Opinion
No. 5224.
Submitted October 6, 1965.
Decided December 30, 1965.
1. A person is charged with knowledge of zoning restrictions placed on his property and hence he obtains no vested rights by a building permit issued under a mistake of fact or in violation of law.
2. The issuance of an illegal permit by a building inspector did not supersede the zoning ordinance which prohibited the conversion of plaintiff's property which the permit purported to allow.
3. The rule which prevents revocation of a valid building permit following amendment of a zoning ordinance where the owner has expended substantial sums of money in reliance upon the permit does not extend to cases where the issuing official exceeded his authority by issuing a permit in violation of the ordinance in effect at the time of its issuance.
4. Governmental or municipal immunity precludes an action against the city for damages sustained by an owner of real property resulting from the revocation of a building permit issued by a building inspector in violation of a zoning ordinance; and such immunity extends to the building inspector who was performing a governmental function.
5. Where a municipality purchased liability insurance with coverage limited to that permitted by statute (RSA ch. 412) "on account of bodily injuries" or "damage to or the destruction of property" such policy afforded no coverage for damages sustained by a property owner by reason of revocation of an illegally issued building permit, and hence neither the city nor its insurer may be held liable for such damages.
Petition for declaratory judgment (RSA 491:22) which by amendment, allowed by the Superior Court, is now a bill in equity seeking damages incurred by the plaintiff as a result of the closing of her retail store on orders of the building inspector of the city of Dover. It is alleged that the plaintiff was informed by the building inspector that no permit was required for the alteration of her residence as a shop for children's apparel and that after the alterations were made and expenses were incurred the plaintiff was notified by the defendant that the operation of the shop was proscribed by the zoning ordinance. Subsequent consultations with city officials were unsuccessful and the plaintiff was ordered to close her shop which she did. The allegations are stated in more detail in the former case of Hermer v. Dover, 105 N.H. 108.
The defendant demurred to the plaintiff's bill in equity alleging the defense of municipal and governmental immunity. The defendant in its motion to dismiss alleged that it had no insurance coverage as defined in RSA 412:3. The Court (Morris, J.) reserved and transferred without ruling certain questions of law based on the pleadings.
Fisher, Parsons, Moran Temple for the plaintiff, filed no brief.
T. Casey Moher for the defendant, filed no brief.
This case presents the general question of whether the defendant municipality is liable for damages allegedly caused the plaintiff because of mistake, negligence or misconduct of the city building inspector in administering a zoning ordinance. Annot. 6 A.L.R. 2d 960, 965-975; 4 McQuillin, Municipal Corporations (3d ed.) s. 12.208, p. 141 (1949).
"A person is charged with knowledge of the zoning restrictions placed on his property, and thus he obtains no vested rights by a building permit issued under a mistake of fact or in violation of law." Rhyne, Municipal Law, s. 32-25, pp. 891-892 (1957). The rule which prevents revocation of a valid permit following amendment of an ordinance where the appellant has expended substantial sums of money in reliance upon the permit (Winn v. Corporation, 100 N.H. 280) does not extend to cases where the issuing official exceeded his authority by issuing a permit in violation of the ordinance in effect at the time of its issuance. Dumais v. Somersworth, 101 N.H. 111, 115. In such a case the permit ". . . could confer no greater rights upon the plaintiff than did the ordinance itself." Dumais v. Somersworth, supra; Osborn v. Darien, 119 Conn. 182. The illegal permit issued to the plaintiff does not supersede the ordinance which prohibited the conversion of the property which the permit purported to allow. Arsenault v. Keene, 104 N.H. 356; 2 Metzenbaum, The Law of Zoning 1159 (2d ed. 1955). Consequently it has been decided that the wrongful issuance or the wrongful revocation of a permit does not subject a municipality to liability for damages even if the municipal official did not act in good faith. 2 Rathkopf, The Law of Zoning and Planning, c. 57, s. 17, p. 57-49 (3d ed. 1964).
One of the questions transferred without ruling is whether the defendant municipality has a valid defense by reason of governmental or municipal immunity for tort. Such immunity has existed heretofore in this jurisdiction. Reynolds v. Nashua, 93 N.H. 28; Shea v. Portsmouth, 98 N.H. 22; Opinion of the Justices, 101 N.H. 546, 548. We are aware, of course, that municipal immunity is on the wane elsewhere, has been subjected to a barrage of criticism and has been abolished in some jurisdictions by judicial decisions having prospective effect. Annot. 60 A.L.R. 2d 1198. However, it is not deemed advisable to review the applicable New Hampshire law in this case where there has been no oral argument and neither party has submitted a brief. See State v. LaPalme, 104 N.H. 97, 98. Consequently on the basis of the cases cited we apply the rule of governmental and municipal immunity to the pleadings in this case. It follows that the defendant has a valid defense by reason of governmental or municipal immunity. This immunity would apply both to the defendant municipality and its building inspector who was performing a governmental function as appears from the pleadings.
Statutory provisions exist permitting municipalities to procure liability insurance "on account of bodily injuries" or "damage to or the destruction of property." RSA 412:1. RSA 412:3 provides in part as follows: "It shall be lawful for the state or any municipal subdivision thereof, including any county, city, town, school district or other district, to procure the policies of insurance described in section 1 of this chapter. In any action against the state or any municipal subdivision thereof to enforce liability on account of a risk so insured against, the insuring company or state or municipal subdivision thereof, shall not be allowed to plead as a defense immunity from liability for damages resulting from the performance of governmental functions, and its liability shall be determined as in the case of a private corporation." Inasmuch as the insurance procured by the defendant was limited both by the statute and its policy to damages for bodily injuries or for damage to or destruction of property, it follows that the insurance carrier would not be liable for the damages incurred by the plaintiff. Accordingly, neither the defendant nor its insurance carrier is liable for the damages alleged to have been suffered by the plaintiff in this case.
Remanded.
All concurred.