We do not consider that the temporary unavailability of the minutes of the testimony relieved the plaintiffs of the necessity of stating the ground of their motion for rehearing. Verbatim stenographic records of testimony at zoning hearings are not required by statute, nor are they commonly made, unless by the parties themselves. The variance in question was granted by the Nashua zoning board of adjustment on August 29, , by a vote of 3 to 2. The consequence is that the petition for a writ of mandamus must be denied. Accordingly, the plaintiffs' appeal will be dismissed. The plaintiffs, by petition for a writ of mandamus, seek to require the zoning board of adjustment of the city of Nashua to meet and vote upon a motion for rehearing filed with the board by the plaintiffs. Lesieur, for the defendants city and zoning board, filed no brief. Minutes or a summary of such testimony, when kept by a clerk of the board, although subject to public inspection when filed RSA A: The grounds alleged in the plaintiffs' supplemental filing of September 22, were those commonly presented by a motion for rehearing, and relied upon the statutory prerequisites for the granting of a variance.
It is not suggested that the order or decision of the board in this case was not promptly recorded and made available to the public. So far as appears, they could as readily have been stated, at least in general terms, on September 12, The issues so presented were reserved and transferred without ruling by the Superior Court Morris, J. Lesieur, for the defendants city and zoning board, filed no brief. The plaintiffs seek to justify their failure to state the ground of their motion for rehearing by the circumstance that the "minutes of the [August 29th, ] meeting were not transcribed from shorthand" until September 19, , and not "accepted and signed by the Clerk of the Board until September 26, The plaintiffs point out that the motion "to deny a rehearing" failed of adoption and argue that this was ineffective action, which neither denied nor granted a rehearing. It is reasonably apparent, however, that a motion to grant a rehearing would have suffered a similar fate. The board considered this to be a denial of the motion, as the plaintiffs' appeal has recognized. The consequence is that the petition for a writ of mandamus must be denied. The petition for writ of mandamus is grounded on the proposition that the board failed to take action upon the motion for rehearing as required by RSA The plaintiffs, by petition for a writ of mandamus, seek to require the zoning board of adjustment of the city of Nashua to meet and vote upon a motion for rehearing filed with the board by the plaintiffs. The plaintiffs attended the hearing on August 29, , and the nature of the evidence presented must have been ascertainable by counsel retained after the hearing. Following appointment of a new member, the board met on September 20, with only four members present. The practical result was that the board considered the motion, and did not grant it. Verbatim stenographic records of testimony at zoning hearings are not required by statute, nor are they commonly made, unless by the parties themselves. Since the motion originally filed was insufficient, it was not subject to amendment by the supplemental filing of September 22, after the twenty-day limitation had expired. We conclude that the plaintiffs' failure to file a motion for rehearing satisfying the requirements of RSA Supreme Court of New Hampshire. The grounds alleged in the plaintiffs' supplemental filing of September 22, were those commonly presented by a motion for rehearing, and relied upon the statutory prerequisites for the granting of a variance. Thereafter, the plaintiffs first retained counsel who on September 12 sought a rehearing by motion which specified no reasons therefor, but requested rehearing before the full membership of the board, one member of which had died in the interim. The city demurred to the petition for a writ of mandamus. The crux of the matter is that for want of any seasonable statement of grounds the motion for rehearing was insufficient to invoke the jurisdiction of the board, or to entitle the plaintiffs to any order except denial. The defendants moved to dismiss both actions, upon the ground that no proper motion for rehearing was filed by the plaintiffs under RSA The clerk recorded the action as follows: We do not find this argument persuasive. That a failure to grant is equivalent to denial is not a novel conclusion.
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