Civic Club v. Blaisdell

• Decision Date: 05 October 1948
• Docket Number: No. 3758.,3758.
• Citation: Civic Club v. Blaisdell, 95 N.H. 244, 61 A.2d 517 (N.H. 1948)
• Parties: EDGEWOOD CIVIC CLUB v. BLAISDELL et al.
• Court: New Hampshire Supreme Court

61 A.2d 517

EDGEWOOD CIVIC CLUB

v.BLAISDELL et al.

No. 3758.

Supreme Court of New Hampshire.

Oct. 5, 1948.

Exceptions from Superior Court, Cheshire County; Wheeler, Judge.

Petition in the nature of an appeal by Edgewood Civic Club against Raymond A. Blaisdell and another to set aside a zoning amendment which constituted named defendant's premises a business district. On defendants' exceptions to the master's report to the decree, and to the allowance of an amendment to the petition.

Exceptions overruled.

Petition, in the nature of an appeal, R.L. c. 51, § 64, to set aside a zoning amendment passed in 1947 by the city councils of Keene constituting ‘the premises at No. 664 Main Street as a business district.’ These premises of the defendants include a dwelling house purchased in 1945 and the adjoining land, on which they desire to erect a novelty shop, purchased in 1946. The defendants' property has a frontage on Main Street of 301 feet and a depth of 120 feet and for many years prior to the disputed zoning amendment was in a single residence district which contains forty-four residences, most of which lie West of Main Street. Many of plaintiff property owners in the western section of this district, known as Edgewood, hold their land subject to restrictions imposed in deeds from the Keene Forestry Association designed to improve the residential character of the community.

On the zoning map the area on the north, the west (across Main Street) and a fifty foot strip along Main Street southerly of the defendants' premises is zoned as ‘single residence.’ The defendants' premises are bounded on the east by an ‘unrestricted’ district, being the city gravel pit and sewerage filter beds and on the south, except the fifty foot strip, by an ‘agricultural’ district on which is located a Coca Cola Bottling Plant. Certain nonconforming uses in existence when the residential district was formed in 1926 have continued with some modification in the intervening years. Thus north of defendants' premises is the Holden Sheet Metal Works (originally a garage); on the west across the street a Howard Johnson restaurant (originally a woodworking plant) and a wholesale poultry business (originally a farm.)

After hearing with a view the master (Hon. Thomas L. Marble) in addition to the facts stated above made the following special findings:

‘1. Restriction of the triangular tract in question to single residences, when originally zoned, was reasonable.

‘2. The object of the defendants' petition to the city councils was the acquisition of a special privilege, and the evidence does not warrant a finding that there is a public need for the ordinance of April 17, 1947.’ The Master's findings and report was approved by the Superior Court who accepted the recommendations contained therein that the amendment to the zoning ordinance was invalid as ‘spot’ zoning. The defendants' exceptions to the report, the decree and the allowance of an amendment to the plaintiff's petition was allowed by Wheeler, J. Arwe & Arwe, of Keene, for plaintiff.

Homer S. Bradley, of Keene, for defendants.

Edward C. Sullivan, City Sol., of Keene, for City of Keene.

KENISON, Justice.

Zoning regulations are based on certain fundamental propositions. ‘Such regulations shall be made in accordance with a comprehensive plan.’ R.L., c. 51, § 52, so that zoning is by districts ‘and not by individual pieces of property’, Kimball v. Blanchard, 90 N.H. 298, 299, 7 A.2d 394, 395, R.L. c. 51, § 51 with a view to the future needs as well as the present conditions of the city. Kimball v. Blanchard, supra, 90 N.H. 300, 7 A.2d 394. Nonconforming uses existing when the regulations go into effect are allowed to continue but not to multiply when they are harmful or improper Bassett, Zoning (1940 ed.) 105. Since zoning is not static provision is made for amendments and changes, R.L. c. 51, § 54, to be granted and ‘exercised reasonably’ (Brady v. City of Keene, 90 N.H. 99, 101, 4 A.2d 658) when in the public interest and denied when it effects a special privilege solely. Scott v. Davis, 94 N.H. 35, 38, 45 A.2d 654.

The amendment to the Keene zoning ordinance changing defendants' property from a single residence district to a business district has been found by the master to be ‘not a district in any real sense of the term, but is, on the contrary, an individual piece of property arbitrarily designated as a zone.’ This coupled with the finding that there was no ‘public need for the ordinance of April 17, 1947,’ makes out a case of spot zoning if there was evidence to support it. The record does not indicate that there was any public necessity or convenience involved in the allowance of a novelty store or a business district at defendants' premises nor does it show that it would enhance the development of the community except as it was an economic benefit to the defendants alone. It was not a case where a small business area was a convenience or necessity in or near a large residential area. The mere fact that the amendment zoned a small area at the request of a single owner does not of itself make the result spot zoning. ‘The invalidity of ‘spot Zoning’ depends upon more than the size of the ‘spot.” Town of Marblehead v. Rosenthal, 316 Mass....