Opinion
No. 3497.
Decided June 6, 1945.
Where the evidence justified a finding by the trial Court that the proposed erection of a building within a restricted residence district of a city would constitute a fire hazard, result in undue congestion and be detrimental to the public health and safety in that district, the petition was properly denied. Whether a motion to amend pleadings should be granted after a decree has been entered is discretionary with the trial Court. In a review by the Superior Court of a decision of the zoning board of adjustment, it is discretionary with the trial Court to admit testimony of members of that board as experts.
BILL IN EQUITY, and petition with amendments brought by the plaintiff, a landowner, under the provisions of R. L., c. 51, s. 64, to review a decision of the zoning board of adjustment, acting under the zoning ordinance of the city of Nashua.
Hearing by the Court, who took a view of the premises, and filed the following findings of fact, rulings of law and decree.
FINDINGS OF FACT
"The court finds that the property is located at the rear of 85 West Hollis Street, Nashua, in an old, rather congested district occupied largely by wooden frame houses, tenements, and a few small stores. It is classified as a C-Residence District under the zoning ordinance. A double line of railroad tracks runs close to the north boundary of the property in question, which is a wooden building in a dilapidated condition with a cellar under most of it. The timbers and frame, however, are good. The dimensions of the structure are approximately 30 by 20 feet.
"At the time the plaintiff purchased the property it was used as a bake shop. At present an automobile is kept in it.
"Any one of the erections proposed by the plaintiff as set forth in his bill and amendments would not have sufficient yardage by a substantial margin, no matter which way it was faced, according to the zoning ordinance for a C-Residence District. The railroad right of way extends to within a very few feet of the north side of the building.
"While it is true that a substantial number of other houses located in that area do not comply with the zoning ordinance, it appears that they were in existence before the ordinance was passed. The building in question, as it now exists, is somewhat of a fire hazard and is of little or no use to any one, but it could be razed at little cost.
"The lot in question, Lot 85, has 3,235 square feet, which would give the plaintiff under the zoning regulations the right to a little less than three apartments on this lot, which already contains four apartments and one store. It also appears that the plaintiff owns the land and buildings located at 87 West Hollis Street, which adjoins Lot 85. The area of this lot is 4,290 square feet, which, added to that of Lot 85, gives a total of 7,525 square feet for both lots. According to the zoning regulations, this would give the plaintiff the right to six apartments on the entire area. Already there are six apartments and two stores on the area.
"The plaintiff is now making such use of the property that enforcement of the provisions of the zoning ordinance will not result in unnecessary hardship to him.
"The court believes on all the evidence that any one of the erections proposed by the plaintiff in his bill and amendments thereto would constitute a fire hazard, result in undue congestion, and be detrimental to the public health and safety in the district in question.
RULINGS OF LAW
"On the above findings of fact the court rules that justice requires that the decision of the Zoning Board of Adjustment be approved and the plaintiff's bill be dismissed without costs.
"In so far as the testimony of John E. Burnham, Henry A. Lagasse, and Lester R. Hill, the three members of the Zoning Board of Adjustment who testified, may be regarded as expressing any opinion as to the law, it was disregarded by the court in making his findings.
DECREE
"Plaintiff's bill dismissed without costs."
Plaintiff excepted to the dismissal of his bill; to the denial of his motion to further amend his bill, made after the filing of the above; and to other exceptions appearing in the transcript. A bill of exceptions was allowed by Blandin, J.
Hamblett Hamblett, for the plaintiff.
Edward J. Lampron, for the defendant.
The findings of the Court are amply supported by and fully justified on the evidence. See Sundeen v. Rogers, 83 N.H. 253; Stone v. Cray, 89 N.H. 483; Vogel v. Board c. of Manchester, 92 N.H. 195. It certainly cannot be said that no reasonable person could have reached such a conclusion. It would almost seem the contrary should be true; to wit, that no reasonable person would have reached a different conclusion.
Plaintiff's exception to the denial of his motion to further amend his bill after the filing of the Court's findings and rulings avails him nothing. It was within the discretion of the Presiding Justice to either grant or deny such a motion after a decree had been entered. There was no error in the denial of the motion in the instant case, nor do we discover any error in the Court's rulings of law.
There was no error in admitting testimony of three members of the zoning board as experts. This was entirely within the discretion of the Presiding Justice, and no abuse thereof is apparent.
The question of value was of very little consequence, if any, and the Court placed no reliance on that testimony.
Exceptions overruled.
All concurred.