Smith v. Nutter
Smith v. Nutter
Opinion of the Court
The issue before this court is whether the superior court erred in remanding to the Board of Adjustment of the Town of Salem the question whether the construction of a trailer park by the defendants Nutter is in violation of the Salem zoning ordinance. We hold that the remand was proper.
In 1953, under a zoning ordinance then in effect, defendants Nutter applied for and obtained a permit to construct
It appears that the Nutters have expended sums of money in the development of their land since 1968. While this may be a factor to be considered on the merits', it is not relevant to the issue before us.
The plaintiffs claim to have had no notice or knowledge of the Nutters’ activities in the beginning but that they began objecting in July and August of 1969 to the selectmen, who on September 8, 1969, at a public hearing voted to take no action against the Nutters. On October 9, 1969, being uncertain how to proceed, the plaintiffs filed a bill in equity against the Nutters and on January 3, 1970, filed a formal request with the selectmen to enforce the ordinance against the Nutters. When the selectmen failed to act, plaintiffs on
Both the bill in equity and the appeal were referred to a Master (Leonard C. Hardwick, Esq.) who after two days of hearing found that since there had been no notice or hearing before the board of adjustment, the matter had never been properly considered by it and recommended a remand of the matter to the board for hearing after reasonable notice to the public and the parties. This recommendation was approved by Perkins, J. who transferred defendants’ exceptions.
Defendants and the intervenor contend that both the bill in equity and the appeal should be dismissed because plaintiffs have not exhausted their administrative remedies, that the matters cannot be “remanded” to the board of adjustment because the matters were never before the board of adjustment and therefore cannot be “remanded” there, and that it was error for the superior court not to render a final judgment under RSA 31:83.
Although it is true that parties must exhaust their administrative remedies as to matters coming within the jurisdiction of the board of adjustment (Carrick v. Langtry, 99 N.H. 251, 108 A.2d 546 (1954); Bois v. Manchester, 104 N.H. 5, 177
Defendants contend that the trial court did not enter a final decree and therefore could not remand the matter to the board. We need not decide whether such a final decree of dismissal or vacation of the order is required before a remand because we hold that such a decree was made in this case. RSA 31:83. The effect of the trial court’s ruling was that the action of the board in denying the plaintiff’s petition without notice and hearing was unlawful. In this ruling we concur. It follows, therefore, that the remand to the board for hearing after notice was proper. To claim, as defendants do, that since the board took no proper action because of lack of notice and hearing, the plaintiffs cannot properly appeal, is to seek to charge the plaintiffs with the improper conduct of the board.
It is true, as defendants contend, that the failure of the board to hold a hearing and give notice thereof was not included in the specifications in the motion for a hearing. RSA 31:75; DiPietro v. Nashua, 109 N.H. 174, 246 A.2d 695 (1968). Both the Salem ordinance, art. XI G, and RSA 31:75 permit consideration of other grounds for good cause shown. We hold that even if the limitation of RSA 31:75 applies, there was good cause for the court to consider the issue and remand the appeal to the board of adjustment.
Exceptions overruled.
Reference
- Full Case Name
- William N. Smith & a. v. Harold R. Nutter & a. and Town of Salem & a.
- Status
- Published