Towle v. Nashua

• Court: New Hampshire Supreme Court
• Writing for the Court: DUNCAN
• Citation: Towle v. Nashua, 106 N.H. 394, 212 A.2d 204 (N.H. 1965)
• Decision Date: 21 July 1965
• Parties: Carroll R. TOWLE et al. v. NASHUA, Samuel A. Tamposi, Intervenor.

Page 204

212 A.2d 204

106 N.H. 394

Carroll R. TOWLE et al. v. NASHUA, Samuel A. Tamposi, Intervenor.

Supreme Court of New Hampshire.

Argued June 2, 1965.

Decided July 21, 1965.

Hamblett, Kerrigan & Hamblett, Nashua (Joseph M. Kerrigan, Nashua), for plaintiffs.

Stein, Cleaveland & Rudman, Nashua, and Devine, Millimet, McDonough, Stahl & Branch, Manchester (Joseph A. Millimet, Manchester), for intervenor.

Leo R. Lesieur, City Solicitor, for defendant.

DUNCAN, Justice.

This is an appeal, by petition to the Superior Court, from a 'decision of the legislative body' of the city of Nashua 'in regard to its plan of zoning' (RSA 31:74), which consisted of an ordinance adopted by the board of aldermen on April 14, 1964, rezoning from an 'A' residence district to a 'G' general business district, a 27-acre tract of land wholly owned by the intervenor Tamposi.

The tract in question adjoins a general business district which is 250 feet in depth, fronting upon the easterly side of the Daniel Webster Highway south of Nashua. The rezoned tract has access to the Daniel Webster Highway at its southwesterly corner. The northerly boundary of the tract parallels Hobart Street at a distance of slightly more than 100 feet south of it. On its easterly side, the bounds of the tract follow an irregular course along privately owned residential properties adjoining South Main Street, a street to which access could be provided from the rezoned tract at its southeast corner. The southerly boundary of the tract adjoins land of the State, upon a portion of which the National Guard Armory is situated.

The plaintiffs Cote reside at 10 Hobart Street, and the southerly boundary of their premises is or may be separated from the rezoned tract by a fourteen-foot right of way. The plaintiffs Towle reside at 630 South Main Street. The plaintiffs Ouellette reside at 1 Claimoor Drive, but own land on Hobart Street.

By their appeal, the plaintiffs seek to invalidate the amending ordinance upon two major grounds: first, that no public hearing was held by the board of aldermen as required by RSA 31:63; and second, that the ordinance was not adopted by vote of three-fourths of the members of the board, as required by RSA 31:64 when protest against the change has been filed as therein provided. Additionally, the plaintiffs complain that the rezoning of a single tract was illegal, and that the ordinance was not passed as a part of 'comprehensive plan.' RSA 31:62.

The city and the intervenor contend that the amendment was validly adopted, and also maintain that the protesting owners do not comprise the owners of twenty per cent of the area specified by RSA 31:64 supra. They further maintain that the plaintiffs have no standing to appeal under RSA 31:74, 77.

After hearing, the Superior Court (Leahy, C. J.) transferred to this court without ruling the questions of law presented by the contentions of the parties with respect to statutory interpretation, and 'all issues raised by the pleadings, evidence and requests of the parties.'

Under the statute, the plaintiffs, as 'citizens' of Nashua, were entitled to be heard upon the proposed amendment to the zoning ordinance. RSA 31:63. They were also 'directly affected' by the action of the board and thus entitled to move for rehearing and to appeal, at least to the extent that their appeal questioned whether the amendment was validly adopted. Clapp v. Jaffrey, 97 N.H. 456, 461, 91 A.2d 464; N. H. &c. Beverage Ass'n v. Commission, 100 N.H. 5, 116 A.2d 885. See Annot. 37 A.L.R.2d 1143.

The view advanced by the intervenor, that only persons entitled to protest under RSA 31:64 are 'directly affected' by the amendment, would require an undrly narrow interpretation of RSA 31:74 as applied to this case. Persons entitled to protest by reason of ownership of property in, or adjoining, or across from, an area sought to be rezoned may be thought to have a direct pecuniary interest in the change. See Green v. Foster, 104 N.H. 287, 184 A.2d 448. Non constat however that owners of more remote property in the district or neighborhood may not also be directly affected should an ostensible change in zoning prove to be invalid. It may be questioned whether the change in statutory language adopted in 1949 from 'persons * * * aggrieved' to 'persons directly affected' (RSA 31:74, supra) 'severely restricted' the class of persons entitled to appeal, as the intervenor contends. See Bryant v. Allen, 6 N.H. 116, 118; Swackhamer v. Kline's Adm'r., 25 N.J.Eq. 503, 505.

We consider that in the context of an appeal from a decision of the legislative body, the plaintiffs were entitled to question the validity of the legislative action taken, whether they were qualified to protest under RSA 31:64 or not.

We turn therefore to the questions presented by the appeal. The proposed rezoning was referred to the Nashua 'City-Wide Planning Board' as provided by s. 41 of the city zoning ordinance. As required by the ordinance, the planning board held a public hearing, at which a substantial number of citizens and interested parties registered their views. The proposed change received the approval of the planning board by a vote of six to three.

Before the meeting of the board of aldermen held on April 14, 1964, protests were filed approximately twenty minutes in advance of the meeting by owners of property who the plaintiffs contend were qualified to protest under RSA 31:64. The protests were presented to the meeting by the city clerk, and by a vote of eight to seven were rejected. The amending ordinance was then enacted by a vote of nine to six.

A resolution of the board adopted in 1958 provided that 'every item of business except Petitions to be transacted at the regular meetings of the Board' should be submitted to the city clerk on the Thursday preceding the regular Tuesday meeting.

A fundamental objection urged by the plaintiffs is that the board of aldermen held no public hearing as required by the statute. RSA 31:63 (supp), which was first enacted in 1925 (Laws 1925, c. 92), and last amended in 1963 (Laws 1963, c. 5), provides in pertinent part as follows: 'The legislative body of a city shall provide for the manner in which such regulations and restrictions and the boundaries of such districts shall be determined, established and enforced, and from time to time amended. No such regulation, restriction or boundary shall become effective or be altered until after a public hearing in relation thereto, at which parties in interest and citizens shall have an opportunity to be heard.' RSA 31:63 (supp).

The Nashua ordinance vests in the board of aldermen the authority to amend the zoning requirements, after reference of the proposal to the planning board. S. 41, A. The planning board is required by the same subsection to hold a public hearing, upon specified notice. Section 41, B of the ordinance requires a three-fourths vote of the board of aldermen if the amendment is 'disapproved' by the planning board, or in case of 'a protest' as provided by RSA 31:64, supra. Section 41, C of the ordinance requires the board of aldermen to act within ninety days 'after the filing of petition' for amendment of the zoning ordinance.

The intervenor contends that the public hearing held by the planning board in this case satisfied the requirements of RSA 31:63 (supp) supra, and argues that the ordinance providing for a public hearing before the planning board was a provision by the 'legislative body of such municipality' for the 'manner in which' the zoning regulations should be amended. RSA 31:63 (supp) supra. These contentions we cannot adopt.

The planning board, under RSA 36:11, first enacted in 1935, has 'all powers heretofore granted by law to the zoning commission of a municipality.' The zoning enabling act, as first enacted in 1925 before the advent of planning boards, contained the provision which now appears unchanged in RSA 31:65. This is as follows: 'Zoning Commission. Such legislative body shall appoint a zoning commission, to recommend the boundaries of the various original districts and appropriate regulations to be enforced...