Fortuna v. Zoning Bd. Of Adjustment Of City Of Manchester

• Decision Date: 28 July 1948
• Citation: 60 A.2d 133
• Court: New Hampshire Supreme Court
• Parties: FORTUNA v. ZONING BOARD OF ADJUSTMENT OF CITY OF MANCHESTER et al.

60 A.2d 133

FORTUNA

v.ZONING BOARD OF ADJUSTMENT OF CITY OF MANCHESTER et al.

Supreme Court of New Hampshire.

July 6, 1948.

Rehearing Denied July 28, 1948.

Exceptions from Superior Court, Hillsborough County; Lampron, Judge.

Bill in equity by Elizabeth Fortuna to review a decision of the Zoning Board of Adjustment of the City of Manchester granting a building permit to the Manchester Buick Company. Decree of dismissal, and plaintiff brings exceptions.

Exceptions overruled.

Bill in equity wherein the plaintiff appeals from a decision of the Zoning Board of Adjustment of the City of Manchester, granting the Manchester Buick Company a permit to build an addition to its present garage building located on Hanover Street. Hearing before a Master, who found the facts and recommended that the decision of the Board of Adjustment be affirmed and the plaintiff's petition dismissed. The Superior Court, Lampron, J., made a decree in accordance with the recommendations of the Master. The plaintiff seasonably excepted to said decree on the ground that it is against the law, the evidence and the weight of the evidence.

DUNCAN, J., dissenting.

Sullivan & Wynot and Edw. D. Wynot, all of Manchester, for plaintiff.

Warren, Wilson, Wiggin & Sundeen, and J. Walker Wiggin, all of Manchester, for Manchester Buick Co.

Henry P. Sullivan, of Manchester, for Zoning Board.

BRANCH, Chief Justice.

The defendant, Manchester Buick Company, owns a garage on the northerly side of Hanover Street in said Manchester, to which it proposes to build an addition. Its building and automobile business were in existence prior to the passage of the Manchester Zoning Ordinance in 1927. The building is located in an apartment house district. Section 4 of the Zoning Ordinance of the City of Manchester provides as follows: ‘Section 4. In an Apartment House District-No building or premises shall be erected, altered or used except for one or more of the following uses.’ Then follows a list of permitted uses which does not include garages. Section 9 of the ordinance also provides that ‘any lawful use of a building or premises or part thereof existing at the time of the adoption of this ordinance may be continued although such use does not conform with the provisions hereof.’ Section 14 of the ordinance gives the Board of Adjustment power ‘to permit the erection of additional building or the enlargement or alteration of existing buildings on the same or an adjacent parcel of land each in the same single or joint ownership of record at the time it is placed in a district, for an existing trade, business, industry or other use prohibited in such district.’ The land upon which the defendant proposes to build the addition in question was not in the same ownership of record at the time it was placed in the district.

The plaintiff owns two apartment houses on Amherst Street. The rear of this property is located across a back street opposite a portion of the defendant's present building.

The main position of the plaintiff is that ‘the Board of Adjustment has no power under the zoning statute or local ordinance to grant the order appealed from and such order is, therefore, void as a matter of law.’ The answer to this argument is to be found in the language of the statute and the findings of the Master.

The statute confers upon the Board authority ‘to authorize upon appeal in specific cases such variance from the terms of the ordinance as will not be contrary to the public interest, where, owing to special conditions, a literal enforcement of the provisions of the ordinance will result in unnecessary hardship, and so that the spirit of the ordinance shall be observed and substantial justice done.’ R.L. c. 51, § 62, III; Vogel v. Board of Adjustment of Manchester, 92 N.H. 195, 27 A.2d 105.

The Master found that (1) ‘the appellant will not suffer any definite findable diminution in the value of her property as a result of this addition to appellee's building and business; (2) that the granting of the permit by the Board of Adjustment was not contrary to the public interest and was, in fact, beneficial to the public interest in that the present traffic...