Vlahos Realty Co. v. Little Boar's Head Dist.

• Decision Date: 28 November 1958
• Citation: 146 A.2d 257,101 N.H. 460
• Parties: VLAHOS REALTY COMPANY, Inc. v. LITTLE BOAR'S HEAD DISTRICT et al.
• Court: New Hampshire Supreme Court

Page 257

146 A.2d 257

101 N.H. 460

VLAHOS REALTY COMPANY, Inc. v. LITTLE BOAR'S HEAD DISTRICT et al.

Supreme Court of New Hampshire.

Argued Oct. 7, 1958.

Decided Nov. 28, 1958.

Boynton, Waldron & Dill, Wyman P. Boynton, Portsmouth, for plaintiff.

William P. Fowler, North Hampton and Edward R. Hale and Neil L. Lynch, Boston, Mass., for defendants.

Upton, Sanders & Upton, Richard F. Upton, Concord, for intervenors.

KENISON, Chief Justice.

In this declaratory judgment proceeding (RSA 491:22) the plaintiff seeks to ascertain the validity of a conditional variance applicable to its premises which is subject to a one-year nontransferable permit issuable to it or its lessee and renewable if the owner or lessee complies with all the conditions of the permit. The validity of such conditional variance, coupled with an annual permit, is a matter of first impression in this jurisdiction. Cf. Mater v. City of Dover, 97 N.H. 13, 16, 79 A.2d 844. A good nutshell introduction to this problem without, however, any accompanying solution, is found in Horack and Van Nolan, 'Land Use Controls,' (1955) p. 184: 'The most controversial condition limits the variance to a specific person. Although courts usually strike down such a limitation on the ground that it is unreasonable and discriminatory and the grant of a special privilege, in the actual administration of a zoning ordinance there is much justification for this restriction because of a board's confidence in the good reputation, capacity, and reliability of particular persons. On the other hand, isn't the argument valid that zoning ordinances apply to land and not to individuals?'

Since 1955 the plaintiff owned and its lessees have operated premises for the sale of ice cream, dairy products and other items specified in annual permits issued pursuant to a conditional variance granted by the board of adjustment of defendant District in 1947. The 1947 variance which was granted to one Sawyer, a predecessor in title of the plaintiff, was subject to the issuance of a permit by the zoning inspector limited to one year and 'renewable annually if complied with by the appellant [Sawyer].' Among the several conditions listed in the permit was No. 9 which reads as follows: 'Said permit shall be non-transferable, shall not be applicable to any lessee, and may be revoked or modified at any time for non-compliance with the conditions thereof, or if the stand in question shall be so operated as to cause injury or offense to the neighborhood.' Since 1947 the various owners of the premises or their lessees have been issued an annual permit subject to substantially the same conditions including No. 9. The present proceeding was brought in September 1957, when the defendant zoning inspector advised the plaintiff's lessee that he had violated certain provisions in the permit and indicated that he would not renew the permit.

A chronological summary of the events leading up to the present litigation is necessary for an understanding of the problem. At the time the defendant adopted its zoning ordinance in 1937, pursuant to special legislation (Laws 1937, c. 265), the plaintiff's predecessor in title, one Sawyer, was operating an ice cream stand located in the residential zoning district as a pre-existing nonconforming use under the provisions of the zoning ordinance. This commercial enterprise continued through the year 1941 but was discontinued during the years 1942 through 1945 because of World War II. In 1946, the plaintiff's predecessor in title Sawyer obtained a conditional variance, subject to the issuance of a conditional permit by the zoning inspector. In 1947, a further conditional variance and conditional permit were issued to Sawyer and the premises were operated by him or his tenants through 1952. In 1952, Sawyer appealed from the ruling of the zoning inspector refusing him permission to sell coffee and sandwiches at his ice cream stand, which was denied. No appeals were taken from the rulings of the board of adjustment.

In 1953, Sawyer conveyed the premises to the plaintiff's predecessor in title who in turn conveyed to the plaintiff in 1955. From 1953 to 1957 the premises were operated by the owners or their lessees subject to the terms of the conditional variance granted in 1947 and the nine conditions attached to the individual annual conditional permits issued by the zoning inspector.

While the zoning statute contains no express provision permitting conditions to be attached to a variance, the board of adjustment is given broad powers 'and may make such order, or decision, as ought to be made.' RSA 31:72, subd. IV. This statutory language is inclusive enough to authorize the power to attach reasonable conditions to the granting of variances as was intimated but not decided in Mater v. City of Dover, 97 N.H. 13, 16, 79 A.2d 844. A large number of cases sustain the right to attach conditions to the grant of a variance where it is necessary to do so in order to observe the spirit of the zoning ordinance. Annotation 168 A.L.R. 13, 60; Rhyne, Municipal Law 881 (1957); Reps. Legal and Administrative Aspects of Conditional Zoning Variances and Exceptions, 2 Syracuse L.Rev. 54 (1950). Some authorities maintain that it is 'common practice' to grant conditional variances which 'should usually be upheld unless the conditions are beyond the authority of the board, are outside the Law or unless they are plainly unreasonable.' 2 Metzenbaum, The Law of Zoning, p. 957 (1955).

It is generally recognized that zoning restrictions are constitutional subject to the qualification that they cannot be unreasonable or arbitrary. 8 McQuillin, Municipal Corporations, § 25.05; 1 Yokley, Zoning Law and Practice (2d ed. 1953) § 26. In the present case the variance was not only conditional, which it had a right to be, but the conditions included the requirement of an annual permit, which was also revocable and nontransferable because limited to the specific owner or lessee who was operating the premises for that particular year (condition 9). While this condition might make zoning enforcement easier and has administrative merit, it has been pointed out that it would place the...