Opinion
No. 3533.
Decided February 11, 1946.
The statute of zoning (R. L., c. 51, ss. 6469) providing an appeal from the city government to the Superior Court confers the same right of appeal as that granted from the board of adjustment. That right of appeal is analogous in its effect to the award of a new trial, by which the previous verdict is entirely set aside, and the case is to be heard anew like an original action and as if no decision had been rendered by the city government. Since an appeal to the Superior Court from the decision of the city government in a zoning case is merely a continuation of the original proceedings the burden of proof in the Superior Court remains upon the party who had the burden of proving a public need for the amendment to the city ordinance from which the appeal was taken. Where an amendment to the zoning ordinance of the city government was granted as a result of a petition seeking solely the acquisition of a special privilege and not directed to the essential issue of public interest, the amendment will be set aside on appeal to the Superior Court.
APPEAL, under the provisions of R. L., c. 51, s. 64, from the decision of the city government of Keene granting the prayer of the following petition signed by J. Earl Davis:
"To the members of the city government of the city of Keene: Respectfully represents your petitioner that he is a resident of the city of Keene and is the owner of certain real estate at 49 Court Street in the city of Keene. That he is desirous of renting or selling this property to Frank J. Foley . . . who intends to use this property for a funeral home. That this property is situated in the general residence district and that under the zoning law, property can be used for an undertaking establishment or a funeral home only if it is in the business district. Wherefore your petitioner prays: That the amended zoning ordinance of the city of Keene be changed so that undertaking establishments and funeral homes shall be taken out of the business district and placed in the general residence district."
The appellant, Glenroy W. Scott, appeared before the city government in opposition to the granting of the petition, and three other property owners registered their objection. The appeal to the Superior Court was seasonably and properly taken.
The zoning ordinance of Keene was enacted in 1926 and revised in 1941. The amendment which is the subject of the present controversy was adopted on January 21, 1943.
The material facts, as found by the Presiding Justice, are as follows:
Glenroy W. Scott owns and occupies a residence at 56 Court Street, which is in a single-residence district, in Keene. In 1943 after the requested change in the ordinance had been made, Frank J. Foley removed his funeral home from 15 Court Street to 49 Court Street, which is in a general residence district and diagonally opposite Mr. Scott's home.
Mr. Scott purchased his home in 1937 and has expended $10,000 or more in improving the property. The presence of Mr. Foley's establishment renders this property less desirable for sale to the extent that it restricts prospective purchasers to a group which would not be concerned with proximity to a funeral home.
The findings conclude as follows:
"The Court finds that the ordinance is reasonable and is substantially related to public safety and the general welfare. Traffic conditions were congested frequently when funerals occurred at the funeral home at 15 Court Street. Such congestion will be relieved by permitting undertaking establishments and funeral homes to be conducted in a general residence district. . . .
"The Court does not consider that its duty is to interfere with the decision of the local governmental body in a case of this kind unless the decision was unreasonable, arbitrary or made without due process. Due respect for principles of the democratic form of government requires that considerable respect be accorded by our courts to the judgments of local authorities in matters so closely associated with the welfare of their own community. Whether this court would have evaluated the interests so that it would have arrived at the same result as the local government is of little consequence. The authorities of the city of Keene acted according to their duties under the law, adequate opportunity to be heard was afforded to the parties, and ample evidence exists to support the change in the ordinance. Justice requires that the ordinance be approved."
The appellant excepted to the denial of various requests including (1) a request for a ruling that the burden of proof rested on the appellees and that this burden must be sustained by the weight of the evidence introduced at the trial, and (2) a request for a ruling that the amendment of January 21, 1943, was invalid as a matter of law. His bill of exceptions was allowed by Lorimer, C. J.
Roy M. Pickard (by brief and orally), for the appellant.
Murchie Murchie (Mr. Alexander Murchie orally), for the estate of Agnes M. Foley.
Edward C. Sullivan, City Solicitor, for the city of Keene, furnished no brief.
The decision of the city government to make the change in the ordinance which Mr. Davis requested was subject to the statutory right of any taxpayer to appeal therefrom within thirty days. R. L., c. 51, s. 64.
While ordinarily a court is not authorized to substitute its judgment for that of either a city government or a board of adjustment (38 Mich. Law Rev. 431, 432, and authorities cited in note 4; Zahn v. Board, 274 U.S. 325, 328), we believe that the Superior Court was so authorized under sections 64 to 69 of the Zoning Act (R. L., c. 51). We have already so held in relation to the decisions of boards of adjustment. Vogel v. Board, 92 N.H. 195.
The form of the Zoning Act, when first introduced in the Senate of 1925 as Senate Bill No. 16, was that of the "Standard Enabling Act" (see Metzenbaum, "Law of Zoning," 303, 309). What is now section 64 related in first draft merely to the decisions of boards of adjustment, but was amended to include "any decision of the legislative body" of a municipality "in regard to its plan of zoning," and what is now section 65, entitled "Appeals to Court," was substituted for the original provision allowing writs of certiorari.
Since no provision limiting the extent of the court's revisory power appears in the act, we believe that it was the legislative intent to treat both appeals, whether from the decisions of boards of adjustment or from the decisions of city governments, on precisely the same basis. This being so, the rule of the Vogel case is applicable.
At the hearing before the city government the appellees (Mr. Davis and those associated with him) assumed the burden of proving public need for the amendment in question, and inasmuch as an appeal is merely a continuation of the original proceeding, they were required to assume that burden in the Superior Court.
Because the object of the petition to the city government was the acquisition of a special privilege, much of the evidence centered on the disadvantages of the old location of the funeral home as contrasted with the advantages of the new location — evidence which had no material bearing on the broad question of public interest.
No substantial reasons for the amendment which were not personal were advanced at the trial, nor, so far as the record discloses, at the original hearing. In his petition to the city government Mr. Davis failed to allege any occasion for the requested change other than the fact that it would make possible the sale of his property to Mr. Foley. Indeed, the case appears to have been tried from beginning to end as though the conflicting interests (those of Mr. Scott, on the one hand, and those of Mr. Davis and Mr. Foley, on the other) comprised the only question for determination; in other words, as though Mr. Davis' petition were an application to a board of adjustment for the granting of an exception. See Kennedy v. Evanston, 348 Ill. 426, 434.
It follows that since the evidence was not directed to the essential issue of public interest, the decision appealed from must be set aside. Nothing herein contained, however, is to be construed as precluding the appellees from filing a new petition with the city government.
Appeal sustained.
BURQUE, J., dissented: the others concurred.