Gelinas v. City of Portsmouth

• Court: New Hampshire Supreme Court
• Writing for the Court: BLANDIN
• Citation: Gelinas v. City of Portsmouth, 97 N.H. 248, 85 A.2d 896 (N.H. 1952)
• Decision Date: 02 January 1952
• Parties: GELINAS et al. v. CITY OF PORTSMOUTH.

Page 896

85 A.2d 896

97 N.H. 248

GELINAS et al. v. CITY OF PORTSMOUTH.

Supreme Court of New Hampshire.

Jan. 2, 1952.

Rehearing Denied Feb. 5, 1952.

Waldron, Boynton & Waldron, Portsmouth (Wyman P. Boynton, Portsmouth, and Jack E. Tracy, Manchester, orally) for plaintiffs.

Arthur J. Reinhart, Portsmouth, for city of Portsmouth filed no brief.

William F. Harrington, Jr., Portsmouth, by brief and orally, for Francis K. Leith.

BLANDIN, Justice.

The board of adjustment of the city of Portsmouth has granted a variance upon appeal to it from an adverse decision by the building inspector and the Superior court has dismissed the appeal from the board's decision. The matter being properly before us, Stone v. Cray, 89 N.H. 483, 486-487, 200 A. 517; Sullivan v. Anglo-American Trust Company, 89 N.H. 112, 193 A. 225, the basic question is whether the court erred as a matter of law in so doing. We do not believe that it did for it seems to us that reasonable man upon the evidence here could have reached the same conclusion as did the Trial Court. Fortuna v. Zoning Board of Manchester, 95 N.H. 211, 213, 60 A.2d 133. C. 278 of Laws 1949, amending R.L. c. 51, materially changes the procedure on appeals from the zoning board. There is now no trial de novo by the court on such appeals. 'Upon the hearing the burden of proof shall be upon the party seeking to set aside any order or decision of the board * * * to show that the same is unreasonable or unlawful, and all findings of the board * * * upon all questions of fact properly before it shall be deemed to be prima facie lawful and reasonable; and the order or decision appealed from shall not be set aside or vacated, except for errors of law, unless the court is persuaded by the balance of probabilities, on the evidence before it, that said order or decision is unjust or unreasonable.' Id., § 65-c. (Emphasis ours.)

With reference to the board's findings, there is no requirement in the Laws, R.L. c. 51, §§ 50-71, nor was there any request that specific findings be made. Cf. Broderick v. Hunt, 77 N.H. 139, 89 A. 302. The entire matter was reviewed by the Superior Court and we do not believe he abused his discretion in refusing to recommit the case to the board for further findings or erred as a matter of law in holding that there was evidence to support the findings which the board made.

In order to support a variance, it must be found that: (1) No diminution in value of surrounding properties would be suffered. (2) Granting the permit would be of benefit to the public interest. (3) Denial of the permit would result in unnecessary hardship to the owner seeking it. (4) By granting the permit substantial justice will be done. (5) The use must not be contrary to the spirit of the ordinance. Fortuna v. Zoning Board of Manchester, 95 N.H. 211, 60 A.2d 133. If these requirements can be met the case is one for a variance, Fortuna v. Zoning Board of Manchester, supra, and not one of spot zoning. Cf. Edgewood Civic Club v. Blaisdell, 95 N.H. 244, 61 A.2d 517.

An examination of the record and exhibits discloses evidence to support the following findings: The lot in question is located to the rear of houses in the restricted zone and borders on the new four lane super road known as the Maine-New Hampshire Interstate Bridge Authority Highway. It is a low, swampy area, something in the nature of a dump with vacant land for several hundred feet on either side and the proposed station will be some distance to the rear of the houses previously mentioned. It is useless in its present condition except as a breeding place for mosquitoes, and a depository according to one witness for 'swill, orange skins, banana skins' and the like. It is unusable now even as a garden or field. In fact, owing to its condition and location on this heavily traveled way, it is 'absolutely valueless unless used for a commercial purpose.' Commercial establishments are now following along the highway, the nearest one being some 350 to 400 feet away from the Leith lot. A residence was moved in order to make way for the erection of this filling station. The area surrounding the Leith lot is similar to that where this filling station is located.

It seems to be conceded that a wire fence which will be built about the land will do away with any hazard the proposed station might create for children at the Franklin School located approximately 100 yards north and somewhat easterly across the super highway from the Leith property. Also the proposed station will have a tendency to slow down traffic about that point which will be in the interest of public safety. The improving of this presently unsightly and useless property will tend to increase rather than diminish the value of surrounding property and the service to customers will also be in the public interest. It is of some significance that at the hearing before the court only two persons, both of whom purchased their property after...