Opinion
No. 3978.
Decided April 3, 1951.
In an appeal from the decision of the zoning board of adjustment, the question whether the plaintiff owner of a private dwelling located in a single residence district was entitled to a variance from the terms of an ordinance to permit converting such house into a neighborhood grocery presented a question of fact for the Trial Court. In such case, the fact that there was evidence which might justify a variance under the provisions of R.L., c. 51, s. 62 III does not entitle the petitioner to such relief as a matter of law where the denial of the petition was not unreasonable. Where the Trial Court could properly rule on the evidence that the petitioner failed to establish that he was entitled to a variance from the terms of an ordinance it did not err in failing to consider conditions and restrictions which could have been attached to the allowance of a variance. The proper zoning of a particular area in a city is not affected by an alleged invalid spot zoning of an adjoining area. In an appeal to the Superior Court from the decision of the board of adjustment of a city, the city itself rather than the board of adjustment is the proper party defendant.
APPEAL, from a decision of the zoning board of adjustment of the city of Dover denying plaintiff's petition to convert his private dwelling, situated on the westerly side of Stark Avenue, into a small "neighborhood grocery" so-called, by using the downstairs front room for that purpose. The zoning ordinance of the city did not authorize the issuance of a permit for the requested conversion and plaintiff sought a variance from the terms of the ordinance. Trial by the Court (Leahy, J.) with a view resulted in a decree dismissing the appeal.
The following is a summary of the Court's findings, rulings and decree. The plaintiff is sightless and unemployed. He receives a monthly pension of $65. He owns, jointly with his wife, the house in question which is a single family residence located away from the thickly settled area of Dover in a section which is being developed by the erection of single residence dwellings. The zoning ordinance, enacted July 8, 1948, classified this area as a "Single Residence District." The houses in this area are not too near together. Some two houses north of the plaintiff there is a small bake shop; a convalescent home is operated across the street from him; the south there is a small chicken farm, all in existence prior to the adoption of the ordinance. About a thousand feet to the south of plaintiff's property there was being operated at the time of the passage of the ordinance a greenhouse and a grocery store which particular area was zoned as a "Local Business District."
The conversion sought requires the cutting of a door on the north side of the house for entrance to the proposed store and the installation of shelves and equipment. Plaintiff expended $200 effectuating the change before the necessity of obtaining a permit was called to his attention.
Stark Avenue is a main thoroughfare leading from Dover to Portsmouth. There is no room for adequate parking of motor vehicles between the highway and the sidewalk in front of the house. A parking lot for the use of patrons could be constructed on the north side of the house.
The plaintiff "merely seeks to engage in a new enterprise in an area which prohibits such enterprise. There is no unnecessary hardship imposed upon the petitioner by refusal to grant the variance sought."
The Court ruled "that the claims of the petitioner are not substantiated by the evidence. That the Board of Adjustment for the city of Dover acted legally and reasonably in denying a variance and dismissing the appeal of the petitioner. The interests of the public in the instant matter do not require that the zoning ordinance should be suspended or varied. The order of the Board of Adjustment is approved and this Petition is Dismissed."
Plaintiff's exceptions to the admission and exclusion of evidence, to findings of fact and rulings of law, to the decree approving the order of the board of adjustment and dismissing the petition, to the denial of his motion to set aside findings and rulings and the decree and for a decree notwithstanding findings, rulings and decree were reserved and transferred.
Charles F. Hartnett for the plaintiff.
Donald R. Bryant, city solicitor, for the defendant.
The findings of the Court are amply supported and fully justified by the evidence. Plourde v. Nashua, 93 N.H. 376, 378; Fortuna v. Zoning Board of Manchester, 95 N.H. 211, 213. The fact that other real estate in the immediate vicinity will not be lessened in value by the allowance of the variance, that no substantial physical changes in the property are necessary or contemplated, that changes were commenced in ignorance of the ordinance, that the denial of the variance will impose a financial hardship on the plaintiff, do not as he contends entitle him as a matter of law to the relief which he seeks. Stone v. Cray, 89 N.H. 483, 488; St. Onge v. Concord, 95 N.H. 306, 308. They are merely factors to be considered by the Court in determining on the evidence presented if the plaintiff is entitled to relief under the provisions of section VI, D, 4c of the zoning statute (R.L., c. 51, s. 62 III) by which the board of adjustment is given power "to authorize upon appeal in specific cases such variance from the terms of the ordinance as will not be contrary to the public interest, where, owing to special conditions, a literal enforcement of the provisions of the ordinance will result in unnecessary hardship, and so that the spirit of the ordinance shall be observed and substantial justice done." The Court found that plaintiff was not so entitled and "it certainly cannot be said that no reasonable person could have reached such a conclusion." Plourde v. Nashua, supra, 378.
Plaintiff's contention that the Trial Court erred in not treating the trial as one de novo (Vogel v. Board c. of Manchester, 92 N.H. 195) is not supported by the record. The Court specifically ruled in denying plaintiff's motion to that effect made after trial, that he did not act under the misapprehension that the plaintiff was not entitled to a trial de novo. The fact that the Court heard all the witnesses presented by both sides and made findings and rulings on the evidence so presented also refutes plaintiff's contention.
It is true that the Court inquired of the secretary of the board of adjustment as to the basis for their denial of the variance. He also stated in answer to an objection made by plaintiff's counsel to his so inquiring that it is "always a finding by the Court whether they exercised reasonableness. I have got to consider whether they acted properly," and he did so rule in his decree. Even though it can be argued that the Court's language and his ruling in that respect may not be technically correct, it, amounts to no more, however, than a statement that he was seeking to determine on all the evidence whether or not a variance was warranted under the provisions of the ordinance, that he concluded it was not and that the board having reached the same result acted properly. Sundeen v. Rogers, 83 N.H. 253, 254.
Plaintiff's contention that the Trial Court erred in failing to consider conditions or restrictions that could have been attached to the allowance of the variance requested is without merit. The Court could properly rule on the evidence that the plaintiff failed to prove that he was entitled to any variance from the terms of the ordinance. Scott v. Davis, 94 N.H. 35, 37. See note 168 A.L.R. 113. The question of conditions to be imposed upon a variance if granted was therefore immaterial.
It is very difficult to understand the logic of plaintiff's argument that the zoning as "Local Business District" of the area about one thousand feet away from plaintiff's premises, which contains the greenhouse and the grocery store previously mentioned, constitutes spot zoning and invalidates the ordinance generally or at least in the area where plaintiff's property is situated and entitles him to the relief which he seeks. Unlike Kimball v. Blanchard, 90 N.H. 298, there is no evidence in this case that the zoning of the area in which plaintiff's premises are situated as a "Single Residence District" was not warranted by the character of the neighborhood and was not made in accordance with a comprehensive plan (R.L., c. 51, s. 52) and with a view to the future needs of the city as well as to its present conditions. Edgewood Civic Club v. Blaisdell, 95 N.H. 244, 246. The proper zoning of this area would not be affected by any invalid spot zoning of an adjoining area if such there were. Edgewood Civic Club v. Blaisdell, supra.
There was no error in the Court's failure to grant any of plaintiff's requests. Request 1 was granted insofar as it was material. Requests 2, 3, 4 referred to the future use of the property if the variance were granted; they were also immaterial. Requests 5, 6, 7, 8, 12 did not call for specific findings and there is no evidence that the Court did not consider the factors therein mentioned in arriving at his decision. Requests 9 and 10 pertained to spot zoning and were immaterial to the issues in the case. Requests 11 and 15 have already been disposed of. We cannot see how plaintiff has been prejudiced by the Court's failure to grant requests 13 and 14 as the decree was not based on the traffic issue.
Plaintiff's motions after the decree do not raise any issue not already considered and disposed of.
The city of Dover and not the board of adjustment is the proper party defendant and the case has been so considered. Kearney v. Hazelton, 84 N.H. 228; see Stone v. Cray, 89 N.H. 483, 484.
Exceptions overruled.
All concurred.