Summary
upholding condition restricting sales to types of items sold previously under preexisting use
Summary of this case from Peabody v. Town of WindhamOpinion
No. 4688.
Argued November 5, 1958.
Decided November 28, 1958.
1. Where a municipal zoning ordinance prohibited apartments on the third floor of buildings located in a single residence district and further provided that the third floor of buildings in such district shall not be "used for cooking or other living purposes except sleeping rooms," the installation on such floors of "combination units" consisting of a cooking stove, electric refrigerator and sink requiring special wiring and plumbing, constituted a substantial enlargement of the pre-existing use of "hot plates" and "coffee percolators" rendering the use different in character and changing the "sleeping rooms" to rooms "used for cooking or other living purposes" in violation of the ordinance.
2. Zoning by its nature restricts and regulates the use of land and buildings to specified uses, and provisions which permit the expansion, extension and enlargement of nonconforming uses are generally construed strictly.
BILL IN EQUITY, brought by the plaintiff, city of Keene, against the defendants to enjoin an alleged violation of the zoning ordinance on the third floor of their premises at 137 Court Street. RSA 31:88. The premises are located in a single residence district which permits a "boarding house" or a "furnished room house" but, with minor exceptions not in issue here, does not allow apartments. In 1957, the defendants purchased the premises, which for many years "has been known as a rooming house," from one Sturtevant, who in turn purchased it from one Lockwood in 1956. Lockwood had owned the property for a long period of time including a period prior to the enactment of the Keene zoning ordinance in 1926, and had conducted a boarding house upon the premises and served meals to the roomers but this practice was discontinued three years prior to the hearing. The premises have three stories, the first and second of which each consists of single rooms "and what Everett Sturtevant called an apartment." The third floor consisted of four furnished single rooms without bath, toilet or water connections and in two of the rooms were "hot-plates" and coffee percolators.
After Sturtevant purchased the property in 1956 he installed "combination units" in two of the rooms on the third floor. Each combination unit consisted of a sink, an electric stove and an electric refrigerator, combined together in one structural unit, and required the installation of new plumbing, water connections and special electrical wiring.
The Presiding Justice ruled that the installation of the combination units on the third floor did not change the use to that of apartments and did not create a use "substantially different" from the use made when the amended ordinance was adopted. Accordingly the Court ruled that no cooking appliances could be used in more than two rooms on the third floor of the premises at 137 Court Street. The plaintiff's exceptions to the denial of its motion to set aside the verdict and to grant a new trial were reserved and transferred by Keller, J.
Ernest L. Bell III, city solicitor (by brief and orally), for the plaintiff.
Howard B. Lane for the defendants, furnished no brief.
The first issue in the case is whether the installation of "combination units" in two of the rooms on the third floor of the premises violated section 2 A (1) of the Keene zoning ordinance. This ordinance sets up a single-residence district and provides as follows: "No third floor shall be designated or occupied as an apartment, or used for cooking or other living purposes except for sleeping rooms . . . ."
No issue was raised by the parties as to whether the use of the first and second floors violated the ordinance and no issue was raised as to whether the prior use of hot-plates and coffee percolators on the third floor constituted a violation of the zoning ordinance. This was stated by the Trial Court as follows: "The City does not claim in this action that the use made of the rooms prior to the installation of the combination units was in violation of the ordinance, but it does claim that the installation changed the rooms to apartments and that this is a violation of the [ordinance]." As already pointed out in the statement of facts the combination units consisted of a sink, electric stove and an electric refrigerator, combined together in one structural unit. None of the rooms on the third floor were connected for water or the sewer prior to the installation of the combination units. Their installation required new plumbing, water and sewage connections and special electric wiring.
The Trial Court ruled that the rooms on the third floor, after the installation of the combination units, were single rooms used for light housekeeping, were not complete dwelling units and were not apartments. In making this ruling consideration was given to section 2 B of the ordinance which permits in a single-residence district: "Boarding house, furnished room house, or accommodations for tourists or overnight guests; provided that, if a house already contains two families, no rooms shall be rented out unfurnished or for light housekeeping."
In the absence of any definition of the terms used in the Keene zoning ordinance, it is difficult to determine when the use of furnished light housekeeping rooms stops and the use of apartments begins. Scanlan v. LaCoste, 59 Colo. 449. This is true in this case even though the facts are substantially without dispute. "Generally speaking, however, the rooming-house proprietor furnishes bedrooms or sleeping accommodations, used principally as a place to rest, sleep, for toilet and dressing. A rooming house is usually a house where bedrooms, as such, are furnished. It is not ordinarily expected that housekeeping, light or heavy, or the preparation or enjoyment of meals, will take place there, or that the room will be used to any considerable extent as a sitting room. An apartment, however, is usually looked upon as a home. It may consist of a single main room; but its term implies that housekeeping, including necessary accumulation and preparation of food, and cooking, will be conducted there." Cedar Rapids I. Co. v. Commodore H. Co., 205 Iowa 736, 740. See also, Evans v. Roth, 356 Mo. 237; Sitzler v. Lathers (App.Div.) 229 N. Y. S. 47. However for the purposes of this case it is unnecessary to determine what constitutes an apartment.
The Keene zoning ordinance (2 A 1) not only prohibits apartments on the third floor (with an exception not in issue here) but also provides that the third floor shall not be "used for cooking or other living purposes except for sleeping rooms." The installation of the combination units provided a stove for cooking and sink and electric refrigerator for living purposes within the meaning of the ordinance. The purpose of the ordinance was more restrictive than would have been the case if the prohibition were limited to apartments. The ordinance evidences a purpose to prohibit the increase of additional facilities and to restrict increased commercial facilities in the single-residence districts. Sullivan v. Investment Trust Co., 89 N.H. 112. Consequently, the defendant has violated this section of the ordinance even if the rooms on the third floor do not constitute apartments within the meaning of the ordinance unless the use was permitted as a nonconforming use under section 8 of the ordinance.
The Trial Court ruled that the installation of the "combination units" in the rooms on the third floor was not an alteration "substantially different from the use to which it was put before the alteration" (RSA 31:62) within the meaning of section 8 of the zoning ordinance. Zoning regulations to be effective, both in theory and in practice, must be enacted and enforced with a view to the future needs as well as the present condition of the municipality. Hudson v. Paradise, 101 N.H. 389; Kimball v. Blanchard, 90 N.H. 298, 300. Pre-existing nonconforming uses may be "allowed to continue but not to multiply when they are harmful or improper." Edgewood Civic Club v. Blaisdell, 95 N.H. 244, 246. Since zoning by its nature restricts and regulates (RSA 31:60, 61) the use of land and buildings to specified uses, provisions which permit the expansion, extension and enlargement of nonconforming uses are generally construed strictly. 2 Rathkopf, The Law of Zoning and Planning, c. 62; 8 McQuillin, Municipal Corporations, (3d ed.) s. 25.183; 1 Yokley, Zoning Law and Practice, (2d ed.) s. 153; Stone v. Cray, 89 N.H. 483. Furthermore denials by zoning authorities of requests to substantially enlarge or extend nonconforming uses are usually sustained in this court. Brady v. Keene, 90 N.H. 99; Carrick v. Langtry, 99 N.H. 251; Keene v. Parenteau, 99 N.H. 415. In the light of these principles the application which the Trial Court made of section 8 of the ordinance cannot be affirmed. The installation of the "combination units" was a substantial enlargement of the former use making it different in character and changing the "sleeping rooms" to rooms "used for cooking or other living purposes" in violation of section 2 A 1 of the Keene zoning ordinance. Keene v. Parenteau, supra, 416; see Sullivan v. Investment Trust Co., 89 N.H. 112. The contrary finding of the Trial Court is not sustainable on the record.
In view of the result reached it is unnecessary to consider the additional arguments of the plaintiff that the installation of the combination units violated section 2 B of the zoning ordinance which prohibited the renting of rooms for light housekeeping under certain conditions.
Decree for the plaintiff.
All concurred.