Carrick v. Langtry

• Court: New Hampshire Supreme Court
• Writing for the Court: DUNCAN
• Citation: Carrick v. Langtry, 99 N.H. 251, 108 A.2d 546 (N.H. 1954)
• Decision Date: 29 October 1954
• Parties: Richard C. CARRICK et al. v. Chester F. LANGTRY.

Page 546

108 A.2d 546

99 N.H. 251

Richard C. CARRICK et al. v. Chester F. LANGTRY.

Supreme Court of New Hampshire.

Argued Oct. 6, 1954.

Decided Oct. 29, 1954.

William H. Watson and William H. Watson, Jr., Keene, for plaintiffs.

Edward J. O'Brien, Keene, for defendant.

Olson & Olson, Arthur Olson, Keene, for intervenor.

DUNCAN, Justice.

The premises on Court Street owned by the various parties are concededly within an area of Keene zoned as a single-residence district, in which use of a building as a grocery store is forbidden unless permissible as a noncomforming use. The ordinance provides that the inspector of buildings shall enforce its provisions, and that when he finds any violation 'he shall at once issue an order for the removal of the violation by the parties responsible.' S. 21 A, C. These provisions are consistent with those of the enabling statute, which provide for enforcement of such an ordinance by 'the proper local authorities of the municipality'. R.L. c. 51, § 70.

The defendant maintains that mandamus does not lie to compel him to issue an order forbidding the use made by the intervenor because in acting upon the plaintiff's representation that the ordinance was being violated he was called upon to exercise discretion and that his determination that the use was a nonconforming one may not now be reviewed or overturned on mandamus. With this contention we agree.

The plaintiff's notification raised the question of whether the use of the Court Street premises as a store was permissible because a continuance of a nonconforming use made at the time the original ordinance was adopted, and continuing when the amended ordinance took effect. Ordinance, s. 8. This called for an investigation of the facts, which the defendant evidently made. In determining the question, he acted in a quasi-judicial capacity, being called upon to weigh and draw reasonable deductions from facts disclosed by investigation. Whitney v. Watson, 85 N.H. 238, 241, 157 A. 78. See Hood & Sons v. Boucher, 98 N.H. 399, 402, 101 A.2d 466. His discretion upon the subject if properly exercised in good faith was not subject to review or reversal on mandamus. Silverman v. Gagnon, 74 N.H. 502, 503, 69 A. 886; Hart v. Folsom, 70 N.H. 213, 217, 47 A. 603. It was not open to the Court 'to substitute the discretion of the court for that of the [defendant] in whom the statute * * * vests it.' Attorney-General v. Littlefield, 78 N.H. 185, 189, 98 A. 38, 41. There being no suggestion that the defendant acted arbitrarily or without good faith, his decision may not be set aside in this proceeding. Aetna Casualty & Surety Co. v. Sullivan, 83 N.H. 426, 434, 143 A. 687; Atwood v. Berry, 87 N.H. 331, 333, 179 A. 412.

A further reason why mandamus must be denied is found in the zoning statute. Mandamus is 'an extraordinary remedy granted only in cases where the usual modes of procedure and forms of remedy are powerless to afford relief * * *. Whenever the statutory remedy is plain and specific in its nature and fully adequate to redress the grievance * * * mandamus will not lie.' State ex rel. Chandler v. Manchester & L. R. R., 62 N.H. 29, 34. See also, Storer Post, No. 1, G. A. R. v. Page, 70 N.H. 280, 47 A. 264; Manchester v. Furnald, 71 N.H. 153, 51 A. 657.

R. L. c. 51, § 59 provides: 'Appeals to the [zoning] board of adjustment may be taken by any person aggrieved * * * by any decision of the administrative officer'; and section 62(I) of the same chapter empowers the board 'to hear and decide appeals where it is alleged there is error in any * * * decision, or determination made by an administrative official in the enforcement * * * of any ordinance * * *.' Identical provisions appear in section 19 of the ordinance itself.

Section 62(IV) of the statute, R. L. c. 51, authorizes the board of adjustment to reverse, affirm, or modify...