Opinion
No. 5157.
Argued October 2, 1963.
Decided December 3, 1963.
1. The Superior Court in the exercise of its equity jurisdiction may compel compliance with a valid town ordinance requiring residences to be set back a minimum distance from any public highway even though not a part of a comprehensive zoning ordinance and irrespective of whether or not a violation thereof constitutes a public nuisance.
Petition by the town of Jaffrey seeking a mandatory injunction to enforce compliance with an ordinance of the town requiring residences to be set back a minimum distance from any public highway. Following transfer of the case to this court upon an agreed statement of facts (Jaffrey v. Heffernan, 104 N.H. 249), the defendants were afforded a further hearing in the Superior Court and were thereafter ordered to comply with the ordinance. They thereupon moved for judgment notwithstanding the decree, upon the ground that there was no evidence that their structure constitutes a public nuisance. To the denial of this motion and to the decree the defendants seasonably excepted. All questions of law presented by the exceptions were reserved and transferred by the Presiding Justice (Grimes, J.)
William D. Tribble and David J. KillKelley (Mr. Tribble orally), for the plaintiff.
Maurice M. Blodgett (by brief and orally), for the defendants Heffernan.
Kenneth A. Brighton and Richard R. Fernald (Mr. Fernald orally), for Ginsburg, Wheeler and Lundberg, as amici curiae.
In support of their motion for judgment notwithstanding the decree, the defendants rely upon Mayor v. Smyth, 64 N.H. 380 which they assert is controlling and founded upon established principles of equity. See also, Ventnor City v. Fulmer, 92 N.J. Eq. 478, aff'd 93 N.J. Eq. 660; Annot. 91 A.L.R. 315, 322. In Mayor v. Smyth, supra, 383, the court dismissed a bill in equity seeking to enjoin violation of an ordinance designed to prevent the spread of fire, which required that exterior alterations of existing buildings should be of fireproof material. It appeared that the changes proposed by the defendant in the case would neither increase nor diminish the danger from fire. Since there was no evidence that the alterations would be a nuisance in fact or cause irreparable damage, the court found it unnecessary to determine the validity of the ordinance, and declined to exercise jurisdiction merely "to restrain or suppress the commission of . . . [a misdemeanor]."
The plaintiff in the case before us points out that the ordinance which it seeks to enforce contains no penalty for its violation, and that the town is without adequate legal remedy. See N.H. Board v. Company, 90 N.H. 368, 373.
On the former transfer, we concluded that "on the record before us the petition should be granted." Jaffrey v. Heffernan, supra, 254. See Faulkner v. Keene, 85 N.H. 147, 153. The record on this transfer does not differ in any material respect from the previous record.
Cases are commonplace in which equity powers have been utilized on behalf of municipalities to compel compliance with valid zoning ordinances, even though penalties are provided for violation, and the violation is not shown to constitute a public nuisance. Mayor c. of Alpine Borough v. Brewster, 7 N.J. 42; Lincoln v. Giles, 317 Mass. 185; Lexington v. Bean, 272 Mass. 547; Darien v. Webb, 115 Conn. 581; Garfield v. Young, 340 Mich. 616; Boise City v. Better Homes, 72 Idaho 441, 445; Lake Bluff v. Horne, 24 Ill. App.2d 343. No reason is apparent why like principles should not apply to the enforcement of a set-back ordinance, such as is here involved, even though not a part of a comprehensive zoning ordinance. See McCavic v. DeLuca, 233 Minn. 372.
We find no error in the rulings of the Trial Court.
Exceptions overruled.
All concurred.