Town of Nottingham v. Lee Homes, Inc., 7939

• Decision Date: 19 June 1978
• Docket Number: No. 7939,7939
• Citation: 388 A.2d 940,118 N.H. 438
• Parties: TOWN OF NOTTINGHAM v. LEE HOMES, INC., et al.
• Court: New Hampshire Supreme Court

Page 940

388 A.2d 940

118 N.H. 438

TOWN OF NOTTINGHAM v. LEE HOMES, INC., et al.

No. 7939.

Supreme Court of New Hampshire.

June 19, 1978.

Shute, Engel & Frasier, Exeter (Robert L. Steuk, Exeter, orally), for the plaintiff.

Harold L. Lee, pro se, waived brief and oral argument.

Kearns & Colliander, Exeter (John D. Colliander, Exeter, orally), for the defendant Lee Homes, Inc.

Keefe, Dunnington & Shaheen, Dover, for the other defendants, waived brief and oral argument.

BOIS, Justice.

This is a petition for permanent injunction to enjoin the defendants from occupying or allowing others to occupy certain mobile homes in the town of Nottingham and to order the homes removed. After a hearing and a view, the Master (Leonard C. Hardwick, Esq.) recommended that the permanent injunction be granted, that the defendants be ordered to remove the mobile homes within thirty days from the effective date of the court's decree, and that if the defendants failed to comply that they be fined fifty dollars per day for each day of noncompliance. On April 20, 1977, the Court (Perkins, J.) approved these recommendations.

During the course of the trial, the master recommended that the motion of defendant Lee Homes, Inc. to amend its answer be denied. The defendant seasonably excepted to this denial and to the master's failure to grant portions of its requests for findings of fact and rulings of law. All questions of law raised by the foregoing exceptions and all other exceptions were reserved and transferred. We affirm in part and remand.

The facts in this case are as follows: In June 1971 defendant Lee Homes, Inc. (hereinafter Lee) acquired title to the parcel of land here involved. In April 1972 Lee applied to the Planning Board of the town of Nottingham (hereinafter the board) for approval of a proposed subdivision of the property. This application was denied on July 27, 1972, and thereafter Lee brought a "petition for review of planning board decision" in Rockingham County Superior Court pursuant to RSA 36:34 ("Court Review") (amended August 15, 1975). The last count of Lee's petition read:

Petitioner by way of further objection to the Planning Board Decision also wishes to raise the issue of whether or not the Nottingham Planning Board approved said subdivision under the provisions of RSA 36:23 which section if applicable, would make the Planning Board's decision null and void.

The petition was entered on the court's docket, and, after a hearing, the Court (Mullavey, J.) on May 9, 1974, rendered the following decree without opinion: "Petition dismissed." Lee did not appeal.

While this petition for review was pending, an unrelated judicial proceeding determined that the board's subdivision regulations had not been validly adopted. Consequently, the board in fact lacked authority to disapprove Lee's subdivision application in July 1972. RSA 36:21 (amended March 24, 1973). Despite this invalidation of the board's subdivision regulations, however, Lee did not attempt to reopen or appeal the court decision upholding the board's disapproval of Lee's application. Lee also did not make any attempt to develop its land after the regulations were invalidated. In November 1972 the board legally adopted new regulations effective January 1973. Thus, from that time on it had power to regulate subdivisions. RSA 36:19, 21 (amended March 24, 1973).

On November 22, 1976, Lee placed on its property two mobile homes, now occupied by the other defendants. In response, the town brought the present action for injunctive relief, alleging that the presence of the mobile homes on the property violated Nottingham's zoning ordinance and building code.

The master in his report found and ruled that Lee had violated article III, section 7 and article VIII, section 2 of the zoning ordinance, and article 2 of the building code. Article III, section 7 of the ordinance and article 2 of the code both require, with certain stated exceptions, that mobile homes be set on solid foundations of masonry walls. Article VIII, section 2 of the zoning ordinance provides that no building permits shall be issued for mobile homes unless plats or plans have first been approved by the building inspector and the planning board. The master granted the town's request for a finding that Lee had not obtained subdivision approval for the premises in question; Lee also concedes that it has not applied for a building permit. These findings and rulings were the bases for the court's grant of injunctive relief.

Lee's first contention in this appeal is that the town is estopped from asserting that Lee has not complied with the provisions of the current zoning ordinance and building code. In support of this contention, Lee alleges that the town "knew, should have known or was culpably negligent in not knowing, that its continuing representation as to its authority to approve subdivision plans were false," and that "Lee was induced to act to its prejudice upon the Town's representation that its Planning Board had authority to approve subdivision plans." According to Lee, but for the board's incorrect representations in 1972 that it had legal authority to disapprove subdivisions, Lee would have undertaken substantial development of its property and therefore have obtained vested rights. Such development might have insulated Lee from certain regulations. See RSA 36:24-a Supp.1977; Gosselin v. Nashua, 114 N.H. 447, 451, 321 A.2d 593, 596 (1974).

We do not accept this estoppel argument. First of all, estoppel does not work the way Lee claims it does. Estoppel "operates to put the party entitled to its benefit in the same position as if the thing represented were true." 3 Pomeroy, Equity Jurisprudence § 813 (5th ed. 1941); See generally Monadnock School Dist. v. Fitzwilliam, 105 N.H. 487, 488-489, 203 A.2d 46, 48 (1964); 28 Am.Jur.2d Estoppel and Waiver § 35 (1966). Were we to apply the estoppel doctrine to the board's representations in the instant case, we would conclude not that the board may not now assert that Lee has failed to comply with present zoning and building regulations, but rather that the board is estopped from denying that in early 1972 it possessed authority to regulate subdivisions. Clearly this is not a result Lee would favor.

Even assuming arguendo that estoppel operates the way Lee claims, Lee would still not prevail on this theory. The party asserting estoppel bears the burden of proving it. Bigwood v. Merrimack Village Dist.,108 N.H. 83, 87, 229 A.2d 341, 345 (1967). The essential elements of estoppel are:

(1) a representation or a concealment of material facts; (2) the representation must have been made with knowledge of the facts; (3) the party to whom it was made must have been ignorant of the truth of the matter; (4) it must have been made with the intention that the other party should act upon it; and (5) the other party must have been induced to act upon it to his prejudice.

Monadnock School Dist. v. Fitzwilliam, 105 N.H. at 491, 203 A.2d at 49-50; accord, Bigwood v. Merrimack Village Dist., 108 N.H. at 87, 229 A.2d at 344. These are all factual inquiries; therefore, the master's resolution of these questions will be sustained if supported by evidence. Id.; see Cheshire Oil Co., Inc. v. Springfield Realty Corp., 118 N.H. ---, 385 A.2d 835 (1978); Bielinski v. Miller, 118 N.H. ---, 382 A.2d 357...