Dumais v. Somersworth

CourtSupreme Court of New Hampshire
Citation134 A.2d 700,101 N.H. 111
Decision Date30 September 1957

Burns, Calderwood, Bryant & Hinchey, Dover, for plaintiff.

Leo H. Cater, City Solicitor, Somersworth (by brief and orally), for the city of Somersworth.

DUNCAN, Justice.

On August 2, 1956, the building inspector for the city of Somersworth issued to the plaintiff a building permit authorizing him to construct on land adjoining his residence on James Avenue, in a residential district, a three-stall garage 36 X 30 feet in dimension to be used for the storage of 'trucks and/or private cars.' The plaintiff immediately commenced construction which was virtually completed by August 28, 1956, when an appeal to the zoning board of adjustment from allowance of the permit was taken by Eugene Barry, the owner of a residence on James Avenue approximately opposite the plaintiff's garage. Following a hearing before the board of adjustment at which the plaintiff was represented by counsel, the plaintiff's permit was revoked. Pending the appeal he was authorized by decree of the Court, to install doors and to paint the structure in the interest of preserving it.

The Somersworth zoning ordinance, adopted in 1953, establishes three districts, designated as 'Residential,' 'Business' and 'Agricultural.' Article III provides: 'The Residential District shall enjoy and be subject to the following provisions and restrictions': This is followed by an enumeration of one-family dwellings; 'tourist homes'; use of residences for professional offices; and 'churches, schools, sanitariums, and clubs' with certain exceptions. Subsequent provisions of the article contain specific building restrictions not in issue in this case.

The ordinance, which is loosely drawn, contains no provisions or restrictions with respect to garages, or accessory uses in any district. Cf. Sullivan v. Anglo-American Investment Trust Co., 89 N.H. 112, 193 A. 225. While the ordinance must be interpreted to require that uses established in a residential district shall be primarily residential except as otherwise provided, it discloses no purpose to prohibit the construction and use of private garages and the evidence indicates that such garages are customarily to be found in the district involved in the appeal.

The master ruled that the board committed no error of law because the ordinance 'cannot be interpreted as permitting the construction of a three-car 36' X 30' garage unattached to a dwelling to be used 'for the storage of trucks and/or private cars.'' So far as this ruling relates to the use proposed to be made of the structure for the storage of trucks we consider it to be correct.

The right to construct a garage for uses incidental and accessor to residential uses is not to be considered forbidden even though not expressly permitted by the ordinance. Pratt v. Building Inspector of Gloucester, 330 Mass. 344, 346, 113 N.E.2d 816; Needham v. Winslow Nurseries, Inc., 330 Mass. 95, 103, 111 N.E.2d 453. 'Incidental uses have always been authorized where they are customary and do no violence to the plain intent of the statute or ordinance.' 1 Yokley: Zoning Law and Practice (2nd ed.) 104.

It is equally plain however that the ordinance was intended to prevent uses of a business or commercial nature within the residential district, except as expressly permitted by the ordinance, or incidental to uses so permitted. See Foo v. Manchester, 97 N.H. 346, 350, 88 A.2d 171. On the record before us, neither the board nor the master erred in ruling that storage of the plaintiff's two oil trucks in a garage on his residential premises was a violation of the ordinance. People v. Scrafano, 307 Mich. 655, 12 N.W.2d 325; Lowry v. City of Mankato, 231 Minn. 108, 42 N.W.2d 553; Dolan v. DeCapua, 16 N.J. 599, 109 A.2d 615. See City of Warwick v. Campbell, 82 R.I. 300, 107 A.2d 334; annotation 150 A.L.R. 494.

However by ordering revocation of the permit issued to the plaintiff, the board denied his right to build and use the garage for the storage of 'private cars.' This we believe was error. Such a use made as an incident of a permitted residential use is neither expressly nor impliedly forbidden by the ordinance. If the plaintiff chooses to make this use, he should neither be forbidden to do so, nor required to raze a structure erected in reliance upon a permit in part lawfully granted.

Although the issue is not...

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17 cases
  • Turco v. Town of Barnstead
    • United States
    • New Hampshire Supreme Court
    • October 30, 1992
    ...the issuing official exceeded his authority by issuing a permit in violation of an ordinance then in effect." Dumais v. Somersworth, 101 N.H. 111, 115, 134 A.2d 700, 702 (1957). Because matters such as public fixtures and zoning ordinances are legislative prerogatives, a person acquires min......
  • Town of Windham v. Alfond
    • United States
    • New Hampshire Supreme Court
    • December 30, 1986
    ...the permitted primary use, Gratton v. Pellegrino, 115 N.H. 619, 621, 348 A.2d 349, 351 (1975) and customarily, Dumais v. Somersworth, 101 N.H. 111, 113, 134 A.2d 700, 701 (1957), or habitually associated with it, Becker v. Hampton Falls, 117 N.H. 437, 440, 374 A.2d 653, 655 (1977). See Ordi......
  • Hussey v. Town of Barrington
    • United States
    • New Hampshire Supreme Court
    • February 24, 1992
    ...cannot stem from reliance on an improperly issued variance, where the recipient knew of notice problems. See Dumais v. Somersworth, 101 N.H. 111, 115, 134 A.2d 700, 702 (1957); accord Eastlake Com. Council v. Roanoke Assoc., Inc., supra 82 Wash.2d at 483-84, 513 P.2d at 43. Such reliance is......
  • McKemy v. Baltimore County
    • United States
    • Court of Special Appeals of Maryland
    • April 14, 1978
    ...a residential zone denied where ordinance permitted variance only for parking of non-commercial vehicles. See also Dumais v. Somersworth, 101 N.H. 111, 134 A.2d 700 (1957); People v. Scrafano, 307 Mich. 655, 12 N.W.2d 325 (1943).11 State v. Gruber, 201 La. 1068, 10 So.2d 899 (1942).12 City ......
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