V. S. H. Realty, Inc. v. City of Rochester, 78-083

CourtSupreme Court of New Hampshire
Citation394 A.2d 317,118 N.H. 778
Docket NumberNo. 78-083,78-083
Decision Date15 November 1978

Wiggin & Nourie, Manchester (James W. Donchess orally), for plaintiff.

William B. Cullimore, Farmington, by brief and orally, for defendant.

BROCK, Justice.

This case arises from a decree of the Strafford County Superior Court (King, J.) dated December 12, 1977, enjoining the city of Rochester from "improperly interfering with the construction and operation of a convenience store and gas station on land owned by the plaintiff V.S.H. Realty, Inc.

The city alleges first that the decree is defective in that it was issued without adequate notice to the city or its attorney, thereby denying the city an opportunity to present evidence on the merits of the plaintiff's claim; and second that the decree was improper in that the plaintiff failed to exhaust administrative remedies prior to invoking the jurisdiction of the superior court. We agree with both claims.

In February 1977 the plaintiff submitted to the city a proposal to construct a Cumberland Farms convenience store and gas station on a lot that it owned on Milton Road. In June 1977 the city enacted certain amendments to its zoning ordinance which, if valid, would have barred the proposed development. V.S.H. Realty brought a petition for declaratory judgment in Strafford County Superior Court claiming that the city had failed to comply with the statutory requirements for enacting amendments to zoning ordinances. On November 16, 1977, after a hearing at which the city admitted the zoning amendments in question had been enacted in violation of RSA 31:63, the Master (Maryland H. Morse, Jr., Esq.) found that the amendments were improperly enacted and therefore without legal force and effect and that "there appears to be no valid basis on which the issuance of a building permit may be withheld as a consequence thereof." The master made no findings as to whether the proposed development would comply with the remainder of the zoning ordinance, since that question had not been raised.

The master's report was approved by King, J. on November 16, 1977. Later that day the plaintiff's attorney was informally advised by the Rochester building inspector in a telephone conversation that his client's property appeared to be largely in an R-1 zone which would not permit the proposed development. Seeking to contest that assertion, the plaintiff filed a motion to amend its original petition for declaratory judgment. On December 12, 1977, after a brief nonevidentiary hearing, the Superior Court (King, J.) entered a second decree that granted the plaintiff's motion to amend and further granted the substantive relief requested in the amendment in the form of an injunction, which prohibited the city "from improperly interfering with the construction and operation" of the proposed store and gas station. The court in essence ordered the city to grant V.S.H. Realty a building permit, with an express threat of a contempt citation for failure to comply. The city took exception to that second decree.

The city's first contention is that the December 12 decree should be vacated because the city did not receive adequate notice as to the matters to be heard at that hearing. The purpose of a notice requirement is to inform the recipient of the character of a proposed action so that he can prepare adequately for the hearing. 2 M. Merrill, Notice § 796 (1952). Here the city attorney received timely notice that a hearing "on motions" was scheduled for December 12. From this wording he could reasonably have believed that the only matter to be argued that day was the routine question of whether V.S.H. Realty would be allowed to amend its earlier petition, and that if the amendment were granted he would have additional time to file an answer to it. Superior Court Rule 221. Instead he discovered that the court was in fact hearing the merits of the amended petition and was to grant outright the injunctive relief prayed for in the amendment, which went far beyond that sought in the original petition. Foster v. Calderwood, 118 N.H. ---, 389, A.2d 1388 (1978).

The inadequacy of notice handicapped the city in responding to the merits of the amended petition. The issues raised for the first time in the amendment presented factual disputes between the parties as to what zone the V.S.H. Realty property was in and whether it had otherwise complied with the zoning ordinance, matters on which the city was entitled to present witnesses or other evidence. Assuming arguendo that the amendment itself was in order, the court erred in not affording the city an opportunity, after the amendment was made, to review the new claims and file an answer. To the extent that the court's decree disposes of the merits of the amended petition, it is defective for lack of notice and cannot stand. Notices furnished by our courts to counsel and parties should make clear what is to be heard or considered.

There remains the additional issue of whether the trial court erred in allowing V.S.H. Realty to amend its earlier petition so as to include the request for mandamus. This...

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15 cases
  • LaRoche v. Doe, 90-044
    • United States
    • Supreme Court of New Hampshire
    • July 31, 1991
    ...a requirement that the trial court hear substantially Page 1303 new evidence on new issues. See V.S.H. Realty, Inc. v. City of Rochester, 118 N.H. 778, 781-82, 394 A.2d 317, 319-20 Affirmed. All concur. ...
  • Huard v. Town of Pelham, 2009-228.
    • United States
    • Supreme Court of New Hampshire
    • December 31, 2009
    ...zoning ordinance, matters that belong in the first instance to the designated local officials." V.S.H. Realty, Inc. v. City of Rochester, 118 N.H. 778, 782, 394 A.2d 317 (1978). "[T]his sound rule is based on the reasonable policies of encouraging the exercise of administrative expertise, p......
  • Petition of Clark, 81-370
    • United States
    • Supreme Court of New Hampshire
    • October 14, 1982
    ...at 699-700; see Appeal of Portsmouth Trust Co., 120 N.H. 753, 758, 423 A.2d 603, 606 (1980); V.S.H. Realty, Inc. v. City of Rochester, 118 N.H. 778, 780-81, 394 A.2d 317, 319 (1978). Because the division's notice did not state the complete reasons for the termination of the plaintiffs' bene......
  • Reardon v. Lemoyne, 82-183
    • United States
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    • December 23, 1982
    ...counsel appears to have acted in good faith, of a full opportunity to present their case. See V.S.H. Realty, Inc. v. City of Rochester, 118 N.H. 778, 780-81, 394 A.2d 317, 319 (1978); see also Bosse v. Insurance Co., 88 N.H. 98, 102, 184 A. 359, 361 (1936) (defendant entitled to hearing on ......
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