Arsenault v. City of Keene
| Decision Date | 28 December 1962 |
| Parties | Ulysse A. ARSENAULT et al. v. CITY OF KEENE. |
| Court | New Hampshire Supreme Court |
Howard B. Lane, Keene (by brief and orally), for plaintiffs.
Thayer Fremont-Smith, City Sol. (by brief and orally), for defendant.
The plaintiffs' justification for maintaining a four-apartment building in a general residence district, which is limited to two apartments, is that this use of their property is a nonconforming use which was legalized by the literal terms of the zoning ordinance of the city of Keene when it was amended and re-enacted subsequent to 1949. The plaintiffs' contention is stated in their brief in the following language: '* * * it was the intent of the City of Keene each time it amended and re-enacted its Zoning Ordinance to forgive all past violations and everyone started with a clean slate when a new Zoning Ordinance was enacted.' The defendant contends that this construction of the Keene zoning ordinance is unwarranted, would encourage and reward surreptitious violations of the ordinance, and would soon result in so many zoning exceptions as to render zoning ineffective and virtually meaningless. These opposing contentions necessitate an examination of the various zoning amendments. At this juncture it may be noted that there is no claim before us that the plaintiffs have acquired any vested rights from the city based on estoppel, the passage of time, laches, or the fact that the permit issued to the plaintiffs to convert the first floor into two apartments was illegal. Without passing on these matters in this case, it will be observed that success on these grounds have been infreguent in this state and in most other jurisdictions. Dumais v. Somersworth, 101 N.H. 111, 115, 134 A.2d 700; Annot. 6 A.L.R.2d 960. And, of course, no rights were created by the conversion of the second floor of plaintiffs' property into two apartments which was not authorized by the city or any of its officials in any manner.
The city of Keene, since its original zoning ordinance was adopted in 1926, has made periodic amendments and re-enactments in its zoning ordinances. RSA 31:64. Brady v. City of Keene, 90 N.H. 99, 4 A.2d 658; Edgewood Civic Club v. Blaisdell, 95 N.H. 244, 61 A.2d 517. At the time the plaintiffs purchased their property in 1949, the 1948 ordinance was in effect. Section 8 thereof contained the provision which was also present in previous zoning ordinances. The provision in part reads as follows: 'This ordinance will not apply to buildings or structures existing at the time this amended ordinance takes effect, nor to the use existing at such time in any building or structure * * *.' In the 1955 amendment to the zoning ordinance, section 8 was carried forward in the same language. In the 1957 amendment it read in part as follows: 'This ordinance shall not apply to buildings or structures existing May 1955, nor to the use existing at such time in any building or structure * * *.' The plaintiffs contend that the zoning amendments of 1955 and 1957 automatically legalized their previous violations of the ordinance.
If section 8 of the Keene zoning ordinance was the only one pertinent to this case, the plaintiffs' contention would have force. However, section 23 of the zoning ordinance contained the following statement: 'The enactment of any change in the zoning ordinance shall in no way be construed as legalizing any existing violation of said zoning ordinance.' This language was in the 1948 amendment to the ordinance, which was prior to the alleged violations in this case. The same provision was repeated in the amendments of 1955 and 1957. Both sections 8 and 23 of the ordinance must be read and construed as a whole. The plaintiffs contend that the two provisions are contradictory and irreconcilable and that section 8 being more specific than section 23 should prevail. While the plaintiffs apparently concede that this gives little effect to section 23, they contend that if the city of Keene wants 'to hop on one foot all the time' it should be allowed to do so. While this contention is intriguing, it is contrary to the customary rule that sections of ordinances and statutes should be construed as a whole and not viewed separately in isolation.
A nonconforming use is only a use which legally exists at the date of...
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