Rye Development Co., Inc. v. Town of Greenland

• Court: New Hampshire Supreme Court
• Writing for the Court: GRIFFITH; This is a petition for declaratory judgment filed to contest the validity of an amendment to the zoning ordinance of the town of Greenland. In accordance with the agreement of the parties, various questions of law were reserved and transfer
• Citation: Rye Development Co., Inc. v. Town of Greenland, 363 A.2d 427, 116 N.H. 520 (N.H. 1976)
• Decision Date: 31 August 1976
• Docket Number: No. 7394,7394
• Parties: RYE DEVELOPMENT COMPANY, INC. v. TOWN OF GREENLAND.

Page 427

363 A.2d 427

116 N.H. 520

RYE DEVELOPMENT COMPANY, INC. v. TOWN OF GREENLAND.

No. 7394.

Supreme Court of New Hampshire.

Aug. 31, 1976.

Taylor & Gray and William J. Hurley, Portsmouth (Hurley orally), for plaintiff.

Shute, Engel and Frasier and Robert L. Steuk, Exeter (David C. Engel, Exeter, orally), for defendant.

GRIFFITH, Justice.

This is a petition for declaratory judgment filed to contest the validity of an amendment to the zoning ordinance of the town of Greenland. In accordance with the agreement of the parties, various questions of law were reserved and transferred in advance of trial on the merits by Cann, J.

On November 2, 1974, the defendant held a special town meeting for the purpose of voting upon a proposed amendment to the existing town zoning ordinance. Prior to the voting, a protest petition purporting to contain the signatures of the owners of twenty percent of the area included in the proposed zoning change was filed with the town officials. Under RSA 31:64, the effect of such a petition is to require a favorable vote of two-thirds of those present and voting to enact a zoning ordinance amendment, instead of the simple majority which would otherwise suffice. The proposed amendment was approved by a majority, but failed to receive a two-thirds favorable vote. Upon examination of the petition after the meeting, the town moderator declared it to be without effect because it did not contain 'a sufficient properly listed amount of acreage or sufficient legal signatures.' He accordingly ruled that the simple majority vote approving the zoning ordinance amendment prevailed. Plaintiff's motion for a rehearing brought pursuant to RSA 31:74 (Supp.1975) was denied by the town selectmen, and the instant action was initiated.

Both parties agree that under RSA 31:78, the burden of proof is upon the plaintiff to show that the decision of the town moderator and selectmen holding the petition invalid was unreasonable or unlawful. The first question we are asked to decide is whether the mere introduction of the protest petition, without any authentication of the signatures or the claimed acreage contained therein, is sufficient to satisfy this burden.

In addition to placing the burden of proof on the party seeking to set aside the decision of a municipal legislative body, RSA 31:78 provides that all findings made by such a body upon all questions of fact properly before it 'shall be deemed to be prima facie lawful and reasonable;...