KEARNEY v. HAZELTON, 84 N.H. 228 (1930)

149 A. 78

RICHARD KEARNEY a. Ap’ts v. OREN L. HAZELTON a.

Supreme Court of New Hampshire Hillsborough.
Decided February 4, 1930.

In an appeal under the zoning statute (P. L., c. 42, s. 61) from a decision of the board of adjustment the members of the board are not properly made parties. When a restraining order on petition of adjacent owners has been issued against the enforcement of an order of the zoning board in favor of an applicant for a permit who subsequently withdraws appearance the order should be made permanent.

APPEAL, under Public Laws, chapter 42, section 61, by abutting owners of residential property from a decision by the board of adjustment for the city of Manchester.

A bill of exceptions was allowed by Scammon, J. The facts are stated in the opinion.

Thorp Branch, for the plaintiffs.

James A. Broderick, for the defendants.

PER CURIAM.

The application of a landowner or his tenants for a building permit in contravention of the terms of the zoning ordinance of the city had been granted by the board, subject to appeal to the superior court. A restraining order was issued and continued pending a decision here of questions presented by the plaintiffs’ exceptions to a decree of the superior court, affirming the decision of the board. When the case came on for argument, it was announced that the landowner and tenants had withdrawn their appearance. The other defendants named in the appeal to the superior court are the members of the board of adjustment. They are not properly made parties. Boston Maine Railroad v. State, 77 N.H. 437.

As there is no one defending in the case, the restraining order now in force should be made permanent.

Case discharged.

BRANCH, J., did not sit.

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