Schadlick v. City of Concord

• Court: New Hampshire Supreme Court
• Writing for the Court: GRIMES
• Citation: Schadlick v. City of Concord, 234 A.2d 523, 108 N.H. 319 (N.H. 1967)
• Decision Date: 31 October 1967
• Docket Number: No. 5646,5646
• Parties: James B. SCHADLICK et al. v. CITY OF CONCORD and Royal Grant, Inc.

Page 523

234 A.2d 523

108 N.H. 319

James B. SCHADLICK et al. v. CITY OF CONCORD and Royal Grant, Inc.

No. 5646.

Supreme Court of New Hampshire.

Argued Sept. 7, 1967.

Decided Oct. 31, 1967.

Perkins & Perkins, Concord, Harold W. Perkins, Concord, for plaintiffs.

Upton, Sanders & Upton and Ernest T. Smith, III, Concord, for Royal Grant, Inc.

Charles F. Keeley, City Solicitor, for City of Concord, filed no brief.

GRIMES, Justice.

The plaintiffs contend first that the ordinance is invalid because after notice of the public hearing was published, the description of the area rezoned was changed without further publication.

The ordinance as originally submitted described the area as follows: 'Beginning at a point in the center of Ormond Street approximately 230 feet northerly of the intersection of Ormond Street with Prescott Street, which point is also on the boundary line of a general residence area as it now exists; thence northerly by the center line of Ormond Street and a straight line extension thereof, to Sugar Ball embankment; thence easterly by the top of Sugar Ball embankment to a point where said embankment intersects a line drawn parallel to and 130 feet westerly of the westerly line of Eastside Drive; thence southerly by said line drawn parallel to and 130 feet westerly of the westerly line of Eastside Drive to a point which is on an easterly extension of the center line of Christian Avenue; thence easterly by said center line extension of Christian Avenue to the center line of Eastside Drive; thence southerly along the center line of Eastside Drive to a point 100 feet northerly of the northerly line of Burns Avenue; thence westerly by a line parallel to and 100 feet northerly of the northerly line of Burns Avenue and in a straight line extension of said line to the point of beginning.'

At the February 14, 1966 meeting of the board of aldermen, the proposed ordinance was referred to the Concord planning board for investigation and report and was tabled for a public hearing to be held at the regular meeting of the board of aldermen on March 14, 1966.

Notice of the public hearing, which included the boundary lines as contained in the proposed ordinance, was published in a newspaper of general circulation in Concord on February 17, 1966 and copies were posted in the city hall and police station. The planning board in its report unanimously recommended the adoption of the proposed ordinance, stating that it had originally recommended this area be zoned as an apartment house district in 1963 and that events since that time further substantiated this recommendation. The planning board did, however, recommend a change in the description of the area for the sake of accuracy by substituting the words 'approximately 130 feet northerly of the intersection of Ormond Street with Prescott Street, which point is also on a line which is a straight line westerly extension of the existing general residence district boundary line parallel to and 100 feet northerly of Burns Avenue,' in place of the words 'approximately 230 feet northerly of the intersection of Ormond Street with Prescott Street, which point is also on the boundary line of a general residence area as it now exists.'

This amendment was adopted and the ordinance in its amended form was passed by the board of aldermen on March 14, 1966, after the public hearing, without further notice being published.

RSA 31:63 provides for a public hearing at which parties in interest and citizens may be heard before such an ordinance change shall become effective. The notice requirement of that section is as follows: 'At least fifteen days' notice of the time and place of such hearing shall be published in a paper of general circulation in such...