Shaw v. City of Manchester
| Decision Date | 03 September 1980 |
| Docket Number | No. 79-239,79-239 |
| Citation | 120 N.H. 529,419 A.2d 394 |
| Parties | Robert SHAW v. CITY OF MANCHESTER |
| Court | New Hampshire Supreme Court |
Wadleigh, Starr, Peters, Dunn & Kohls, Manchester (Eugene M. Van Loan, III, Manchester, orally), for plaintiff.
Wiggin & Nourie, Manchester (William S. Orcutt, Manchester, orally), for defendant.
The issues in this case are whether the trial court applied the appropriate standard of review on an appeal from the Manchester Zoning Board of Adjustment, and whether it properly overruled the decision of that board. We answer both questions in the affirmative.
On October 15, 1975, V. S. H. Realty, Inc., was denied a building permit to construct a grocery store/gasoline station in a residential (R-2) zone in the City of Manchester. V. S. H. appealed to the Manchester Zoning Board of Adjustment for a variance and special exception, and at a hearing held on November 3, 1975, the board unanimously denied the application. On November 21, 1975, V. S. H. moved for rehearing. The rehearing took place on January 5, 1976, and by a three-to-two margin, the board reversed its earlier decision and granted V. S. H. a special exception that permitted the construction of a convenience store with two gasoline pumps. On January 12, 1976, the plaintiff, Robert Shaw, filed a motion with the zoning board for a new rehearing. On January 20, 1976 the board denied the motion. The plaintiff appealed to the Superior Court of Hillsborough County on February 10, 1976. V. S. H. moved to dismiss the appeal on the ground that it was untimely because it had not been filed within thirty days of the original rehearing. The superior court conducted a hearing on the issue and denied V. S. H.'s motion. V. S. H. excepted and appealed to this court. On March 24, 1978, we upheld the decision of the superior court and remanded the case for a trial on the merits. Shaw v. City of Manchester, 118 N.H. 158, 384 A.2d 491 (1978).
During the trial on the merits, the Trial Court (Wyman, J.) heard expert testimony concerning the traffic effects of the proposed use. The board of adjustment had not heard this evidence at the time it granted the variance and special exception to V. S. H. although the result would have been immaterial, the trial court forwarded a transcript of this testimony to the members of the zoning board who had taken part in the decision to grant the variance. The four living members, two of whom were in favor and two of whom were opposed, stated that their vote would not have differed even if the expert testimony had been available to them at the time of their decision. On July 31, 1979, the superior court issued a decree setting aside the variance and special exception on the grounds that the board's decision was "unreasonable." The defendant appealed the decision pursuant to Supreme Court Rule 7.
The defendant argues that the standard of judicial review set forth in Cook v. Sanbornton, 118 N.H. 668, 392 A.2d 1201 (1978) should not be applied retroactively to this case. We disagree.
We decided Cook in October 1978. The trial on the merits in this case took place four months after Cook. Although litigation in this case began before the Cook decision was rendered, that does not preclude its retroactive application. In Cook, this court examined the standard of review to be used by a trial court on an appeal from a zoning board decision, as set forth in RSA 31:78. In that decision, we conceded that the standard of review required by the statute, as interpreted in such cases as Vannah v. Town of Bedford, 111 N.H. 105, 276 A.2d 253 (1971) and Sweeney v. Dover, 108 N.H. 307, 234 A.2d 521 (1967), was tantamount to no review whatsoever. The Cook decision was expressly made retroactive in the recent case of Carey v. Westmoreland, 120 N.H. ---, 415 A.2d 333 (1980).
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Bowman v. City of York
...but, rather, that the additional evidence is to be used in deciding whether the board abused its discretion. See, Shaw v. City of Manchester, 120 N.H. 529, 419 A.2d 394 (1980); Rickard v. Fundenberger, 1 Kan.App.2d 222, 563 P.2d 1069 (1977); Blum v. McGraw, 92 Misc.2d 781, 401 N.Y.S.2d 127 ......
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Slater v. Planning Bd. of Town of Rumney, 80-203
...is unjust or unreasonable.' " 118 N.H. at 670, 392 A.2d at 1202. Regarding Cook being retroactive, see Shaw v. City of Manchester, 120 N.H. 529, 531-32, 419 A.2d 394, 395 (1980) and Carey v. Town of Westmoreland, 120 N.H. 374, 375, 415 A.2d 333, 334 (1980). The defendant concludes that the ......
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Peter Christian's Inc. v. Town of Hanover
...evidence will be taken. RSA 677:10 (additional evidence may be considered by the trial court); see Shaw v. City of Manchester, 120 N.H. 529, 532, 419 A.2d 394, 395 (1980) (trial court may hear any additional evidence that will assist in evaluating the reasonableness of a zoning board decisi......
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Johnston v. Town of Exeter, s. 81-019
...at trial in this case from which the court could reasonably and fully decide the issues before it. See Shaw v. City of Manchester, 120 N.H. 529 at 532, 419 A.2d 394 at 396; cf. Price v. Planning Board, 120 N.H. 481, 486, 417 A.2d 997, 1001 The trial court determined that the plaintiffs had ......