St. Onge v. City Of Concord.

• Decision Date: 05 January 1949
• Citation: 63 A.2d 221
• Court: New Hampshire Supreme Court
• Parties: ST. ONGE v. CITY OF CONCORD.

63 A.2d 221

ST. ONGE

v.CITY OF CONCORD.

Supreme Court of New Hampshire.

Oct. 5, 1948.

As Modified on Rehearing Jan. 5, 1949.

Transferred from Superior Court, Merrimack County; Wescott, Judge.

Proceeding by Roland St. Onge against the City of Concord to review a decision of the Zoning Board of the City of Concord denying plaintiff's petition to convert his four-apartment building into six apartments. The court entered a decree setting aside the board's decision and granting relief requested by plaintiff, and the case is transferred on defendant's exceptions.

Exceptions overruled.

Appeal from a decision of the Zoning Board of Adjustment of the City of Concord, denying the plaintiff's petition to convert his four-apartment building situated at 68 School Street into six apartments. The Zoning Ordinance of the city did not authorize the issuance of a permit for the requested conversion, and the plaintiff sought a variance from the terms of the Ordinance. Trial by the Court (Wescott, J.) who made certain findings of fact and entered a decree setting aside the decision of the Board and granting the relief requested. Transferred upon defendant's exceptions to the findings of the Court; to the denial of its requests for findings of fact and rulings of law, and to the denial of its motion that the appeal be dismissed.

The building in question is a large house of frame construction, containing two stories and an attic. Attached to its northerly end and incorporated into the building itself is a barn. Part of the roof of the main house is part of the roof of the barn. The house was constructed about seventy years ago and is located at the corner of School and Rumford Streets on a tract of land containing 7,670 square feet. It was purchased by the plaintiff in 1944 at a cost of $4,200, and since that time he has made permanent improvements in the building at a cost of $6,300, so that his total investment is about $10,500. From the four apartments now in the house, the plaintiff receives an annual gross income of $2,400. The operating expenses and charges of maintenance come to $2,540 per year. The building contains a large amount of unused space which returns no income but is costly to maintain. The plaintiff has mortgaged the property to a bank in the sum of $8,000. He finds it impossible to borrow more money on the security of the property unless the revenue can be increased, and unless he is able to get additional income from the property he will be forced to sell it.

DUNCAN, J., dissenting.

Frederic K. Upton and Robert W. Upton, both of Concord, for plaintiff.

Gordon S. Lord, City Sol., of Concord (Elwin L. Page, of Concord on the brief), for defendant.

BRANCH, Chief Justice.

The plaintiff's property is located in a ‘general residence district’, in regard to which the Ordinance provides as follows: ‘In a general residence district no building or premises shall be erected, altered, or used for any purpose except 1, Any use permitted in a single residence district; 2, Detached two-family dwelling, or pair of semi-detached one-family dwellings.’

Section 10(c) of the Ordinance contains the following exception: ‘Nothing herein shall prevent any dwelling in a general residence or agricultural district existing prior to December 13, 1930, from being altered to provide for and being used for more than two but not more than four families, provided it is not enlarged in volume and meets the requirements as to volume and unbuilt-upon yard space listed in the following table.’ (Table omitted.)

No claim is made by the plaintiff that he comes within the exception of section 10(c). He seeks, rather, a variance from the terms of the Ordinance under Section 62, Paragraph III of the Zoning Statute, R.L. c. 51, § 62, 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.’

It is argued by the defendant, however, that Section 10(c) of the Ordinance limits the power of the Board of Adjustment not only in granting the exception specified therein, but in granting variances as well. The argument is as follows: ‘Its interpretation, as we see it, is that the Board of Adjustment are told, first, the general spirit, then given some leeway, and finally told ‘Thus far you may go and no farther.’' Given this interpretation, the Ordinance would be in conflict with the provisions of the statute above quoted which puts no limit upon the power of the Board to grant variances. The statute indicates no purpose to confine this power to ‘the general terms of the Ordinance excluding special exceptions,’ as argued by the defendant. In short, the argument that a land owner cannot obtain as a variance the same or greater relief than that granted as an exception in a proper case is rejected.

The plaintiff bases his claim to relief upon the ground that the literal enforcement of the terms of the Ordinance will cause him unnecessary hardship, whereas the granting of his petition will not be contrary to the public interest.

We have been earnestly urged to define what is meant by unnecessary hardship. It is well settled that financial hardship in and of itself does not warrant a variance. Devaney v. Board of Zoning Appeals, 132 Conn. 537, 543, 45 A.2d 828; Real Properties v. Board of Appeals, 319 Mass. 180, 65 N.E.2d 199, 168 A.L.R. 8. The public interest and the spirit of the ordinance may be factors of controlling importance. The requisite hardship may be said to result if a restriction upon use, when applied to a particular property, becomes arbitrary, confiscatory, or unduly oppressive because of conditions of the property distinguishing it from other properties similarly restricted. Whether the hardship is ‘unnecessary’ may be a more difficult question. In the recent case of Fortuna v. Zoning Board of Adjustment, 95 N.H. 211, 60 A.2d 133, it was pointed out that any hardship suffered by the defendant as a result of the interference with its right to use its property, without commensurate public advantage, is an unnecessary hardship. It may, therefore, be stated that ‘unnecessary’ as used in this connection, means, ‘not required to give full effect to the purpose of the Ordinance.’ In the present case, no private rights other than those of the plaintiff are claimed to be endangered by the proposed variance. In fact, three of the plaintiff's close neighbors appeared as witnesses and testified that they did not feel that the addition of two apartments to the plaintiff's property would depreciate the value of their real estate, but, on the contrary, would tend to increase the property values in the neighborhood. The only public right asserted by the defendant to be endangered is the right to have the restricted character of a general residence district maintained. As to this, the Trial Court has found that ‘The non-conforming use will not alter the essential character of the neighborhood and the spirit of the Ordinance will be observed and substantial justice done by allowing the variance.’ If this finding meant only that the essential character of a large district will not be altered by remodelling one house, the finding, although obviously correct, would be without significance. When considered in the light of the evidence, however, and particularly when read in connection with another finding of the Court to the effect that ‘although the area where the plaintiff's property is located is designated a ‘general residence’ district, it is predominated by multiple family dwellings and apartment houses,' it is plain that it means something more than that a single house cannot determine the character of a large district. It indicates, rather, that the character of the district is of such a nature that the proposed alteration of the plaintiff's house will be entirely consistent with the conditions already existing in the district so that the public interest in the restricted character of the district will not be affected thereby. This finding is fully supported by the testimony of the plaintiff and his witnesses. The word ‘predominated’ in the last quoted finding of the Court is understood to mean ‘characterized.’ Since neither public nor private interests will be endangered by the proposed variance, the finding that a denial of the plaintiff's petition imposes upon him an unnecessary hardship, is correct.

It may well be argued that the administration of a zoning ordinance is a local matter and can better be done by the local ...