D. Latchis, Inc. v. Borofsky Bros., Inc.

• Citation: 343 A.2d 637,115 N.H. 401
• Decision Date: 31 July 1975
• Docket Number: No. 6938,6938
• Parties: D. LATCHIS, INC., et al. v. BOROFSKY BROTHERS, INC., et al.
• Court: Supreme Court of New Hampshire

Page 637

343 A.2d 637

115 N.H. 401

D. LATCHIS, INC., et al. v. BOROFSKY BROTHERS, INC., et al.

No. 6938.

Supreme Court of New Hampshire.

July 31, 1975.

Faulkner, Plaut, Hanna & Zimmerman, Keene (George R. Hanna, Keene, orally), for plaintiffs D. Latchis, Inc. and Keene Properties, Inc.

Bradley & Talbot, Keene (Homer S. Bradley, Jr., Keene, orally), for Borofsky Brothers, Inc.

Charles H. Morang, City Sol., filed no brief the for city of Keene.

LAMPRON, Justice.

Appeal under RSA 31:77 by plaintiffs D. Latchis, Inc. and Keene Properties, Inc., its wholly owned subsidiary, from a decision of the zoning board of adjustment of the city of Keene granting defendant Borofsky a waiver of the requirements of chapter 32, sections 19-20 of its zoning ordinance pertaining to off-street parking. The appeal was later amended to include a petition for a declaratory judgment of the rights of Latchis and Borofsky in part of the land which was the subject matter of the decision of the board of adjustment. All questions of law raised were reserved and transferred without a ruling by King, J.

The controversy concerns a strip of land 10 feet wide and about 86 feet long which runs westerly from Main Street in Keene. Prior to May 1958, the underlying fee therein was in the Boston and Maine Railroad. Borofsky whose property is northerly had an appurtenant 10-foot wide right of way thereon. Latchis whose property is situated westerly had a 20-foot wide right of way over the railroad property 10 feet of which was a part of the same right of way as that of Borofsky. The right of way was the only access to the Latchis property from Main Street. On May 2, 1958, the city of Keene acquired by deed certain premises of the railroad in that area which included the underlying fee to the 10-foot right of way in question and to the additional 10 feet which constituted the southerly half of the Latchis 20-foot right of way.

Meanwhile the city of Keene late in 1957 had started proceedings under RSA 31:92 to take some of the land owned by Latchis west of Main Street including its 20-foot right of way. This taking was alleged in the city's pleadings to be for a $250,000 public works project to alleviate a traffic problem in the area. It involved the layout and construction of a new public highway known as Gilbo Avenue and the present Railroad Square parking lot. Latchis appealed the taking and the controversy was settled by stipulations and a consent decree approved by the superior court on January 28, 1959. The terms thereof will be discussed later in this opinion.

On July 18, 1958, Brofsky had sought an injunction to prevent the city of Keene from interfering with its use of its 10-foot right of way. The city countered by proceedings to take the right of way. In settlement, the city cancelled its taking and deeded to Borofsky the 10-foot wide strip of land over which it had the right of way. It is agreed that the premises are presently being used by the city for public parking and sidewalk purposes by license of Borofsky. However, there was no condition imposed in the city's deed to Borofsky requiring it to use the granted premises either as a city street or for parking purposes. Borofsky applied for and received from the zoning board of adjustment, after a hearing held on October 18, 1971, a waiver of the off-street parking requirements of the ordinance. Borofsky proposes to build a retail store on premises including the 10-foot right of way in question which it claims to own free of encumbrances. Latchis filed a motion for rehearing and upon its denial by the zoning board of adjustment took the present appeal.

The main claims of the plaintiffs Latchis and Keene Properties are the following. Latchis, although requested by the city to give a deed in settlement of its appeal from the taking of its land and right of way refused to do so. Instead it agreed only to a consent decree allowing the taking seeking to reserve a right of reverter in its land and right of way in the event the city subsequently abandoned its use for the declared purpose of the taking. Plaintiffs maintain that the city did abandon such declared use of the land for highway and parking purposes when it conveyed the 10-foot right of way to Borofsky without mandating such use or when the zoning board of adjustment approved Borofsky's petition to build a store on it. Consequently plaintiffs argue that Borofsky owns that land subject to Latchis and Keene Properties' right of reverter in the way over it and cannot be granted a waiver to build on it without plaintiffs' concurrence in the application.

RSA 31:92 provides as follows: 'Whenever any town cannot obtain by contract, for a reasonable price, any land required for public use, such land may be taken, the damages assessed, and the same remedies and proceedings had as in case of laying out highways by selectmen.' Latchis does not contest that the land taken by the city for the layout and construction of Gilbo Avenue and the Railroad Square parking lot was for a public purpose. Club Jolliet, Inc. v. Manchester & a., 110 N.H. 172, 262 A.2d 844 (1970).

The legislature has the plenary power to define the nature of the interest which can be...