Hermer v. City of Dover
| Court | Supreme Court of New Hampshire |
| Writing for the Court | KENISON |
| Citation | 106 N.H. 534,215 A.2d 693 |
| Parties | Virginia R. HERMER v. CITY OF DOVER. |
| Decision Date | 30 December 1965 |
Page 693
v.
CITY OF DOVER.
Decided Dec. 30, 1965.
Fisher, Parsons, Moran & Temple, Dover, for plaintiff, filed no brief.
Page 694
T. Casey Moher, Dover, for defendant, filed no brief.
KENISON, Chief Justice.
This case presents the general question of whether the defendant municipality is liable for damages allegedly[106 N.H. 536] caused the plaintiff because of mistake, negligence or misconduct of the city building inspector in administering a zoning ordinance. Annot. 6 A.L.R.2d 960, 965-975; 4 McQuillin, Municipal Corporations, s. 12.208, p. 141 (1949).
'A person is charged with knowledge of the zoning restrictions placed on his property, and thus he obtains no vested rights by a building permit issued under a mistake of fact or in violation of law.' Rhyne, Municipal Law, s. 32-25, pp. 891-892 (1957). The rule which prevents revocation of a valid permit following amendment of an ordinance where the appellant has expended substantial sums of money in reliance upon the permit (Winn. v. Lamoy Realty Corporation, 100 N.H. 280, 124 A.2d 211) does not extend to cases where the issuing official exceeded his authority by issuing a permit in violation of the ordinance in effect at the time of its issuance. Dumais v. Somersworth, 101 N.H. 111, 115, 134 A.2d 700. In such a case the permit '* * * could confer no greater rights upon the plaintiff than did the ordinance itself.' Dumais v. Somersworth, supra; Osborn v. Darien, 119 Conn. 182, 175 A. 578. The illegal permit issued to the plaintiff does not supersede the ordinance which prohibited the conversion of the property which the permit purported to allow. Arsenault v. Keene, 104 N.H. 356, 187 A.2d 60; 2 Ketzenbaum, The Law of Zoning 1159 (2d ed. 1955). Consequently it has been decided that the wrongful issuance or the wrongful revocation of a permit does not subject a municipality to liability for damages even if the municipal official did not act in good faith. 2 Rathkopf, The Law of Zoning and Planning, c. 57, s. 17, p. 57-49 (3d ed. 1964).
One of the questions transferred without ruling is whether the defendant municipality has a valid defense by reason of governmental or municipal immunity for tort. Such immunity has existed heretofore in this jurisdiction. Reynolds v. City of Nashua, 93 N.H. 28, 35 A.2d 194; Shea v. Portsmouth, 98 N.H. 22, 94 A.2d 902; Opinion of the Justices, 101 N.H. 546...
To continue reading
Request your trial
-
Haslund v. City of Seattle, 43675
...This is so because municipal immunity has only very recently been partially abrogated in many jurisdictions. See, e.g., Hermer v. Dover, 106 N.H. 534, 215 A.2d 693 (1965); Superior Uptown, Inc. v. Cleveland, 39 Ohio St.2d 36, 313 N.E.2d 820 (1974); Irvine v. Montgomery County, 239 Md. 113, ......
-
Cloutier v. Town of Epping, s. 82-1800
...if we assume that plaintiffs acquired a property right in the sewer connection permit once it was issued, but see Hermer v. City of Dover, 106 N.H. 534, 215 A.2d 693 (1965) (builder has no vested rights in a permit issued under mistake of law or in violation of law), and thus a right to som......
-
Sousa v. State, s. 6923
...doctrine was on [115 N.H. 343] the wane and should be abolished in this State by legislation or judicial decision. See Hermer v. Dover, 106 N.H. 534, 536, 215 A.2d 693, 694 (1965). There is no such history with regard to state immunity from tort actions. Krzysztalowski v. Fortin, 108 N.H. 1......
-
Hurley v. Town of Hudson, 6307
...or judicial nature of the activity. Elgin v. District of Columbia, 119 U.S.App.D.C. 116, 337 F.2d 152 (1964); see Hermer v. Dover, 106 N.H. 534, 215 A.2d 693 (1965). The well-considered reluctance in the past of some courts including our own to abolish governmental immunity in toto has spru......
-
Haslund v. City of Seattle, 43675
...This is so because municipal immunity has only very recently been partially abrogated in many jurisdictions. See, e.g., Hermer v. Dover, 106 N.H. 534, 215 A.2d 693 (1965); Superior Uptown, Inc. v. Cleveland, 39 Ohio St.2d 36, 313 N.E.2d 820 (1974); Irvine v. Montgomery County, 239 Md. 113, ......
-
Cloutier v. Town of Epping, s. 82-1800
...if we assume that plaintiffs acquired a property right in the sewer connection permit once it was issued, but see Hermer v. City of Dover, 106 N.H. 534, 215 A.2d 693 (1965) (builder has no vested rights in a permit issued under mistake of law or in violation of law), and thus a right to som......
-
Sousa v. State, s. 6923
...doctrine was on [115 N.H. 343] the wane and should be abolished in this State by legislation or judicial decision. See Hermer v. Dover, 106 N.H. 534, 536, 215 A.2d 693, 694 (1965). There is no such history with regard to state immunity from tort actions. Krzysztalowski v. Fortin, 108 N.H. 1......
-
Hurley v. Town of Hudson, 6307
...or judicial nature of the activity. Elgin v. District of Columbia, 119 U.S.App.D.C. 116, 337 F.2d 152 (1964); see Hermer v. Dover, 106 N.H. 534, 215 A.2d 693 (1965). The well-considered reluctance in the past of some courts including our own to abolish governmental immunity in toto has spru......