the clerk of the superior court review the petition to determine whether a certiorari order should issue. Second, they argue that the court erred in construing the statutory language as authorizing an order directing the board to reconsider its decision. We find both of these arguments to be well taken.
Insofar as it now concerns us, RSA 36:34 II (Supp.1979) provides:
Upon presentation of such petition the court may allow certiorari order directed to the planning board to review such decision and shall prescribe therein the time within which return thereto shall be made and served upon the petitioner's attorney, which shall not be less than ten days and may be extended by the court.
We think that the words "the court may allow certiorari" indicate a legislative intent that a justice of the court review the petition to determine whether such an order should issue. See State v. Bishop, 3 N.H. 312 (1825). In essence, a certiorari order directs the planning board to forward its record to the superior court. RSA 36:34 II (Supp.1979); 14 Am.Jur.2d Certiorari § 2 (1964). It would be anomalous to require the furnishing of the administrative record in advance of a judicial determination that the board's decision warranted review. We think it appropriate that the trial court determine from the petition, together with any other pleadings, whether a certiorari order should issue. See State v. Salvucci Inc., 110 N.H. 502, 272 A.2d 854 (1970); 14 Am.Jur.2d Certiorari § 38 (1964).
We think that the order of notice directing the board to reconsider its opinion regarding the intervenors' subdivision was also erroneous. Although the chosen language is less than precise, RSA 36:34 II (Supp.1979) does not provide the superior court with authority to order what amounts to a rehearing. See, e. g., RSA 541:3. Rather, the review mentioned in that section is to be performed by the superior court subsequent to its decision that a certiorari order should issue. The certiorari order is to allow the court to review the decisions of the board. Because the board declined to review or reconsider its opinion, this procedural error also was harmless.
The plaintiffs challenge the efficacy of the proceedings below on a more fundamental ground. They contend that RSA 36:34 III (Supp.1979) provides them a right to a full hearing before the superior court on the merits of their petition and that, as a necessary corollary, they were entitled to present evidence to the court upon the merits of their claim. The court's refusal to hear any evidence other than that contained in the board's record constitutes, in their view, reversible error. We do not agree.
In regard to hearings on petitions for certiorari, RSA 36:34 III (Supp.1979) provides:
"If, upon the hearing, it shall appear to the court that testimony is necessary for the proper disposition of the matter, it may take evidence or appoint a referee to take such evidence as it may direct . . . which shall constitute a part of the proceedings upon which the determination of the court shall be made."
We note that in certiorari proceedings generally, review is ordinarily confined to the record of the lower tribunal. Hagerty v. Shedd, 75 N.H. 393, 74 A. 1055 (1909)...
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