Aranosian Oil Co., Inc. v. City of Portsmouth

• Decision Date: 27 July 1992
• Docket Number: No. 91-043,91-043
• Citation: 612 A.2d 357,136 N.H. 57
• Parties: , 26 A.L.R.5th 913 ARANOSIAN OIL COMPANY, INC. v. CITY OF PORTSMOUTH.
• Court: New Hampshire Supreme Court

Page 357

612 A.2d 357

136 N.H. 57, 26 A.L.R.5th 913

ARANOSIAN OIL COMPANY, INC. v. CITY OF PORTSMOUTH.

No. 91-043.

Supreme Court of New Hampshire.

July 27, 1992.

Sheehan Phinney Bass & Green P.A., Manchester (William J. Donovan on the brief and orally), for plaintiff.

Sharon A. Cuddy, Asst. City Atty., and Wholey & Pelech Law Office, Portsmouth (Sharon A. Cuddy and Bernard W. Pelech on the brief and orally), for defendant and intervenors.

HORTON, Justice.

The plaintiff, Aranosian Oil Company, Inc. (Aranosian), appeals the decision of the Superior Court (Gray, J.) upholding the Portsmouth Zoning Board of Adjustment's (ZBA) denial of Aranosian's motion for rehearing. The motion for rehearing concerned the ZBA's denial of Aranosian's request for a variance authorizing the already completed conversion of a portion of its existing grocery store/gas station to a convenience store. Aranosian raises two issues on appeal. First, it asserts that the City of Portsmouth (the City) is estopped from enjoining the operation of the convenience store because Aranosian, relying upon the building permit issued by the City, incurred $45,000 in remodeling costs for the conversion. Second, it maintains that its remodeling project was not an expansion of a non-conforming use and that, therefore, no variance was required. Because we determine that estoppel applies to the facts of this case, we reverse.

On December 15, 1989, Aranosian submitted a building permit application to the Portsmouth building department, seeking to eliminate the service bay area of its grocery store/gas station and to replace it with beverage coolers and a convenience store customer sales area. The application listed the existing use as "gasoline sales/snack shop" and the proposed use as "gasoline sales/'C' store." After reviewing the adequacy and completeness of the application, the zoning officer asked Aranosian to submit more detailed drawings of the proposed project. Consequently, additional drawings were filed with the building department on December 18, 1989. These plans depicted the addition of large cooler units to the existing service bay area and the elimination of the overhead doors. The plans also specifically identified the remodeled area as the "convenience store sales area."

The building permit was approved by the necessary authorities, including the zoning officer, and was subsequently issued on January 3, 1990. Aranosian completed the work as it appeared on the plans at a cost of $45,000. Grocery store operations continued until May 3, 1990, when the City ordered that "all work in progress as a result of the January 3rd permit be ceased at this date and not resumed until such time as a variance, sought from the Portsmouth Board of Adjustment for this expansion, is approved." The City's reason for the cease and desist order was that the building permit had been issued in error because "[i]t was not realized that the service bays would be abandoned to accomodate [sic] the expansion of retail sales."

On May 15, 1990, Aranosian requested a variance from the ZBA. Its request was denied. Aranosian subsequently filed a motion for rehearing, seeking a determination that either no variance was required or, in the alternative, that the granting of a variance would be appropriate. As noted by the trial court, the motion, to the extent that it addressed the lack of need of a variance, was an appeal of an administrative act (the cease and desist order) rather than an assertion of the right to a variance. On September 18, 1990, the ZBA denied Aranosian's requested relief. On appeal to the superior court, Aranosian repeated its previous arguments. Ruling that "the expansion [was] not a legal expansion of a prior legal non-conforming use" and that "the doctrine of estoppel [did not] ... apply to this situation," the trial court dismissed Aranosian's appeal and upheld the action of the ZBA. This appeal followed.

Under the applicable standard of review, we will uphold the trial court's decision unless it is not supported by the evidence or is erroneous as a matter of law. Cohen v. Town of Henniker, 134 N.H. 425, 426, 593 A.2d 1145, 1146 (1991). With this standard in mind, we address Aranosian's first argument that the trial court misapplied the law of estoppel to the facts of this case.

The doctrine of estoppel has been applied to municipalities " 'to prevent unjust enrichment and to accord fairness to those who bargain with the agents of municipalities for the promises of the municipalities.' " Sinclair v. Town of Bow, 125 N.H. 388, 392, 480 A.2d 173, 176 (1984) (quoting Wiggins v. Barrett & Associates, 295 Or. 669 P.2d 1132, 1142 (Or.1983)). The four elements of estoppel are:

"first, a [false] representation or concealment of material facts made with knowledge of those facts; second, the party to whom the representation was made must have been ignorant of the truth of the matter; third, the representation...