Winn v. Lamoy Realty Corp.

• Decision Date: 14 August 1956
• Citation: 100 N.H. 280,124 A.2d 211
• Parties: Eva G. WINN et al. v. LAMOY REALTY CORP.
• Court: New Hampshire Supreme Court

Page 211

124 A.2d 211

100 N.H. 280

Eva G. WINN et al. v. LAMOY REALTY CORP.

Supreme Court of New Hampshire.

Argued June 6, 1956.

Decided July 6, 1956.

Rehearing Denied Aug. 14, 1956.

Joseph M. Kerrigan and Sullivan & Gregg, Nashua, for plaintiffs.

Morris D. Stein, Nashua (by brief and orally), for defendant.

BLANDIN, Justice.

The single question transferred is whether the defendant's right to build a store acquired by permit on May 10, 1955 was revoked on May 24, 1955 by an amendment to the zoning ordinance of Nashua prohibiting such construction. The decisions in the different states on this matter are by no means harmonious and even appear conflicting in some instances within the same jurisdiction. Note, 138 A.L.R. 500; Note, 40 A.L.R. 928. It appears upon analysis of their facts that a majority of these cases allow relief to the landowner only when he has incurred substantial expenditures or legal obligations relying in good faith upon the permit. Even most of the decisions which appear to take a different view will be found upon examination to show that where the permit was held irrevocable the landowner had in every instance fulfilled these requirements. The theory upon which they proceed is that the owner in such instances has acquired vested rights of which he can not lawfully be deprived. Herskovits v. Irwin, 299 Pa. 155, 149 A. 195; Lower Merion Tp. v. Frankel, 358 Pa. 430, 57 A.2d 900. While some cases seem to indicate that actual construction must have been commenced before relief may be granted, see Lutz v. New Albany City Plan Commission, 230 Ind. 74, 101 N.E.2d 187, we believe such a rule is too rigid. In many instances this policy might deny relief where the owner had suffered great detriment because of his reliance on the pemit and allow it where his damage was slight. It seems to us that the better view and the one more likely to produce justice is that where the owner, relying in good faith upon a permit and before it has been revoked, has made substantial construction on the property or his incurred substantial liabilities relating directly thereto, or both, the permit may not be cancelled. Herskovits v. Irwin, supra; Lower Merion Tp. v. Frankel, supra; City of Omaha v. Glissmann, 151 Neb. 895, 39 N.W.2d 828.

Although we have no cases in this state squarely on the point, the philosophy of our law seems to support such a rule. In Brady v. City of Keene, 90 N.H. 99, 4 A.2d 658, 660, the Court in denying relief to an owner who had made certain changes in his property and had entered into negotiations for a lease relying upon an ordinance which was later amended, spoke as follows: 'In cases of this sort 'The seriousness of the restriction upon the private right is to be considered in balance with the expediency of the public interest.' Stone v. Cray, 89 N.H. 483, 200 A. 517. In our opinion, the plaintiff at the time of the second amendment to the zoning ordinance had not done enough in relation to his property to acquire the right to continue with its preparation for a use forbidden by that amendment.

'The only finding of acts done by the plaintiff on the land itself upon the strength of the amendment * * * placing his property in a semi-residence district was that he removed 'some shrubbery and cut...