Alcorn v. City of Rochester Zoning Board of Adjustment

341 A.2d 269, 115 N.H. 383, 1975 N.H. LEXIS 315

• Court: Supreme Court of New Hampshire
• Decided: June 30, 1975
• Docket: No. 7202
• Status: Published

Opinion

Per curiam.

In Alcorn v. Rochester Zoning Board of Adjustment, 114 N.H. 491, 322 A. 2d 608 (1974), which was an appeal from the denial of a variance, this court remanded the matter to the board of adjustment for a clarification of the grounds upon which the variance was denied so that the plaintiffs would not be denied their right of appeal. This decision was handed down on July 19, 1974. On July 22, 1974, by letter, counsel for the plaintiffs wrote counsel for the defendant seeking a resolution of the matter. After a period of inaction on the part of the board and at the suggestion of the board’s counsel, a request was made directly to the board on October 1, 1974, wherein counsel for the plaintiffs sought compliance with our order. To this date there has been no response from the board.

Plaintiffs filed a motion for judgment in the superior court which was denied by Mullavey, J., who transferred plaintiffs’ exceptions.

In spite of repeated efforts on the part of the plaintiffs to obtain compliance with our remand, almost a year has elapsed and the board has not yet complied. Although two vacancies on the board were to be filled at the August 6, 1974 meeting of the city council, no reason appears why, before that time, the board could not have articulated its reasons for the denial of plaintiffs’ application. Nor does there appear to be any reason why the board could not have done so after the vacancies were filled. Counsel for the plaintiffs offered to make an additional presentation by letter of August 6, 1974, to the board with its new membership. The same offer was made by letter dated October 1, 1974. The record before us shows no response by the board to those offers. The inaction by the board strongly suggests that no reasons exist for the denial of the variance. Accordingly, unless within sixty days the board complies with the remand ordered in Alcorn v. Rochester Zoning Board of Adjustment, 114 N.H. 491, 495, 322 A.2d 608, 610 (1974), the plaintiffs’ appeal is sustained.

Remanded.

Warren B. Rudman, attorney general, and Edward A. Haffer, assistant attorney general, filed memorandum of law. Sheehan, Phinney, Bass 8c Green, by James E. Higgins, filed memorandum of law.