Piecuch v. City of Manchester
Decision Date | 31 January 1974 |
Docket Number | No. 6434,6434 |
Citation | 114 N.H. 8,314 A.2d 642 |
Parties | Anthony F. PIECUCH et al. v. CITY OF MANCHESTER et al. |
Court | New Hampshire Supreme Court |
Alexander J. Kalinski and Joseph F. McDowell, III, Manchester, for plaintiff.
J. Francis Roche, City Sol., Manchester, for the city of Manchester, filed no brief.
Eaton, Eaton, Ross, Moody & Solms and James E. Carroll, Manchester, for defendant Imperial Car Wash, Inc.
Plaintiffs brought this bill in equity against the city of Manchester and the Imperial Car Wash, Inc. They alleged that under the Manchester zoning ordinance, adopted January 5, 1965, the Manchester building superintendent improperly granted a permit to Imperial Car Wash, Inc. to erect and operate a car wash and that the zoning board of adjustment improperly refused to reverse his decision. Plaintiffs further alleged that the operation of a car wash by Imperial Car Wash, Inc. constitutes a nuisance and that its operation should be enjoined. Trial by the Court (Johnson, J.) resulted in a verdict for the defendants. The plaintiffs' exceptions were reserved and transferred by the trial court.
Plaintiffs Mr. and Mrs. Piecuch were residents and owners of multifamily residential units within the I-3 (Industrial) zone in which defendant Imperial Car Wash, Inc. operates. The other plaintiffs live in close proximity to the Imperial Car Wash, Inc., but in an R-3 (Residential) zone adjoining the I-3 (Industrial) zone.
Plaintiffs argue that the evidence required the trial court to find the car wash operation a nuisance. The court noted that the case involved the problems encountered when a residential zone abuts an industrial zone but found that the activities of the defendant Imperial Car Wash, Inc. did not constitute a nuisance. The determination of a nuisance involves '(t)he proper consideration of all relevant circumstances . . .(,) a balancing of the gravity of the harm to the plaintiff against the utility of the defendant's conduct, both to himself and to the community.' Robie v. Lillis, 112 N.H. 492, 496, 299 A.2d 155, 159 (1972). The evidence in the case judged by this standard did not mandate a finding by the trial court that the harm complained of was substantial or unreasonable under all the circumstances.
The plaintiffs questioned the sufficiency of the defendant Imperial's lot size to satisfy the ordinance both before the zoning board of adjustment and at the trial before the court. They excepted to the admission of certain evidence of the square footage offered by a surveyor from notes of another surveyor in his office who made the actual survey. Evidence that the lot size was adequate had already been introduced without objection through Mr. Tardiff, the building superintendent, and the finding by the board of adjustment that the lot size was sufficient was prima facie lawful and reasonable. The burden of proof was on the plaintiffs to prove the contrary and they failed to introduce such evidence. It follows that it is unnecessary to consider the admissibility of the questioned evidence since on the record with this evidence excluded the trial court would be required to find for the defendants on this issue. RSA 31:78; Carter v. Nashua, 113 N.H. --, 308 A.2d 847 (1973); Bois v. Manchester, 113 N.H. --, 306 A.2d 778 (1973).
Plaintiffs question the interpretation of the Manchester zoning ordinance by the building superintendent and the zoning board of adjustment. The car wash is located in an industrial zone designated in the ordinance as I-3. Among the permitted uses in this zone are 'Automotive Service Uses' listed as numbers 40, 41, 42, 43 and 44 of section 4.03. There is a wide variety of uses thus listed, including a gasoline service station and automobile and truck repair garage. Repair of heavy motorized equipment is excluded from permitted uses in zone I-3 under § 4.03-40 but permitted by § 4.03-39. The building superintendent, the zoning board of adjustment and the trial court interpreted the...
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