Lee Sing Foo v. City of Manchester

• Decision Date: 26 April 1952
• Citation: 97 N.H. 346,88 A.2d 171
• Parties: LEE SING FOO et al. v. CITY OF MANCHESTER.
• Court: New Hampshire Supreme Court

Page 171

88 A.2d 171

97 N.H. 346

LEE SING FOO et al. v. CITY OF MANCHESTER.

Supreme Court of New Hampshire.

April 26, 1952.

John J. Broderick, McLane, Davis, Carleton & Graf and Stanley M. Brown, Manchester, for petitioners.

J. Francis Roche, City Sol., Manchester, for City of Manchester.

William H. Craig, Manchester, for intervenor.

DUNCAN, Justice.

This is a zoning appeal taken pursuant to R.L. c. 51, as amended by Laws 1949, c. 278. See Gelinas v. City of Portsmouth, 97 N.H. 248, 85 A.2d 896. The decision of the Board of Adjustment may be set aside upon appeal 'for errors of law'. Laws 1949, c. 278, § 2. The issue transferred turns upon interpretation of the Manchester ordinance. The ordinance, first adopted in 1927, like many ordinance, of the period, is essentially prohibitive in form. It establishes eight major types of districts, proceeding from the most restricted to the least. More restricted than apartment house districts are 'single residence A' 'single residence,' and 'general residence' districts. Only 'single-family detached dwellings' are permitted in the first. In the second, detached dwellings 'for not more than two families' are also permitted under specified conditions. Among other uses permitted in these districts is a 'Club, except clubs the chief activity of which is a service customarily carried on as a business and Clubs with more than five sleeping rooms.' Section 2(a)(2). In a 'general residence' district, in addition to uses permitted in single residence districts, two family dwellings, detached or semi-detached, are permitted, as well as use of a detached dwelling for 'not more than three families' under specified conditions. Section 3(a)(2). In each of the foregoing districts 'accessory use customarily incident to any of the [enumerated] uses' is allowed.

Section 4 of the ordinance contains the restrictions relating to 'apartment house districts,' although apartment house use is not therein mentioned by name. The first part of the section is as follows: 'Section 4. In an apartment house district--(a) Use: No building or premises shall be erected, altered or used except for one or more of the following uses: (1) Any use permitted in a general residence district; (2) Dwelling; (3) Club, except clubs the chief activity of which is a service customarily carried on as a business; (4) Hotel provided it conforms to all the requirements of this ordinance for a dwelling; (5) Telephone exchange office; (6) Accessory use customarily incident to any of the above uses.'

The provisions of this section contrast with a provision of Section 5, relating to 'local business districts,' where permitted uses include '(1) Any use permitted in an apartment house district; (2) Hotel; * * *.'

The word 'hotel' is nowhere defined in the ordinance, but by section 11 words not defined are to be construed 'as defined or used in the Building Code.' This code defines 'hotel' as follows: 'Any building or part thereof designed to be used for supplying shelter and food or shelter to residents or guests and having a public dining room, cafe, or office, or either.' Section 54.

If this definition is applied to section 5 of the zoning ordinance, it is plain that the use proposed by the petitioners would be permitted in a local business district. However the provisions of section 4 with respect to hotel use in apartment house districts, limit the definition by the words 'provided it conforms to all the requirements of this ordinance for a dwelling.' It is the effect of this proviso which determines the petitioners' rights. The word 'dwelling' is defined by the ordinance: 'Any house or building, or portion thereof, which is occupied in whole or in part as the home or residence of one or more persons, either permanently or transiently, excluding hotels.' Section 11. Thus the use permitted by clause (2) of section 4(a): 'Dwelling,' was not intended to include hotel use, and the uses are in general distinct.

It is reasonably plain that the numbered clauses to section 4 are descriptive of permitted uses. Subsection (a) deals with restrictions relating to 'Use,' and permitted uses are expressly enumerated after the words 'the following uses.' Clause (4) is therefore to be interpreted as if it read: '(4) Hotel use, provided it (the use) conforms to all the requirements of the ordinance for a dwelling.'

The finding of the Trial Court establishes that the 'building' meets all the restrictive requirements of the ordinance relating to dwellings. Since those require ments,...