Brady v. City of Keene, 3040.
| Decision Date | 07 February 1939 |
| Docket Number | No. 3040.,3040. |
| Citation | 4 A.2d 658 |
| Parties | BRADY v. CITY OF KEENE. |
| Court | New Hampshire Supreme Court |
Transferred from Superior Court, Cheshire County; Burque, Judge.
Petition by James Brady against the City of Keene for a declaratory judgment under Laws 1929, c. 86, concerning the re-zoning of district in which petitioner's property was located. Defendant's motion to dismiss was granted, and the plaintiff's exception to the granting of the motion was transferred.
Exception overruled.
Petition, for a declaratory judgment under Laws 1929, c. 86. Trial by the court.
In June 1936, the plaintiff purchased the land and buildings situated at the corner of Main and Marlboro Streets in the City of Keene. Under the zoning ordinance then in force this property was located in a single residence district. At sometime prior to May 6, 1937, the plaintiff filed a petition with the city government praying that "this ordinance be amended so as to place his property in a semi-residence district. A hearing, upon notice duly ordered and published, was held upon this petition on June 3, 1937, and, no one appearing in opposition, its prayer was granted.
On October 20, following, the plaintiff filed with the board of engineers and the board of aldermen a request for a permit to store petroleum products upon his land. This permit was granted by the city clerk to whom had previously been delegated the right to issue such permits if approved by the chief of the fire department. On December 2, 1937, a protest against the granting of this permit was filed with the board of mayor and aldermen and on December 16, it was by them revoked. Notice of this revocation was forthwith sent to the plaintiff.
Also on December 2, 1937, the plaintiff petitioned the city council for leave to construct a ramp up to and across the sidewalk adjacent to his property for the purpose of access to it with vehicles. At the hearing upon this petition, which was held pursuant to notice duly ordered, the plaintiff was given leave to withdraw.
On December 17, three persons who owned lots in the plaintiff's immediate neighborhood filed a petition with the board of mayor and aldermen praying that the plaintiff's land be returned to the more restricted zone in which it lay at the time when the plaintiff bought it. Notice on this petition was duly ordered and published and a hearing thereon was held on January 20, 1938, at which time it was voted to return the plaintiff's property to a single residence district. To this order the plaintiff filed a written protest.
In relation to the foregoing facts the court found that at sometime prior to the plaintiff's application for the first change in the zoning law, he had begun negotiations with various oil companies with a view to leasing a part of his premises for a filling station, and that these negotiations finally culminated in a written lease entered into between the plaintiff and the Sinclair Refining Company. The date of this lease was stated therein as November 30, 1937, but the court found that it was not signed by the plaintiff until December 6, 1937, and was not signed by the oil company until February 1, 1938, and furthermore, that it "was finally executed by the oil company simply for the purpose of having the lease to produce in court at the date of hearing, which was February 24, 1938, and for the purpose of showing that the plaintiff had changed his position by reason of the actions of the city government." The only other finding of action taken by the plaintiff in reliance upon the first change in the zoning ordinance is that he removed "some shrubbery and cut down a few trees that were on the premises."
The court also found that the plaintiff was guilty of "a fraud upon the city government" in that he gave as a reason for his requested change in the zoning ordinance the fact that he wished to operate a coffee shop in connection with the tourist business which he conducted upon the premises, when he "had the plan in mind at that time to lease a part of the premises for a filling station."
The findings conclude with the statement that "The court is of the opinion that the actions of the city government and their representatives were legal, that the city government had the right to re-zone the district as they did, and consequently at the end of the plaintiff's testimony the defendant's motion to dismiss was granted."
The plaintiff's exception to the granting of this motion was transferred by Burque, C. J.
Howard B. Lane, of Keene, for plaintiff.
Walker S. Kimball, City Sol, of Keene, for defendant.
The legislative grant of power to the city to enact its zoning ordinance (Pub.Laws, c. 42, §§ 48-68), is constitutional. Sundeen v....
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