Hancock v. City of Concord, 6305
| Decision Date | 30 December 1971 |
| Docket Number | No. 6305,6305 |
| Citation | 111 N.H. 413,285 A.2d 791 |
| Parties | Amanda L. and Mary Louise HANCOCK v. CITY OF CONCORD. |
| Court | New Hampshire Supreme Court |
Orr & Reno and Ronald L. Snow, Concord, for plaintiffs.
Leonard J. Merski, City Solicitor (by brief and orally), for defendant.
The sole question in this case is whether the zoning board of adjustment could rule as a matter of law the operation of a real estate business in a general residence district is a 'customary home occupation' within the meaning of the Concord ordinance which permits as an accessory use 'customary home occupation such as hairdressing, laundering, preserving and home cooking . . ..' District regulations II, 45. The ordinance defines a 'home occupation' as '(a)n occupation conducted in a dwelling.' S. 28.48. Plaintiffs, neighbors of one Mackinaw, appealed from the decision of the board granting him a permit to operate a real estate office in his home located in a general residence district where such a business is prohibited unless it can be considered a 'customary home occupation.' The matter was submitted to the superior court on an agreed statement of facts and exhibits and was transferred here by Flynn, J., without ruling.
We hold that the permit was improperly granted. The occupation of a real estate agent has been held to be a business and not a profession. Hackett v. Gale, 104 N.H. 90, 179 A.2d 451 (1962). It is an occupation which may not readily be carried on within the confines of the home as can all those enumerated in the ordinance. As was the case in Perron v. Concord, 102 N.H. 32, 150 A.2d 403 (1959), involving a roofing business, the real estate business involves work outside the home showing the properties of others which are for sale. As such, it is not an occupation 'such as' those described in the ordinance. S. 45. We hold that the operation of a real estate business is not an accessory use which is customarily incident to the use of residential premises. Rather it is a business use which if intended to be permitted in a general residence district should be clearly provided for in the ordinance as was 'hairdressing.' This ordinance does not so provide.
The city relies upon the 'supplementary district regulations' of the ordinance pertaining to 'home occupations' (s. 28.21) and suggests that since these regulations would not be violated by the proposed use, the permit was properly granted. The supplementary regulations, however, do not provide...
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