Stone v. Cray

• Decision Date: 21 June 1938
• Docket Number: No. 2980.,2980.
• Parties: STONE et al. v. CRAY et al.
• Court: New Hampshire Supreme Court

200 A. 517

STONE et al.

v. CRAY et al.

No. 2980.

Supreme Court of New Hampshire. Coos.

June 21, 1938.

[Copyrighted material omitted.]

Transferred from Superior Court, Coos County; Johnston, Judge.

Suit by George E. Stone and others, selectmen, against Eugene P. Cray and others to enjoin erection of a filling station in violation of zoning ordinance of the town of Lancaster, wherein an order for permanent injunction was made, and defendants excepted. Transferred from trial term.

Decree affirmed upon amendment.

Bill, to enjoin the erection of a gasolene filling station in violation of a zoning ordinance of Lancaster. After hearing on the merits a supplemental bill was allowed to be filed, and thereafter and on further hearing an order for a permanent injunction was made. The defendants excepted to rulings and denials of requested rulings, to the granting of the motion for leave to file the supplemental bill, and to the refusal to make a special finding. The opinion adequately specifies the exceptions and states the facts material in connection with them.

Bernard Jacobs, of Lancaster, for plaintiffs. Murchie, Murchie & Blandin, of Concord (Alexander Murchie, of Concord, orally), for defendants.

ALLEN, Chief Justice.

>

The case should be amended by substituting for the plaintiffs the Town of Lancaster. The selectmen are not entitled to relief. Although they are the proper officials to institute the proceeding (P.L., c. 42, § 67), it should be in the name of the town. It is their matter for action only in behalf of the town as the real party seeking the injunction.

The order allowing the supplemental bill to be filed was not erroneous. It set forth a vote of the town amending the town's original zoning ordinance and passed at a date subsequent to the first hearing on the bill. Pleadings to present new matter in the proceeding were proper. "The more general and approved practice is, * * * that if the defendant [the plaintiff in the equity suit] has discovered any new matter of which he would avail himself, or when any event happens subsequent to filing an original bill, which gives a new interest or right to a party, it should be set out in a supplemental bill." Gove v. Lyford, 44 N.H. 525, 528. The requirement that such a bill may be filed only on motion (Ashuelot Railroad v. Cheshire Railroad, 59 N.H. 409, 410) was here observed, and the finding of sufficient cause therefor seems demanded. In Clark v. Society, 46 N.H. 272, cited by the defendants, it is conceded (page 274) that if discretion is "cautiously exercised", matter which "substantially makes a new case" when "the cause has come to a hearing" may be pleaded. The right to an injunction here depends upon the facts existing at the time of final hearing, and the first hearing on the merits was not so effective a bar to the reopening of the case that, to accomplish justice, the bar might not be removed. It follows that the merits of the case are to be determined as though the original and supplemental bills constituted a single pleading.

The defendants' attack on the town's zoning ordinance is understood to rely upon two broad grounds. One is that the act authorizing local ordinances (P.L., c. 42, §§ 48-68) contains requirements for the adoption and provisions of the ordinance which have not been observed and fulfilled. The other is that no valid ordinance can deprive them of the right which they assert. They argue that the police power cannot be exerted to that extent.

Upon this latter ground, no case of undue infringement of property rights is made out. The general welfare may be tested by considerations of stabilization, orderliness and development in the forms, branches and grouping of the elements of residence, business and industry in community life. "* * * the rule that, where any fair reason could be assigned for bringing legislation within its [the police power's] purview, the question of justice was for the Legislature alone, has been consistently followed. State v. Griffin, 69 N.H. 1, 22 et seq., 39 A. 260, 41 L.R.A. 177, 76 Am.St.Rep. 139, and cases cited; Barber v. School Board, 82 N.H. 426, 428, 135 A. 159, and cases cited." Sundeen v. Rogers, 83 N.H. 253, 257, 141 A. 142, 144, 57 A.L.R. 950. A community's prosperity may depend upon convenience and expediency in the arrangement, allocation and layout of the diversified uses of property therein, as well as upon the orthodox reasons of health, safety and morals. It is true that "the boundaries [of the police power] are to be determined by a consideration of specific instances as they are presented" (Sundeen v. Rogers, supra, page 258, 141 A. page 145), but the defendants have not demonstrated that the use they propose to make of their property may not be enjoined in furtherance of the town's welfare.

The argument of unjust discrimination in the permission of the continuance of existing conditions while new or additional ones of the same type or kind are forbidden, overlooks the public right to prevent their increase although it may or does not order that existing ones shall cease. Classification by which unsuitable conditions are restrained within their existing extent is not unreasonable. The hardship of taking away an established use may well be regarded as greater than of prevention of a new use. The seriousness of the restriction upon the private right is to be considered in balance with the expediency of the public interest. Woolf v. Fuller, 87 N. H. 64, 68, 69, 174 A. 193, 94 A.L.R. 1067. It is reasonably just to classify between existing use and proposed use although otherwise the uses may be the same.

In respect to the claim of non-compliance of the ordinance with the zoning act, one point taken is that the zoning commission required by the act (section 53) to be ap pointed and to recommend district boundaries and regulations to be enforced therein, in its report went no farther than to advise that the erection of a certain kind of buildings within the district defined by the report be prohibited. It is argued that no proposed regulations were submitted with the report although they were required as a statutory condition for the validity of the report and of action upon it.

But restrictions are regulations within the clear meaning of the act. While power "to regulate and restrict" (sections 48, 49, 51, 52) is granted, restrictions are embraced in regulations, as the latter word is employed elsewhere in the act (sections 49, 50). A legislative intent to distinguish between the words is not found. Any restriction is a regulation, and the statutory language in this respect is of redundancy and synonyms. The report was sufficient in respect to proposed regulations in restriction of use as well as in respect to the boundaries of the zoned district.

The defendants further claim that in the original vote adopting the zoning commission's report no regulations were established providing for the grant of special exceptions to the terms of the vote by the board of adjustment to be created. By the act (section 54) the "local legislative body [here the town meeting] shall provide for the appointment of a board of adjustment, and in regulations and restrictions adopted pursuant to the authority hereof shall provide that the said board may, in appropriate cases and subject to appropriate conditions and safeguards, make special exceptions to the terms of the ordinance in harmony with its general purpose and intent and in accordance with general or specific rules therein contained". By a later vote the town authorized the board of adjustment to permit the erection, enlargement, alteration, or reconstruction of the kind of buildings affected by the original vote, and prescribed conditions under which the...