Summary
In Brady v. Keene, 90 N.H. 99, quoted approvingly in the Winn case, the plaintiff, relying upon an amendment to an existing ordinance, had in good faith removed some shrubbery and cut down a few trees preparatory to erecting a filling station.
Summary of this case from Rochester v. BarcombOpinion
No. 3040.
Decided February 7, 1939.
The legislative grant of power to cities to enact zoning ordinances (P. L., c. 42, ss. 46-68) is constitutional.
The power to amend or repeal their zoning ordinances is expressly granted to cities (Ib., s. 52); but this power is not unlimited and must be exercised reasonably and in such a way as to avoid arbitrary or unreasonable interference with constitutional rights.
Property having been originally placed by a zoning ordinance within a single-residence district, and the district having been changed into a semi-residence district, the city may later amend the latter ordinance and thereby replace the property in the single-residence district, provided the owner is not unlawfully prejudiced thereby.
In such case an owner was not unlawfully prejudiced where in reliance upon the second ordinance he had made changes of only a trivial character consisting of the cutting of a few trees and the execution of a lease which was not executed by the lessee until after the passage of the last ordinance.
PETITION, for a declaratory judgment under Laws 1929, c. 86. Trial by the court.
In June 1936, the plaintiff purchased the land and buildings situated at the corner of Main and Marlboro Streets in the City of Keene. Under the zoning ordinance then in force this property was located in a single residence district. At some time prior to May 6, 1937, the plaintiff filed a petition with the city government praying that this ordinance be amended so as to place his property in a semi-residence district. A hearing, upon notice duly ordered and published, was held upon this petition on June 3, 1937, and, no one appearing in opposition, its prayer was granted.
On October 20, following, the plaintiff filed with the board of engineers and the Board of Aldermen a request for a permit to store petroleum products upon his land. This permit was granted by the City Clerk to whom had previously been delegated the right to issue such permits if approved by the chief of the fire department. On December 2, 1937, a protest against the granting of this permit was filed with the Board of Mayor and Aldermen and on December 16, it was by them revoked. Notice of this revocation was forthwith sent to the plaintiff.
Also on December 2, 1937, the plaintiff petitioned the City Council for leave to construct a ramp up to and across the sidewalk adjacent to his property for the purpose of access to it with vehicles. At the hearing upon this petition, which was held pursuant to notice duly ordered, the plaintiff was given leave to withdraw.
On December 17, three persons who owned lots in the plaintiff's immediate neighborhood filed a petition with the board of mayor and aldermen praying that the plaintiff's land be returned to the more restricted zone in which it lay at the time when the plaintiff bought it. Notice on this petition was duly ordered and published and a hearing thereon was held on January 20, 1938, at which time it was voted to return the plaintiff's property to a single residence district. To this order the plaintiff filed a written protest.
In relation to the foregoing facts the court found that at some time prior to the plaintiff's application for the first change in the zoning law, he had begun negotiations with various oil companies with a view to leasing a part of his premises for a filling station, and that these negotiations finally culminated in a written lease entered into between the plaintiff and the Sinclair Refining Company. The date of this lease was stated therein as November 30, 1937, but the court found that it was not signed by the plaintiff until December 6, 1937, and was not signed by the oil company until February 1, 1938, and furthermore, that it "was finally executed by the oil company simply for the purpose of having the lease to produce in court at the date of hearing, which was February 24, 1938, and for the purpose of showing that the plaintiff had changed his position by reason of the actions of the city government." The only other finding of action taken by the plaintiff in reliance upon the first change in the zoning ordinance is that he removed "some shrubbery and cut down a few trees that were on the premises."
The court also found that the plaintiff was guilty of "a fraud upon the city government" in that he gave as a reason for his requested change in the zoning ordinance the fact that he wished to operate a coffee shop in connection with the tourist business which he conducted upon the premises, when he "had the plan in mind at that time to lease part of the premises for a filling station."
The findings conclude with the statement that "The Court is of the opinion that the actions of the city government and their representatives were legal, that the city government had the right to re-zone the district as they did, and consequently at the end of the plaintiff's testimony the defendant's motion to dismiss was granted."
The plaintiff's exception to the granting of this motion was transferred by Burque, C. J.
Howard B. Lane, for the plaintiff.
Walker S. Kimball, City Solicitor, for the defendant.
The legislative grant of power to the city to enact its zoning ordinance (P. L., c. 42, ss. 48-68), is constitutional. Sundeen v. Rogers, 83 N.H. 253. The plaintiff does not dispute this but contends that the city failed to act in accordance with the authority given to it by the legislature when it returned the plaintiff's property to the zone in which it lay when he bought it after, at his request, it had been legally placed in a zone where less restricted uses were permitted.
It is not suggested that the zoning ordinance of the city of Keene failed to provide "a comprehensive plan," (s. 50), or that it was not "uniform for each class or kind of buildings throughout each district," (s. 49), or that the procedure required by section 51 was disregarded. The position taken by the plaintiff is that, in view of the nature and extent of the action which he took in relation to his property on the strength of the first amendment to the zoning ordinance, the second one contravened section 50 of the enabling act because, in the first place, that amendment cannot be found to have been "made with reasonable consideration" for his rights, and, in the second place, because it amounted to the regulation of an "existing use" of his property.
The power of the city to amend or repeal its zoning ordinance is expressly granted. s. 52. But this does not mean that the power of amendment is unlimited. This power, by force of the statute which creates it, must be exercised reasonably, and its exercise is also limited by the general rule that governmental action under the police power may not be arbitrary or unreasonably interfere with constitutional rights. Woolf v. Fuller, 87 N.H. 64, 68, and cases cited.
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. 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 to the ordinance placing his property in a semi-residence district was that he removed "some shrubbery and cut down a few trees." The evidence discloses that these trees were two in number, one "probably eight inches through . . . and the other about four," and that the shrubbery was "on the drive coming in." Its nature and extent do not appear. But, whatever this may have been, the plaintiff's acts were only of a preparatory nature. They could not have involved great expense, and, in relation to the cost of erecting and equipping a filling station, they were clearly insignificant.
The plaintiff's other action in relation to his land which he took upon the strength of the first change in the zoning ordinance consisted in his negotiations for and his execution of the lease to the Sinclair Refining Company. But, at the time when the city returned the plaintiff's property to the zone in which it lay when he bought it, this lease had not been signed by the lessee. There being no evidence that its provisions had then been in any way accepted by the latter, (35 C. J. 1152), it follows that when this change in the zoning law was made no rights had accrued under the lease. It did not then bind the plaintiff nor did it obligate the lessee to him. It was wholly without legal effect.
From the foregoing it is evident that what the plaintiff did in relation to his land upon the strength of the amendment to the zoning ordinance which placed that land in a less restricted district was trivial in character. It consisted only in trifling changes upon the land itself and negotiations for a lease which, at the time of the change in the ordinance, had not matured into a binding obligation. Such conduct on the part of the plaintiff provides no basis for a finding in his favor. It fully justifies the court in dismissing his bill.
This conclusion renders it unnecessary to consider either the question of the sufficiency of the evidence to support the court's finding of fraud or the question of the legal effect of that fraud if properly found. This is for the reason that, even though innocent of any fraud, he has made out no case for relief.
Since the city acted within its rights in returning the plaintiff's property to a zone in which the erection and operation of filling stations is forbidden, we need not decide either the questions arising out of the granting and revocation of the plaintiff's permit to store petroleum products upon his premises or the question of the city's right to restrict the plaintiff's means of access to his premises over the sidewalk.
Exception overruled.
All concurred.