Opinion
No. 4380.
Argued March 1, 1955.
Decided March 25, 1955.
In a zoning appeal from the decision of the city council denying the plaintiff's petition for amendment of the ordinance, the evidence warranted the Trial Court's findings and rulings that the plaintiff failed to sustain the burden of establishing that such denial was unreasonable or unlawful.
The operation of a commercial establishment in a residence district in violation of a zoning ordinance was properly restrained by the Trial Court.
APPEAL, from a decision of the mayor and city council of Keene denying an amendment to the zoning map designed to change from a single residence to a business zone certain premises on Park and Colorado Streets including those of Antoinette Parenteau, and
PETITION, for an injunction by the city of Keene to restrain Antoinette and Elphege Parenteau from maintaining a business establishment on said premises in violation of the zoning ordinance.
After hearing, with a view, the Court (Leahy, J.) found that from November, 1935, to December, 1949, Antoinette conducted a small business in her home at 64 Colorado Street selling corsets and dresses and a few other items. A sign on her home read "Antoinette's Dress Shop." In the first week of December, 1949, she moved to a single family house at 74 Colorado Street part of which she uses as a store. Her business activities at the new location were expanded into those of a so-called general or variety store and are conducted on a larger scale than those at the former dress shop.
The Court dismissed the appeal because appellant failed to establish the burden of proving "that the failure to grant the variance or permit the amendment sought was unreasonable or unlawful." She, her agents, servants and others were ordered "to forthwith cease and desist from the further operation or maintenance of any business establishment in violation of the zoning ordinance at said 74 Colorado Street."
Her exceptions to the findings of fact, rulings of law and the decree, as being against the law, the evidence and the weight of the evidence, as well as her exceptions to "erroneous rulings adverse" to her in the course of the trial, were reserved and transferred.
Edward J. O'Brien and William H. Kennedy, city solicitor (Mr. O'Brien orally), for the city of Keene.
Olson Olson (Mr. Arthur Olson orally), for Antoinette and Elphege Parenteau.
Howard B. Lane for Rudolph L. Piche, intervenor, furnished no brief.
The main issue in this case is whether the city council acted unreasonably or arbitrarily in denying the amendment to the zoning ordinance sought by Antoinette Parenteau. Brady v. Keene, 90 N.H. 99, 101.
Upon the hearing before the Court she had the burden of proving that the decision of the city council was unreasonable or unlawful and all findings of the council "upon all questions of fact properly before it shall be deemed prima facie lawful and reasonable; and the order or decision appealed from shall not be set aside or vacated, except for errors of law, unless the court is persuaded by the balance of probabilities, on the evidence before it, that said order or decision is unjust or unreasonable." R. L., c. 51, s. 65 c (as inserted by Laws 1949, c. 278, s. 2); Gelinas v. Portsmouth, 97 N.H. 248, 249; Carrick v. Langtry, 99 N.H. 251, 253. We are of the opinion that the Court's findings and rulings and its decree dismissing the appeal were warranted.
There was no evidence that the existing classification of this district as a single residence zone was not a proper exercise of the authority granted by R. L., c. 51, ss. 50-52; Stone v. Cray, 89 N.H. 483; Kimball v. Blanchard, 90 N.H. 298. There was evidence that Antoinette conducted another store nearby from 1935 to 1949 and this one since then and that it would be a financial hardship on her if she was not permitted to continue so doing. Also that it was convenient for some of the people in the neighborhood to have such a store maintained. The evidence also showed that the present store was different in character from the previous one, being more of a general or variety store than a dress shop as the first store originated. It was also testified that traffic conditions in the neighborhood were affected by its maintenance and that papers and cartons from purchases made therein were blown on neighboring lawns and that children cross an adjoining lawn to reach the store. There was testimony that the store is used to buy "odds and ends" and that the regular food shopping is done elsewhere.
On the record the Court could properly find and rule that the petitioner failed to sustain the burden of establishing that denial her petition for amendment of the ordinance was unreasonable or unlawful. Scott v. Davis, 94 N.H. 35, 38; Edgewood Civic Club v. Blaisdell, 95 N.H. 244, 246. Since no appeal was taken from the denial of the petition for a variance, the findings and rulings on hardship and on the effect of the present use on the values of surrounding properties are significant only as they relate to the issue of public need.
The maintenance of the store in its present location being in violation of the ordinance the Court's decree restraining its operation was proper. R. L., c. 51, s. 70; Stone v. Cray, supra.
The above being the only exceptions briefed or argued the order is
In Keene v. Parenteau, exceptions overruled; in Parenteau v. Keene, appeal dismissed.
All concurred.