Sundeen v. Rogers

• Citation: 141 A. 142
• Parties: SUNDEEN v. ROGERS et al.
• Decision Date: 06 March 1928
• Court: New Hampshire Supreme Court

141 A. 142

SUNDEEN

v. ROGERS et al.

Supreme Court of New Hampshire. Hillsborough.

March 6, 1928.

Exceptions from Superior Court, (Hillsborough County; Burque, Judge.

Bill by Emma Sundeen against James A. Rogers and another. Judgment dismissing bill, and plaintiff brings exceptions. Exceptions overruled.

Bill in equity, brought by a property owner to review an order of the board of adjustment, acting under the zoning ordinance of the city of Manchester.

The agreed facts were supplemented by a view of the premises. The superior court found that the ordinance and the order of the board of adjustment were reasonable and dismissed the bill, subject to exception. Further facts appear in the opinion.

Frederic E. St. Cyr, of Manchester, for plaintiff.

Thomas J. Bois and Thorp & Branch, all of Manchester (Frederick W. Branch, of Manchester, orally), for defendants.

PEASLEE, C. J. This proceeding is under Public Laws, c. 42, §§ 48-66, known as the Zoning Act. The plaintiff, alleging grievances in the action of the superintendent of buildings and the board of adjustment, filed her petition in the superior court, under the provisions of section 61. Upon this petition the court found certain facts, and ordered that the bill be dismissed. The statute directs that the court shall "make such order approving, modifying or setting aside the decision appealed from as justice may require, and may make a new order as a substitute for the order of the board." Id., § 62. While the order dismissing the bill does not conform to the statutory procedure, it is, in substance, designed to be an approval of the order appealed from, and is so treated.

The proceeding in the superior court was had for the purpose of raising certain questions as to the validity of the statute and the ordinance. There appears to be no claim that the action taken by the board was improper, if the legislation under which it acted is valid.

The zoning ordinance of the city of Manchester provides that in certain described residential districts auxiliary buildings shall be erected on the rear half of the lot only. The plaintiff's position is that this regulation should be set aside because of two distinct claims of invalidity: I. It is alleged to be an unconstitutional infringement upon property rights. II. The provision for granting variances is said to furnish no sufficient guide for action by the board of adjustment.

I. Two grounds are relied upon as sufficient for declaring the general purpose of the ordinance to be beyond the legislative power. It is said that a prohibition of the erection of a building within a certain distance from the street line amounts to a taking of property, as distinguished from a regulation of use, and that, therefore, compensation must be made. The other ground is that the reason for such a limitation of use is purely aesthetic, having no relation to the elements heretofore recognized as furnishing ground for the exercise of regulatory power, and that the Legislature cannot undertake to control the use of property so far as mere matters of good taste are concerned.

Ordinances having in view the general purpose to regulate the erection and occupation of buildings in thickly settled communities have become common in recent years, and there are many decisions dealing with the limitations which must be observed in such legislation. So far as the question of infringement upon the guaranties in the Federal Constitution is concerned, It is settled that these so-called setback provisions are valid, In Village of Euclid, Ohio, v. Ambler Realty Co., 272 U. S. 365, 47 S. Ct. 114, 71 L. Ed. 303, the general subject of zoning ordinances received full consideration, and the conclusion favorable to their validity was announced. In Gorieb v. Fox, 274 U. S. 603, 47 S. Ct. 675, 71 L. Ed. 1228, a setback ordinance was involved. In sustaining it the court said:

"It is hard to see any controlling difference between regulations which require the lot owner to leave open areas at the sides and rear of his house and limit the extent of his use of the space above his lot and a regulation which requires him to set his building a reasonable distance back from the street. Each interferes in the same way, if not to the same extent, with the owner's general right of dominion over his property. All rest for their justification upon the same reasons which have arisen in recent times as the result of the great increase and concentration of population in urban communities and the vast changes in the extent and complexity of the problems of modern city life. Euclid v. Ambler Co., supra, p. 386," 47 S. Ct. 114, 274 U. S. 608, 47 S. Ct. 677, 71 L. Ed. 1228.

Continuing as to the state of the law as held in the state courts, the opinion reads:

"The courts, it is true as already suggested, are in disagreement as to the validity of setback requirements. An examination discloses that one group of decisions holds that such requirements have no rational relation to the public safety, health, morals, or general welfare, and cannot be sustained as a legitimate exercise of the police power. The view of the other group is exactly to the contrary. In the Euclid Case, upon a review of the decisions, we rejected the basic reasons upon which the decisions in the first group depend and accepted those upon which rests the opposite view of the other group. Nothing we think is to be gained by a similar review in respect of the specific phase of the general question which is presented here. As to that, it is enough to say that, in consonance with the principles announced in the Euclid Case, and upon what, in the light of present day conditions, seems to be the better reason, we sustain the view put forward by the latter group of decisions, of which the following are representative: Windsor v. Whitney, 95 Conn. 357, 111 A. 354, 12 A. L. R. 669; Matter of Wulfsohn v. Burden, 241 N. Y. 288, 303, 150 N. E. 120, 43 A. L. R. 651; Lincoln Trust Co. v. Williams Bldg. Corp., 229 N. Y. 313, 128 N. E. 209," 274 U. S. 609, 610, 47 S. Ct. 677, 71 L. Ed. 1228.

The cases upon the subject are collected and reviewed in 43 C. J. 334 et seq.

The weight of authority is clearly for the validity of these ordinances. It seems to us that the better reasoning is on the same side. Earlier decisions, dealing with different conditions, are not of persuasive value. The constitutional principle involved has not changed. The legal question remains constant. Is the provision a reasonable law for the promotion of the general or public welfare? These general terms have already been, held to include such regulations as are calculated to promote the public health, safety, or morals, the comfort of the community, or the protection of property. State v. White, 64 N. H. 48, 5 A. 828; State v. Campbell, 64 N. H. 402, 13 A. 585, 10 Am. St Rep. 419. But although the legal test is always the same, it is manifest that its application to different conditions may lead to different results. The conclusion that conditions have not changed sufficiently to permit the making of these restrictions upon the use of property fails to give due weight to present day facts.

"It is undoubtedly true that many acts that are sustained today would not have been sustained a hundred years ago; but that proves nothing except that industrial conditions, and political theories as well, are constantly changing. It has no tendency to sustain the contention that the Constitution does not mean the same today that it meant to the men who framed it. * * * They knew conditions were constantly changing, and that laws which were well adapted to promote the welfare of the people at that time might become wholly inadequate for that purpose. * * * They knew that the reasonableness of a law depends on the situation as it exists at the time the law is passed—not on the situation as it existed when the Constitution was adopted." Carter v. Craig, 77 N. H. 200, 206, 207, 90 A. 598, 601 (57 L. R. A. [N. S.] 211, Ann. Cas. 1914D, 1179).

No sufficient reason has been found for adopting the narrower rule of legislative power. While it is true that the view that the individual should be protected from encroachment upon his rights by the mere will of the majority has always been maintained here (Williams v. State, 81 N. H. 341, 352, 125 A. 661), it is equally true that the police power has uniformly been treated as of broad application, and the rule that, where any fair reason could be assigned for bringing legislation within its 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). "Unless a court can clearly see that a law purporting to have been enacted to protect the public health and public morals has no relation to those objects, it cannot set it aside as unconstitutional and void." State v. Roberts, 74 N. H. 476, 478, 69 A. 722, 723 (16 L. R. A. [N. S.] 1115).

The claim that the ordinance amounts to a taking of the plaintiff's property is without substantial basis. "It is not an appropriation of the property to a public use, but the restraint of an injurious private use by the owner." Commonwealth v. Alger, 7 Cush. (Mass.) 53, 86. "Any conceivable statute enacted under the police power, and regulating the use of property, must necessarily affect injuriously individual rights; but in no instance, so far as known, has it been declared by a court of last resort that persons whose interests are so affected are entitled to compensation. Under the law of eminent domain, no one is entitled to compensation for injuries, however serious they may be, caused by public improvements, if no part of his lands or property is taken therefor." State v. Griffin, 69 N. H. 1, 26, 39 A. 260, 262 (41 L. R. A. 177, 76 Am. St. Rep. 139).

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