Town of Rye v. McMahon, 7634

• Decision Date: 31 October 1977
• Docket Number: No. 7634,7634
• Citation: 379 A.2d 807,117 N.H. 857
• Parties: TOWN OF RYE v. John A. McMAHON.
• Court: New Hampshire Supreme Court

Page 807

379 A.2d 807

117 N.H. 857

TOWN OF RYE v. John A. McMAHON.

No. 7634.

Supreme Court of New Hampshire.

Oct. 31, 1977.

Tetler & Holmes, of Hampton (Gary W. Holmes, Hampton, orally), for plaintiff.

Shute, Engel & Frasier, of Exeter (David C. Engel, Exeter, orally), for defendant.

DOUGLAS, Justice.

This case, as it was briefed and argued before us, presented questions concerning the power of a town board of adjustment to grant a variance from a municipal zoning ordinance that would authorize a use specifically prohibited throughout the town and the extent to which the town would then be estopped to enjoin the use after the variance had been implemented. However, careful scrutiny of the record below indicates that the requisite factual predicate to decide those issues does not exist.

The defendant and his wife purchased the property in question, located on Ocean Boulevard in Rye, New Hampshire, on January 28, 1971. The land was occupied by four buildings, two duplexes and two single-dwelling units, in an advanced state of disrepair. The Rye Zoning Ordinance specifically prohibits apartments anywhere in the town of Rye. There was evidence that the former owner had used the buildings for rental property. But the Master (Leonard C. Hardwick ) found no evidence that such use had been nonconforming or a nonconforming apartment house. Section 15 of the Rye Zoning Ordinance applicable to defendant's property allows rental of "housekeeping units" as tourist cabins or motel rooms, that would otherwise be suitable as apartments provided occupancy does not exceed four months. Section 13 of the ordinance also permits indefinite continuation or restoration of nonconforming uses in accordance with the Building Code.

Before title to the property had passed, but after the purchase and sale agreement had been signed, the defendant examined the buildings with the Rye building inspector. The latter recommended demolition and replacement of the existing structures. Toward that end, the defendant petitioned the board of adjustment for a variance to construct "sixteen new housekeeping units under Section 15-13 (sic) . . .." The petition additionally requested a variance to construct the units "700 sq. ft. in lieu of specifications in Section 15-B," which requires an area of 1000 square feet for tourist camps and motels. The petition was denied on February 9, 1971. Defendant received a rehearing of his petition on March 16. He reduced his request to twelve "new housekeeping units . . . under Section 15-13 (sic) . . .," again requesting area specifications of 700 square feet. The minutes of this hearing disclose opposition by a Mrs. Frances J. Holway. She asked for an explanation of the "difference between apartment and housekeeping units." Someone, the minutes do not disclose whom, explained that the latter were for occupancy not over four months. At a hearing before the master, she testified positively that the defendant himself promised that no one except himself, his family and employees would live there for more than four months. The petition was granted subject to certain conditions not relevant here. On April 1, 1971, the defendant applied to the building inspector for a permit in which the intended use was listed as "Housekeeping Units, Motel." Nowhere in any document before the board or the inspector did the defendant use the word "apartment."

Construction was completed on approximately June 1, 1972, and the defendant began renting the units as apartments for year-round occupation. During the construction period the building inspector and members of the board of selectmen visited the site, but never advised the defendant that he was in violation of the ordinance. On April 24, 1973, nearly eleven months after the apartments were opened, he was arrested. A trial in Rye Municipal Court resulted in a verdict of not guilty. The town then sought an injunction against continued use of the buildings as apartments. A hearing before the master ended in the issuance of the injunction. The defendant seasonably excepted and the case was reserved and transferred by Perkins, J.

The master found that an apartment house was not a preexisting nonconforming use. Consequently, the defendant had to procure a variance or special exception before building the apartments. He elected to petition for a variance. A variance will be granted when special conditions create a situation in which the strict enforcement of a zoning ordinance will result in unnecessary hardship for a property owner. RSA 31:72 III; accord, Burr v. Keene, 105 N.H. 228, 230, 196 A.2d 63, 65 (1963). The leading case of Gelinas v. Portsmouth, 97 N.H. 248, 85 A.2d 896 (1952), details the standard for granting a variance:

"(1) no diminution in value of surrounding properties would be suffered; (2) granting the permit would be of benefit to the public interest; (3) denial of the permit would result in unnecessary hardship to the owner seeking it; (4) by granting the permit substantial justice will be done; (5) the use must not be contrary to the spirit of the ordinance."

Id. at 250, 85 A.2d at 898. A variance to construct an apartment house in a town in which no apartments at all are permitted would indeed seem "contrary to the spirit of the ordinance." However, we need not decide that question because we hold that, although the master's report is not free from doubt, the board of adjustment did not grant a variance to build an apartment house.

In his report, the master states that "the zoning board exceeded its rights in granting . . . a variance...