Lawlor v. Town of Salem
| Decision Date | 27 February 1976 |
| Docket Number | No. 6699,6699 |
| Citation | 352 A.2d 721,116 N.H. 61 |
| Parties | Owen W. LAWLOR v. TOWN OF SALEM. |
| Court | New Hampshire Supreme Court |
John B. Ford, Salem, by brief and orally, for plaintiff.
Soule & Leslie, Salem (Lewis F. Soule, Salem, orally), for defendant.
Appeal of a decision of the Salem Board of Adjustment, nullifying a permit issued by the Salem building inspector, which allowed plaintiff to place a house trailer on a certain lot of land in that town. The case was submitted to a Master (Leonard C. Hardwick, Esq.) on an agreed statement of facts. His recommendation that the appeal be dismissed was accepted by the Trial Court (Morris, J.) who reserved and transferred plaintiff's exceptions. The sole issue presented is whether there has been an abandonment of a nonconforming use to place a house trailer on the premises in question.
The case was tried on an agreed statement of facts which are as follows: Prior to 1961, one Cousins owned and inhabited a house trailer located on certain property on Bus Road in the town of Salem. In 1961, the town of Salem adopted a zoning ordinance which made the area encompassing the property on which the trailer was situated a residential area, excluding mobile homes. However, any prior nonconforming uses, such as Cousins' trailer, were allowed to continue. Subsequent to 1961, Cousins mortgaged the trailer and the premises to the Salem Cooperative Bank, and some time in 1964 or 1965, he left the premises. The trailer remained vacant from that time until it was removed by the town in 1969, after it had acquired the deed to the premises pursuant to a tax collector's sale. However, the town failed to serve notice of the sale on the mortgagee Bank. At the time of its removal, the trailer had become vandalized and uninhabitable.
The bank subsequently foreclosed its mortgage and, on March 23, 1971, sold the premises to the plaintiff Lawlor, who was aware of all the foregoing. Mr. Lawlor applied for and obtained a building permit from the building inspector, allowing him to place a trailer upon the land. Two abutters appealed that decision to the board of adjustment, which, on June 1, 1971, after a hearing, granted the appeal nullifying the permit. Mr. Lawlor requested a rehearing, which was denied, and he then appealed to the superior court. The case was tried before a Master (Leonard C. Hardwick, Esq.), who upheld the decision of the zoning board of adjustment, finding that plaintiff's predecessors in title had abandoned their right to continue the maintenance of that trailer in a residential zone as a prior nonconforming use. His report was approved by the Superior Court (Morris, J.), and plaintiff duly excepted and entered this appeal.
Plaintiff initially contended that the failure of the zoning board of adjustment to act on his petition for rehearing within ten days resulted in the reinstatement of the...
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...to properly apply it. McKenzie asserted that the ZBA erred by relying upon the abandonment test established in Lawlor v. Town of Salem, 116 N.H. 61, 352 A.2d 721 (1976), which considers whether the property owner intended to abandon the nonconforming use. McKenzie also argued that the ZBA a......
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