Tremblay v. Town of Hudson

• Citation: 355 A.2d 431,116 N.H. 178
• Decision Date: 31 March 1976
• Docket Number: No. 7278,7278
• Parties: Rene W. TREMBLAY v. TOWN OF HUDSON.
• Court: Supreme Court of New Hampshire

Page 431

355 A.2d 431

116 N.H. 178

Rene W. TREMBLAY v. TOWN OF HUDSON.

No. 7278.

Supreme Court of New Hampshire.

March 31, 1976.

Prolman & Holland, Nashua (Francis G. Holland, Nashua, orally), for plaintiff.

Sullivan, Gregg & Horton, Nashua, and Francis L. Cramer, Merrimack, for defendant.

LAMPRON, Justice.

Appeal to the superior court from a denial by the Hudson Zoning Board of Adjustment of plaintiff's amended application for variances and other relief. By its terms the application sought the following: (1) a variance from the 35 foot height limitation of article I, section 5(a) of the ordinance to permit the erection of a drive-in theater screen 47 feet high; (2) a determination that article III, section 1(d)16 entitled 'Amusement and recreation services' permitted the erection and operation of an outdoor drive-in theater; and (3) a variance from that section of the ordinance to permit the erection and operation of a drive -in theater on a 5 1/2 acre lot on Route 111 on which plaintiff holds an option to purchase. The application was denied on October 4, 1973. Plaintiff duly filed a motion for rehearing under RSA 31:74 (Supp.1975) and filed a supplement thereto on January 23, 1974. The board of adjustment denied the rehearing on January 24 and plaintiff appealed to the superior court under RSA 31:77.

The Trial Court (Bois, J.) heard some testimony and the parties made certain stipulations on the record and agreed that the following three questions be transferred to this court, which the trial court reserved and transferred without ruling. They are: '1. On the record was the issue of the 'permitted' nature of the plaintiff's proposed construction and land use properly before the Zoning Board of Adjustment. '2. On the record was the issue of the 'permitted' nature of the plaintiff's proposed construction and land use properly preserved and ripe for appeal to the Superior Court. '3. If the first two questions are answered in the affirmative, is the plaintiff's proposed construction and land use permitted under the ordinance.'

It appears from the record, the briefs, and the arguments that the main purpose of this transfer is to obtain a determination by this court as to whether or not article III, section 1(d)16 of the Hudson zoning ordinance permits the erection and operation of a drive-in theater. We do not recommend the procedures followed in this case as models for raising an issue of law as to the meaning of certain terms in an ordinance. However, we are of the opinion that plaintiff, after having been refused a permit by the building inspector to build a drive-in theater because it was not permitted under the ordinance, did raise the issue of the legal meaning of article III, section 1(d) in its application for appeal to the board of adjustment.

We have held that where the issue does not involve the proper exercise of administrative discretion, but rather whether the ordinance is valid, a court will usually resolve the matter regardless of the administrative posture. Londonderry v. Faucher, 112 N.H. 454, 456, 299 A.2d 581, 582 (1972). This is also true where, as in this case, the issue is a question of law as to the meaning of certain terms in a zoning ordinance. Metzger v. Brentwood, 115 N.H. 287, 291, 343 A.2d 24, 27 (1975); K. Davis, Administrative Law Text § 20.09 (3d ed. 1972); L. Jaffe, Judicial Control of Administrative Action 433-36 (1965). Consequently it is unnecessary to decide whether the plaintiff has properly exhausted his administrative remedies. However, administrative remedies must be exhausted when the proper exercise of administrative discretion is involved. 2 Am.Jur.2d Administrative Law § 595 (1962).

Under the circumstances of this case we hold that the 'permitted' nature of plaintiff's proposed construction was not only properly before the zoning board of adjustment but was ripe for decision by the superior court and by this court on transfer therefrom. See L. Jaffe, supra at 395-97. This is particularly true where the parties have argued their positions on the legal issue involved. Our answer to transferred questions '1' and '2' is 'Yes.'

The Hudson zoning ordinance does not mention drive-in theaters. Where no provision is made for their use by express reference to them, the right to establish a drive-in may...