Lachapelle v. Town of Goffstown

• Decision Date: 13 January 1967
• Citation: 22 A.L.R.3d 1128,225 A.2d 624,107 N.H. 485
• Parties: , 22 A.L.R.3d 1128 Clarence L. LACHAPELLE v. TOWN OF GOFFSTOWN.
• Court: New Hampshire Supreme Court

Page 624

225 A.2d 624

107 N.H. 485, 22 A.L.R.3d 1128

Clarence L. LACHAPELLE v. TOWN OF GOFFSTOWN.

Supreme Court of New Hampshire.

Argued Sept. 7, 1966.

Decided Jan. 13, 1967.

King, Nixon & Christy, Manchester (Robert Christy, Manchester, orally), for the plaintiff.

Raymond A. Cloutier, Manchester (by brief and orally), for the defendant.

KENISON, Chief Justice.

In the beginning zoning 'sought to safeguard the future, in the expectation that time will repair the mistakes of the past.' Basset, Zoning 105 (1940). Experience has demonstrated that this expectation and prophecy has not been fulfilled and that something more than time and hope is required to eliminate or restrict nonconforming uses. Note, 9 U. of Chi.L.Rev. 477, 479 (1942). 'One of the outstanding and most complex problems besetting municipalities as they began a systematic program of city planning through the device of zoning ordinances involved the disposition of nonconforming uses of property.' 2 Yokley, Zoning Law and Practice s. 16-1 (3d ed. 1965). 'It has become apparent that if nonconforming uses are to be dealt with effectively it must be under the law of zoning, a law not limited in its controls to harmful and noxious uses in the common law sense.' Grant v. Mayor and City Council of Baltimore, 212 Md. 301, 308, 129 A.2d 363, 366; Norton, Elimination of Incompatible Uses and Structures, 20 Law and Contemp.Prob. 305, 308 (1955). 'Non-conformities may lead to reduced property values, a physical deterioration of neighborhoods, and a general reduction in the desirability of an entire area as a residential section.' Katarincic, Elimination of Non-conforming Uses, Buildings, and Structures by Amortization, 2 Duquesne L.Rev. 1, 4 (1963).

There is a conflict in the decisions on the power of a municipality to terminate a nonconforming use after a definite period of time stated in the zoning ordinance. Annot. 42 A.L.R.2d 1146; see the divided opinion in Harbison v. City of Buffalo, 4 N.Y.2d 553, 176 N.Y.S.2d 598, 152 N.E.2d 42; Note, The Abatement of Pre-Existing Nonconforming Uses Under Zoning Laws: Amortization, 57 Nw.U.L.Rev. 323 (1962); Note, Termination of Nonconforming Uses-Harbison to the Present, 14 Syracuse L.Rev. 62 (1962). Nevertheless 'the greater weight of aughority, both early and late, sustains the right to bring the nonconforming use to its predestined terminal point, provided, of course, the termination provisions are reasonable as to time and directed toward some reasonable aspect of land use regulation under properly delegated police power.' 2 Yokley, Zoning Law and Practice, s. 16-14, p. 282 (3d ed. 1965). Hillman, Local Government in 1964 Annual Survey of American Law 627, 636. The 'trend of decisions is clearly in favor of approving the amortization theory as a tool necessary for orderly community development. * * * There is a clear, though as yet not decisive, movement to approve reasonable legislation requiring the elimination of all non-conformities. * * * The courts are slowly, but persistently, upholding amortization provisions in comprehensive zoning ordinances.' Katarincic, Elimination of Non-Conforming Uses, Buildings, and Structures by Amortization, 2 Duquesne L.Rev. 1, 38, 43 (1963).

Decisions approving the termination of nonconforming uses after a definite period of time are substantial. Grant v. Mayor and City Council of Baltimore, 212 Md. 301, 129 A.2d 363; City of Los Angeles v. Gage, 127 Cal.App.2d 442, 274 P.2d 34; Standard Oil Co. v. City of Tallahassee, 183 F.2d 410 (5th Cir. 1950); State ex rel. Dema Realty Co. v. McDonald, 168 La. 172, 121 So. 613; State ex rel. Dema Realty Co. v. Jacoby, 168 La. 752, 123 So. 314; Wolf v. City of Omaha, 177 Neb. 545, 129 N.W.2d 501. In City of Seattle v. Martin, 54 Wash.2d 541, 342 P.2d 602, a one-year period for the termination of a use not situated in a building was approved. In Spurgeon v. Board of Comm'rs of Shawnee County, 181 Kan. 1008, 317 P.2d 798, a two-year period for the removal of auto-wrecking yards and junk yards was upheld. The recent case of Eutaw Enterprises, Inc. v. City of Baltimore, 241 Md. 686, 217 A.2d 348 (1966) involved an 18-month termination provision in a zoning ordinance applicable to a check-cashing agency in a residential district as a nonconforming use. The provision was held to be valid and reasonable as applied to the plaintiff in view of the additional factor that the plaintiff continued his check-cashing activities during the litigation period of some five years. See also, Rhyne, Municipal Law, pp. 922-923 (1957); 2 Metzenbaum, Zoning 1256 (1966 supp.); 1 Antieau, Municipal Corporations, s. 724 (1966); 6 Powell, Real Property, s. 869, pp. 120-121 (1965); Bair and Bartley, A Model Zoning Ordinance 35 (3d ed. 1966). The facts in McKinney v. Riley, 105 N.H. 249, 253, 197 A.2d 218, 222 are distinguishable from the present case because the motor vehicle junk yard in that case was both a nuisance and an expanding nonconforming use. However the following statement in the McKinney case is pertinent to the problem in this case: 'The validity of provisions requiring the termination of nonconforming uses within a specified period of time has been upheld as a proper exercise of the police power, provided at least that on balance, the public benefit outweighs the private injury, and the time allowed is reasonable.'

The plaintiff relies on City of Akron v. Chapman, 160 Ohio St. 382, 116 N.E.2d 697, 42 A.L.R.2d 1140 and Hoffman v. Kinealy, (Mo.) 389 S.W.2d 745, which held that the abatement of nonconforming uses by a time limitation was unconstitutional. Both of these cases have not escaped criticism. 67 Harv.L.Rev....