Town of Jaffrey v. Heffernan

Decision Date30 July 1962
Citation183 A.2d 246,104 N.H. 249
PartiesTOWN OF JAFFREY v. Michael HEFFERNAN et al.
CourtNew Hampshire Supreme Court

William D. Tribble, Jaffrey, for Town of Jaffrey.

Maurice M. Blodgett, Peterborough, for Michael A., John Timothy and David Wright Heffernan.

Kenneth A. Brighton, Peterborough, for amici curiae.

BLANDIN, Justice.

The main issue raised by the pleadings is whether the ordinance in question is valid. The parties have agreed upon the following material facts:

'3. That the Town of Jaffrey at its annual Town Meeting held on March 8th, 1960, pursuant to a warrant duly published, enacted the following ordinance:

"Every dwelling house, residence or accessory building hereafter erected in the town shall have a minimum set back of thirty feet from any public highway.'

'4. By a deed dated May 19, 1961 and recorded in the Cheshire County Registry of Deeds in Volume 682, page 370, the respondents acquired title as tenants in common in a certain parcel of land situated on Gilsum Road and adjacent to Thorndike Pond in the Town of Jaffrey. That said Gilsum Road is a public highway within the meaning of the ordinance.

'5. That on or after November 1st, 1961 the respondents caused to be erected, or at least permitted to be erected, on said parcel of land a dwelling house. That the said dwelling house is set back fourteen feet or less from said Gilsum Road, or in any event, is set back less than thirty feet.

'6. That on or about the fourteenth day of November 1961 the respondents were notified by registered mail by counsel for the town that said dwelling house was within thirty feet of said Gilsum Road in violation of the ordinance, and that despite said notice, the respondents have failed and refused to remove said dwelling house, which is still situated at a point less than thirty feet from said highway.

'7. That upon receipt of said notice the respondents suspended work upon the construction of the said dwelling house and that no further work thereon has since been prosecuted.

'8. That the petitioner, Town of Jaffrey, has not appointed a Zoning Commission, except as follows:

'Prior to the adoption of the ordinance quoted in Paragraph 3 hereof, the Town had created a Planning Board, which Board was duly appointed and has since been in continuous existence.

'9. That prior to March 13, 1962, the petitioner, Town of Jaffrey, had not provided for the appointment of a Board of Adjustment and had not adopted regulations and restrictions under the terms of RSA 31:66, except as follows:

'At a Special Town Meeting, held May 18, 1960, at Union Hall, the following Airport Zoning Regulations for the Town of Jaffrey were approved for regulating and restricting the height of structures and objects of natural growth, and otherwise regulating the use of property in the vicinity of Silver Ranch Airport by creating airport approach zones and other restricted areas and establishing the boundaries thereof.

"* * * Section 11. Board of Appeals. There shall be a Board of Appeals consisting of five members, each of whom shall be appointed by the Board of Selectmen for a term of three years and one of whom shall be designated as chairman. The members of said Board of Appeals shall be removable for cause by the Board of Selectmen upon written charges and after public hearing. The Board of Appeals shall have the following powers:

"a. To hear and decide appeals from any order, requirement, decision or determination made by the administrative agency in the enforcement of these regulations.

"b. To hear and decide all applications for variances under section 7 of these regulations.

"c. To exercise the powers and perform the duties of the Board of Adjustment as set forth in R.S.A. 31:68-86 as presently in force or as amended in the future. * * *'

'The Board of Appeals required by the airport regulations has not been appointed.

'10. That the petitioner, Town of Jaffrey, prior to March 13, 1962, had made no provisions for the manner in which said ordinance should be enforced and amended under the provisions of RSA 31:63.'

While it is true that the votes of Town Meetings are liberally construed to accomplish their purpose (Amey v. Pittsburg School District, 95 N.H. 386, 388, 64 A.2d 1), it is nevertheless necessary that they be expressed within the limits of the powers granted by the State, since towns possess only such powers. State v. Jenkins, 102 N.H. 545, 162 A.2d 613; State v. Paille, 90 N.H. 347, 9 A.2d 663.

The power of a town to adopt zoning regulations is limited to that delegated to it by the Legislature in RSA 31, ss. 60-89, and RSA ch. 424, which relates to airport zoning ordinances only. To be valid, a zoning ordinance must comply with the statute in its enactment and its regulations, including the provisions for its administration. It appears that the method of enactment of the ordinance before us, by vote of a town meeting complied with RSA 31:63 and is therefore not open to objection.

Whether other requirements of ch. 31 were fulfilled raises a more difficult question. RSA 31:65 provides that the legislative body of a town 'shall appoint a zoning commission, to recommend the boundaries of the various original districts and appropriate regulations to be enforced therein. Such commission shall make a preliminary report and hold public hearings thereon before submitting its final report, and such legislative body shall not hold its public hearings or take action until it has received the final report of such commission.'

Section 66, Id., adds a further requirement that 'Such local legislative body shall provide for the appointment of a board of adjustment, and in regulations and restrictions adopted pursuant to the authority hereof shall provide that the said board may, in appropriate cases and subject to appropriate conditions and safeguards, make special exceptions to the terms of the ordinance in harmony with its general purpose and intent and in accordance with general or specific rules therein contained.'

No Zoning Commission under section 65 was ever appointed, although the town had created a Planning Board under RSA 36:2, which was in operation prior to the enactment of the disputed ordinance. It does not appear, however, that the Board had evolved any 'master plan' as contemplated by RSA 36:13. It should be noted that a master plan is of importance, and increasingly so; it should not be overlooked. 68 H.L.R. 1154.

Furthermore, the town had never provided for a Board of Adjustment as required by RSA 31:66, although it had at a...

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12 cases
  • Piper v. Meredith
    • United States
    • New Hampshire Supreme Court
    • June 5, 1970
    ...to come within this police power of towns. 6 McQuillin, Municipal Corporations, ss. 24.541, 542, 546, 547. In Town of Jaffrey v. Heffernan, 104 N.H. 249, 183 A.2d 246, this court held that an ordinance requiring buildings to have a minimum setback of 30 feet from any public highway, could b......
  • Beck v. Town of Raymond
    • United States
    • New Hampshire Supreme Court
    • November 17, 1978
    ...State v. Zetterberg, supra (upheld an ordinance regulating surfing on ocean beaches as a safety measure); Town of Jaffrey v. Heffernan, 104 N.H. 249, 183 A.2d 246 (1962) (upheld a setback ordinance which did not comply with statutory requirements for the adoption of a zoning Nevertheless, t......
  • Bosse v. City of Portsmouth
    • United States
    • New Hampshire Supreme Court
    • January 27, 1967
    ...390, 391 (1966). However the action of the city council must conform to the requirements of RSA 31:60-31:62. Town of Jaffrey v. Herffernan, 104 N.H. 249, 252, 183 A.2d 246. In other words changes in district boundaries can be justified only when they are '(f)or the purpose of promoting heal......
  • Fletcher v. Feeney
    • United States
    • Maine Supreme Court
    • April 26, 1979
    ...scheme of a zoning ordinance, and that lacking it, the ordinance before us is invalid as a zoning ordinance. Town of Jaffrey v. Heffernan, 104 N.H. 249, 183 A.2d 246, 249 (1962). The New York courts, however, have explicitly taken the position (as did Michaels, supra ) that a municipality's......
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