Weeks Restaurant Corp. v. City of Dover

• Decision Date: 11 July 1979
• Docket Number: No. 79-013,79-013
• Citation: 404 A.2d 294,119 N.H. 541
• Parties: WEEKS RESTAURANT CORPORATION v. CITY OF DOVER, Sambo's Restaurants, Inc. and Sambo's of New Hampshire, Inc.
• Court: New Hampshire Supreme Court

Page 294

404 A.2d 294

119 N.H. 541

WEEKS RESTAURANT CORPORATION v. CITY OF DOVER, Sambo's Restaurants, Inc. and Sambo's of New Hampshire, Inc.

No. 79-013.

Supreme Court of New Hampshire.

July 11, 1979.

Burns, Bryant, Hinchey, Cox & Shea, Dover (Donald R. Bryant, Dover, orally), for plaintiff.

Scott E. Woodman, Portsmouth, by brief, for city of Dover.

Gallagher, Callahan & Gartrell, P. A., Concord (Donald E. Gartrell, Concord, orally), for Sambo's Restaurant, Inc. and Sambo's of New Hampshire, Inc.

BROCK, Justice.

The plaintiff, Weeks Restaurant Corporation (Weeks), excepted to a superior court decree dismissing its appeal from a decision of the City of Dover Planning Board granting site plan approval for construction of a restaurant by Sambo's Restaurants, Inc. and Sambo's of New Hampshire, Inc. (Sambo's). The trial court's dismissal was based on a finding that the plaintiff was not an abutter of the Sambo's site and was therefore not a person aggrieved who would be entitled to take an appeal. Carter v. City of Nashua, 116 N.H. 466, 362 A.2d 191 (1976); Hancock v. City of Concord, 114 N.H. 404, 322 A.2d 605 (1974). We reverse, and overrule those two cases.

Sambo's has sought approval for its plans to build a restaurant at the eastern corner of Central Avenue and Somersworth Road in Dover, on the perimeter of the Somersworth traffic circle. Weeks owns and operates a restaurant across Somersworth Road from the site, inside the traffic circle. At the several hearings held by the Dover Planning Board at which the Sambo's site plan was considered, Weeks appeared and actively opposed the proposed restaurant. Weeks and Sambo's each presented evidence, including expert testimony concerning the traffic problems that might result if the restaurant were permitted.

On February 21, 1978, the planning board approved the Sambo's site plan, subject to detailed conditions relating to parking and traffic patterns. Weeks filed a timely appeal in Strafford County Superior Court, alleging that the planning board's action was illegal because the planning board had failed to follow the procedures set forth in the statute, and had approved a site plan that violates applicable zoning ordinances and subdivision regulations. After hearing evidence concerning the boundaries, location, and use of the two properties, the Court (Mullavey, J.) granted Sambo's motion to dismiss the Weeks appeal.

RSA 36:34 I (Supp.1977) provides: "Any persons aggrieved by any decision of the planning board . . . may present to the superior court a petition, duly verified, setting forth that such decision is illegal in whole or in part, specifying the grounds of the illegality." In Hancock v. City of Concord, 114 N.H. 404, 407, 322 A.2d 605, 607 (1974), this court, resolving ambiguities and uncertainties inherent in RSA 36:23 and RSA 36:34, held that because "only abutters and applicants need be notified of a hearing, it is clear that it was the intent of the legislature not to include nonabutters as 'aggrieved persons' under RSA 36:34." In Carter v. City of Nashua, 116 N.H. 466, 362 A.2d 191 (1976), we reaffirmed our position that under RSA 36:34 nonabutters did not have standing to appeal site plan approvals, even where, as here, they participated vigorously in the planning board hearings. Weeks argues that it should be considered an "abutter," despite the public highway separating its property from the Sambo's site, and that we should overrule or modify the rule established in the two prior cases. We will address the latter question first.

The Hancock and Carter cases themselves stand in conflict with numerous decisions of this court giving broad interpretation to identical or similar language in other appeal statutes. In appeals from probate court, RSA 567-A:1 (Supp.1977), the class of "persons aggrieved" includes "(e)very person whose rights are involved or in any way affected injuriously by the decree." Shirley v. Healds, 34 N.H. 407, 411 (1857). In appeals from decisions of administrative agencies, any person or entity who "has sustained the requisite 'injury in fact' " has standing to appeal. RSA 541:8; State ex rel. Thomson v. State Bd. of Parole, 115 N.H. 414, 419, 342 A.2d 634, 637 (1975); See e. g., Melton v. Personnel Comm'n, 119 N.H. ---, 401 A.2d 1060 (May 9, 1979); New Hampshire Bankers Ass'n v. Nelson, 113 N.H. 127, 302 A.2d 810 (1973).

The restricted class of persons heretofore permitted to appeal from planning board decisions also conflicts with the much broader class of persons who have standing to appeal from similar decisions of zoning boards of adjustment. An owner of property adjoining, across from, or in close proximity to, a proposed development is deemed to have a direct pecuniary interest in a zoning change. Towle v. City of Nashua, 106 N.H. 394, 396, 212 A.2d 204, 206 (1965). Accord, Wager v. City of Green Cove Springs, 261 So.2d 827 (Fla.1972); Bryniarski v. Montgomery County Board of Appeals, 247 Md. 137, 230 A.2d 289 (1967); See Hancock v. City of Concord, 114 N.H. 404, 408, 322 A.2d 605, 607 (1974) (Duncan, J. dissenting). If the plaintiff here were seeking review of a zoning amendment or a special exception granted for the Sambo's site, it would undoubtedly have standing to appeal. Towle v. City of Nashua supra. Cf., L & L Portsmouth Theatres, Inc. v. City of Portsmouth, 117 N.H. 347, 373 A.2d 352 (1977) (discontinued street). There is no significant distinction between "persons directly affected," RSA 31:74 (Supp.1970), 31:79, and "persons aggrieved," RSA 31:77, 36:34 I (Supp.1977). Towle v. City of Nashua, 106 N.H. at 396, 212 A.2d at 206. See 3 A. Rathkopf, Law of Planning and Zoning ch. 36, s. 1 (4th ed. 1979). The interests of the parties and the type of issues presented in a site plan review do not differ substantially from those present in the granting of a special exception or a variance, and no rationale appears for a different definition of persons entitled to appeal.

The restrictive standing rule announced in the Hancock and Carter cases can lead to harsh results. In the Hancock case itself, the plaintiffs lived and owned property "in close proximity" to the proposed subdivision. Under the defendant's interpretation, no one would have standing to challenge a planning board decision concerning a parcel, such as that owned by the plaintiff, that is bounded on all sides by public streets. That outcome would violate the constitutional mandate that even where matters have been relegated to administrative agencies, "questions of law belong to the judiciary for final determination . . .. The right to apply to the courts for relief from illegality may not be unduly abridged." Cloutier v. State Milk Control Bd., 92 N.H. 199, 201-02, 28 A.2d 554, 556 (1942).

In short, the only substantial reason for denying standing to the plaintiff here would be strict adherence to the holding in the Carter case. While recognizing the value of stability in legal rules, especially those affecting property rights, we have also indicted that "(t)he doctrine of Stare decisis is not one to be either rigidly applied or blindly followed." Amoskeag Trust Co. v. Trustees of Dartmouth College, 89 N.H. 471, 474, 200 A. 786, 788 (1938); See R. von Moschzisker, Stare Decisis in Courts of Last Resort, 37 Harv.L.Rev. 409, 412-14 (1924). "(T)he stability of the law does not require the continuance of recognized error." Smith v. Twin State Gas & Electric Co., 83 N.H. 439, 447, 144 A. 57, 61 (1928). Because we find no other compelling support for the prior rule, "justice demands and reason dictates that a change be made." Dean v. Smith, 106 N.H. 314, 318, 211 A.2d 410, 413 (1965). We hold that Hancock v. City of Concord, 114 N.H. 404, 322 A.2d 605 (1974), and Carter v. City of Nashua, 116 N.H. 466, 362 A.2d 191 (1976), are hereby overruled to the extent that they would prevent nonabutters from appealing from planning board decisions.

This broader reading of the statute will not extend standing to "all persons in the community who might . . . feel that they are hurt by the board's decision on a site plan approval pertaining to land quite remote from their own." Carter v. City of Nashua, 116 N.H. at 468, 362 A.2d at 193. Whether a party has a sufficient interest in the outcome of a planning board or zoning board proceeding to have standing is a factual determination in each case. The trial court may consider factors such as the proximity of the plaintiff's property to the site for which approval is sought, the type of change proposed, the immediacy of the injury claimed, and the plaintiff's participation in the administrative hearings. Accord, Renard v. Dade County, 261 So.2d 832, 837 (Fla.1972); Allen v. Coffel, 488 S.W.2d 671 (Mo.App.1973).

The plaintiff here has a definite direct interest in the decision appealed from. Its property is separated from the Sambo's site only by a public highway. Traffic congestion and hazards created by the proposed restaurant could adversely affect Weeks' business. Weeks participated actively in the planning board hearings relating to the site plan and has...