Town of Rye v. Ciborowski, 6038

• Decision Date: 05 April 1971
• Docket Number: No. 6038,6038
• Citation: 111 N.H. 77,276 A.2d 482
• Parties: TOWN OF RYE v. Jacob S. CIBOROWSKI, Thomas J. Morris, Intervenor.
• Court: New Hampshire Supreme Court

Page 482

276 A.2d 482

111 N.H. 77

TOWN OF RYE v. Jacob S. CIBOROWSKI, Thomas J. Morris, Intervenor.

No. 6038.

Supreme Court of New Hampshire.

April 5, 1971.

Boynton, Waldron & Dill, Portsmouth (Richard E. Dill, Portsmouth, orally), for plaintiff.

William Maynard, Vincent P. Dunn, Concord, and Grinnell &Bureau, Derry (George H. Grinnell, Derry, orally), for defendant.

McLane, Carleton, Graf, Greene & Brown, Manchester (Stanley M. Brown, Manchester, orally), for intervenor.

Grinnell & Bureau, Derry (George H. Grinnell, Derry, orally), for Aviation Assn. of N.H.

PER CURIAM.

The town of Rye, which had granted defendant a variance or a special ruling to 'establish a private landing area' in front of his home partly in a business area and partly in a single residence area, seeks by bill in equity to restrain defendant from what it claims is an extension to the detriment of the town of the use permitted by the variance.

The matter was heard before Amos N. Blandin, Jr., Judicial Referee, who took a view and who permitted Morris to intervene over objection. He denied subject to exception the request of the Aviation Association of New Hampshire to intervene.

In April 1964, the defendant petitioned the Rye Zoning Board of Adjustment by letter for permission to 'establish a private landing area of approximately 1800 feet in length in front of my home on Lafayette Road * * *.' A petition on a form provided for requesting a variance was also filed.

The Rye zoning ordinance does not permit use for aviation in any zone but contains a section (Section 9-F) entitled 'Special Rulings' as follows: 'Any building or premises may be erected, altered and used in any district for any of the following purposes provided the Board of Adjustment shall rule that such use is not detrimental or injurious to the neighborhood.' The first use listed is 'Aviation.'

Four abutters, including the intervenor, signed separate but almost identical statements prepared by the defendant stating that, with reference to his application for variance 'for a private airport,' they had no objection. At the hearing no objection was raised, and a motion that 'the variance be granted' was carried with all in favor on May 26, 1964. The Clerk of the Board testified that the variance was granted on the basis of representations by the defendant that he was constructing a runway of 1800 feet for his own personal use only.

Defendant applied for site approval from the New Hampshire Aeronautics Commission (N.H.A.C.) and for 'air space' from the Federal Aviation Authority (F.A.A.) representing that he proposed a 1700 200 sod runway for limited private use and that the anticipated use five years later would be for two based aircraft with a maximum of fifteen landings per month. He was granted 'air space' over objections of the Pease Air Force Base on May 18, 1965. Upon filing a sketch with the N.H.A.C. showing a 1700 200 turf runway, he was advised on March 14, 1966 that to get site approval he would need to clear the area at each end to allow clearance for landings and that some of the required clearing might be on land of others so that necessary easements would have to be obtained. 'Site approval' was given on April 18, 1966.

In the process of complying with this requirement, defendant purchased land eastterly of his runway, including a parcel from the intervenor Morris. Defendant and Morris had some dispute over rights in certain of the land resulting in a pending action which is not material to the issues before us. By October 1966 a runway 2600 200 was partly completed and was wholly completed and macadamized by June 1968 and opened for public use.

The Cibor Airstrip, as it is called, is adjoined by Lafayette Road on the west and by a cleared area of about 1700 feet on the east before reaching Moodyville, a development of about twenty-nine houses with about 127 persons. The west end of Cibor Airstrip is about four miles from the easterly end of the main Pease Air Base runway. Cibor is less than one and one-half miles southerly of the extended line of the Pease runway and is inside the Pease traffic patterns.

The judicial referee found on sufficient evidence that in the summer of 1968 the number of planes using Cibor had increased to a 'dozen or more' with fifteen-twenty landings a day sometimes with numberous flights over Moodyville at tree-level height which greatly alarmed inhabitants; that there had been a number of night takeoffs from the unlighted strip; that complaints had been made to state and federal authorities with no effective action resulting; that there have been numerous low-level flights over the Morris land which are hazardous to persons and cattle and which create a private nuisance. He also found that the zoning board granted the variance relying on defendant's representation that 'he would have an 1800 foot runway for (his) own personal use and would not generate any traffic other than that.' He also found that the assents of Morris and one Ham were obtained on similar representations and would not have been obtained otherwise, that these representations were 'not deliberately fraudulent' but that defendant changed his plans after getting started and 'has established and is conducting a greatly expanded and hazardous operation' which the board had not permitted. He found that the defendant in expending substantial sums on the airstrip either knew or should have known that he had no right to do as he has and that any hardship on him is self-inflicted.

In October 1967, defendant had applied to the N.H.A.C. for approval of a private, commercial airport but on January 8, 1968 withdrew his request because of objections.

The judicial referee recommended a decree in ten parts that was approved by the Court (Keller, J.) on March 10, 1969, which limited the use of Cibor to defendant's own single-engine plane and one other single-engine plane, prohibited night use while unlighted, limited use to fifteen takeoffs and landings per month, prohibited multiple-engine or jet aircraft, student pilot training, touch-and-go landing practice, or aerial acrobatics, required aircraft to clear structures and trees on Moodyville by 100 feet, limited use at the westerly end to that ordered by N.H.A.C., ordered defendant to...