Town of Alton v. Fisher

• Decision Date: 31 May 1974
• Docket Number: No. 6812,6812
• Citation: 320 A.2d 653,114 N.H. 359
• Parties: TOWN OF ALTON v. Albert V. FISHER, III, et al. LOCKE DEVELOPMENT CORPORATION et al. v. Albert V. FISHER, III, et al.
• Court: New Hampshire Supreme Court

Page 653

320 A.2d 653

114 N.H. 359

TOWN OF ALTON v. Albert V. FISHER, III, et al.

LOCKE DEVELOPMENT CORPORATION et al. v. Albert V. FISHER, III, et al.

No. 6812.

Supreme Court of New Hampshire.

May 31, 1974.

Orr & Reno, Richard B. Couser and Neil F. Castaldo, Concord (Couser orally), for Locke Development Corp.

Fisher, Parsons, Moran & Temple and Robert E. Fisher, Dover (Fisher orally), for Albert V. Fisher III, town moderator.

McLane, Graf, Greene & Brown, Manchester, for the town of Alton, filed no brief.

Nighswander, Lord, Martin & KillKelley, Laconia, for Eleanor D. Horne, town clerk, filed no brief.

GRIMES, Justice.

The central issue on appeal is whether proposed amendments to the Alton zoning ordinance to increase the minimum lot size and lot frontage required a two-thirds majority vote pursuant to RSA 31:64. Two separate actions questioned the validity of the amendments which passed by a simple majority and which were proclaimed validly enacted by the moderator of the town meeting. On May 7, 1973, the town, naming the moderator and Locke Development Corporation (Locke) respondents, brought a petition for a declaratory judgment to determine the validity of the amendments. On May 15, 1973, Locke petitioned the court for a writ of mandamus ordering the moderator and the town clerk to declare that the proposed amendments had not been enacted since they did not receive a two-thirds majority vote. Because the two actions raised identical issues and arose from the same facts, they were consolidated and tried together. A hearing was held before a Judicial Referee, Amos N. Blandin, Jr., who made certain findings and rulings and recommended six questions be transferred without ruling. The Court, Killer, C.J., adopted the referee's report and transferred all questions.

The two amendments which were voted on at the annual town meeting provided for increasing the minimum lot size and lot frontage in the rural zone to two acres and 200 feet, respectively, and in the residential zone to one acre and 150 feet. Unless controlled by RSA 31:64, a simple majority of the votes cast at the meeting would enact the amendments. RSA 31:64 provides in part that if petitions protesting proposed changes are signed by the owners of at least twenty percent of the area included in the change a two-thirds vote is required to amend the zoning ordinance. Petitions were filed with the town selectmen on February 27, 1973.

Voting at the town meeting held on March 6, 1973, began at 9:00 a.m. At 6:35 a.m., the moderator received two letters from the selectment certifying that petitions filed with them brought the proposed changes within the two-thirds requirement of RSA 31:64. At this point, about 30 persons had voted. After all the voting, the proposed changes passed by a simple majority but, by a two-thirds requirement, both failed. At the close of the meeting, the moderator deferred ruling on the requirement for a two-thirds vote. Two weeks later on March 21, the moderator announced in a written statement that the petitions did not comply with the statute and that the zoning ordinance was thereby effectively amended with a simple majority vote.

Two preliminary questions transferred are whether or not a declaratory judgment is a proper remedy and whether the Locke petition for a writ of mandamus requires, as a matter of law, dismissal of the town's petition for declaratory judgment. Declaratory judgments have been used previously to challenge the validity of zoning amendments, protest petitions and moderators' declarations. Drown v. Hudson, 112 N.H. 386, 296 A.2d 897 (1972). The statute permitting declaratory actions has a broad remedial purpose, Faulkner v. Keene, 85 N.H. 147, 155 A. 195 (1931), which in this case is served by resolving the town's doubts about the validity of the zoning amendments. Hermer v. Dover, 105 N.H. 108, 192 A.2d 624 (1963); Jones v. Merrimack Valley School Dist., 107 N.H. 144, 218 A.2d 55 (1966). A writ of mandamus, however, is an extraordinary remedy and, where other adequate relief is available, it is not appropriate. Bois v. Manchester, 104 N.H. 5, 177 A.2d 612 (1962).

Three of the issues transferred challenge the validity of the protest petitions under RSA 31:64 as construed by Towle v. Nashua, 106 N.H. 394, 212 A.2d 204 (1965). The Towle case held that protest petitions should be filed with the legislative body considering the proposal at any time before 'action' is taken on the proposal by that body. Towle v. Nashua supra at 400, 212 A.2d at 208. The respondent-moderator's argument is that, under the Towle case, the petitions must be filed with the legislative body acting on the proposals and, in this case, the legislative body is either the town as a whole or the moderator who runs the meeting of the town. Secondly, respondent argues, that because the legislative body had commenced 'action' on the proposals by opening the polls before the moderator received notice of the petitions, the petitions were not timely filed.

Accordingly, the questions transferred are whether RSA 31:64 requires that protest petitions be presented to the town clerk or moderator; whether the petitions here were seasonably filed and presented to the town selectmen; whether the voting of thirty people prior to selectmen notifying the moderator of the petitions constituted 'action' by a legislative body within the meaning of the Towle case such that the petitions were ineffective.

RSA 31:64 makes no provision for prior certification that petitions comply with the statute, for time or place of filing, or even for filing at all. The statute simply says that where there exists a valid protest, amendments shall not become...