Mater v. City of Dover
| Decision Date | 03 April 1951 |
| Citation | 79 A.2d 844,97 N.H. 13 |
| Parties | MATER v. CITY OF DOVER. |
| Court | New Hampshire Supreme Court |
Charles F. Hartnett, Dover, for plaintiff.
Donald R. Bryant, City Sol., Dover, for defendant.
The findings of the Court are amply supported and fully justified by the evidence. Plourde v. Zoning Board, etc., of City of Nashua, 93 N.H. 376, 378, 42 A.2d 736; Fortuna v. Zoning Board of Manchester, 95 N.H. 211, 213, 60 A.2d 133. The fact that other real estate in the immediate vicinity will not be lessened in value by the allowance of the variance, that no substantial physical changes in the property are necessary or contemplated, that changes were commenced in ignorance of the ordinance, that the denial of the variance will impose a financial hardship on the plaintiff, do not as he contends entitle him as a matter of law to the relief which he seeks. Stone v. Cray, 89 N.H. 483, 488, 200 A. 517; St. Onge v. City of Concord, 95 N.H. 306, 308, 63 A.2d 221. They are merely factors to be considered by the Court in determining on the evidence presented if the plaintiff is entitled to relief under the provisions of Section VI, D, 4c of the zoning statute, R.L. c. 51, § 62; subd. III, by which the board of adjustment is given power 'To authorize upon appeal in specific cases such variance from the terms of the ordinance as will not be contrary to the public interest, where, owing to special conditions, a literal enforcement of the provisions of the ordinance will result in unnecessary hardship, and so that the spirit of the ordinance shall be observed and substantial justice done.' The Court found that plaintiff was not so entitled and '[i]t certainly cannot be said that no reasonable person could have reached such a conclusion.' Plourde v. Zoning Board, etc., of City of Nashua, supra [93 N.H. 376, 42 A.2d 737].
Plaintiff's contention that the Trial Court erred in not treating the trial as one de novo, Vogel v. Board, etc., of City of Manchester, 92 N.H. 195, 27 A.2d 105, is not supported by the record. The Court specifically ruled in denying plaintiff's motion to that effect made after trial, that he did not act under the misapprehension that the plaintiff was not entitled to a trial de novo. The fact that the Court heard all the witnesses presented by both sides and made findings and rulings on the evidence so presented also refutes plaintiff's contention.
It is true that the Court inquired of the secretary of the board of adjustment as to the basis for their denial of the variance. He also stated in answer to an objection made by plaintiff's counsel to his so inquiring that it is and he did so rule in his decree. Even though it can be argued that the Court's language and his ruling in that respect may not be technically correct, it amounts to no more, however, than a statement that he was seeking to determine on all the evidence whether or not a variance was warranted under the provisions of the ordinance, that he concluded it was not and that the board having reached the same result acted properly. Sundeen v. Rogers, 83 N.H. 253, 254, 141 A. 142, 57 A.L.R. 950.
Plaintiff's contention that the Trial Court erred in failing to consider conditions or restrictions that could have been attached to the allowance of the variance requested is without merit. The Court could properly rule on the evidence that the plaintiff failed to prove that he was entitled to any variance from the terms of the ordinance. Scott v. Davis, 94 N.H. 35, 37, 45 A.2d 654. See Note 168 A.L.R. 113. The question of...
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...and conditions, authority to determine the public need and the means of meeting it in cases like the present one. Mater v. Dover, 97 N.H. 13, 14, 15, 79 A.2d 844, 846 (1951). It is only when the board has acted illegally, unjustly, or unreasonably that the courts can grant relief on appeal.......
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