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.
Such an undertaking is neither arbitrary nor unreasonable, and the constitutionality of single-family zoning restrictions have been generally upheld throughout the country as bearing a substantial relationship to the health, safety, morals and general welfare of the community. Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926); Miller v. Board of Public Works of Los Angeles, 195 Cal. 477, 234 P. 381 (1925), error dismissed, 273 U.S. 781 (1927); Minkus v. Pond, 326 Ill. 467, 158 N.E. 121 (1927); Locatelli v. City of Medford, 287 Mass. 560, 192 N.E. 57 (1934); Sullivan v. Anglo-American Investment Trust, Inc., 89 N.H. 112, 193 A. 225 (1937); Collins v. Board of Adjustment of Margate City, 3 N.J. 200, 69 A.2d 708 (1949). Indeed, the question cannot be considered an open one in Pennsylvania. Jennings' Appeal, 330 Pa. 154, 160, 198 A. 621 (1938).
Moreover, the mere existence of unusually large houses in a one-family residence district, irrespective of the use to which the houses are put, poses a danger of "overcrowding of land," the avoidance of which is a stated objective of the town's zoning ordinance. See TOWN OF NEW DURHAM ZONING AND LAND USE ORDINANCE, art. I; cf. Sullivan v. Investment Trust Co., 89 N.H. 112, 116, 193 A. 225, 227 (1937). We conclude that under the zoning ordinance, classification as a one- or multiple-family dwelling hinges on the dwelling's adaptability for use, as adjudged by the number of separate areas within containing a bath, toilet, and kitchen that could be used by one person or family.
Nor can six kitchens and six bathrooms be considered "accessory uses customarily incident" to the use of premises as a one-family dwelling or detached two-family dwelling permitted by the 1937 ordinance. Sullivan v. Investment Trust Co., 89 N.H. 112, 193 A. 225 (1937). Accordingly the fourth question transferred by the trial court is answered in the negative.
Similar activities were shown by the evidence to be customarily incident to the use of other residential premises in the city by persons engaged in the same or similar trades. Cf. Sullivan v. Investment Trust Co., 89 N.H. 112, 116. If in fact some of these were "non-conforming" uses because made before adoption of the ordinance they nevertheless served to prove the local custom. See Jantausch v. Borough Verona, 41 N.J. Super. 89, 102; aff'd 24 N.J. 326.
Subsequent provisions of the article contain specific building restrictions not in issue in this case. The ordinance, which is loosely drawn, contains no provisions or restrictions with respect to garages, or accessory uses in any district. Cf. Sullivan v. Investment Trust Co., 89 N.H. 112. While the ordinance must be interpreted to require that uses established in a residential district shall be primarily residential except as otherwise provided, it discloses no purpose to prohibit the construction and use of private garages and the evidence indicates that such garages are customarily to be found in the district involved in the appeal. The master ruled that the board committed no error of law because the ordinance "cannot be interpreted as permitting the construction of a three-car, 36' x 30' garage unattached to a dwelling to be used `for the storage of trucks and/or private cars.'"
It seems clear that operation of a public dining room or restaurant is not permitted by the ordinance either as a "dwelling" use, which is a "home or residence" use (s. 11), or as an "accessory use customarily incident" to such a use. Cf. Sullivan v. Investment Trust Co., 89 N.H. 112, 116. The serving of meals to persons resident in a hotel whether "permanently or transiently" (s. 11) like the serving of meals to residents of a dwelling is permitted.
The board of adjustment of the city of Portsmouth has granted a variance upon appeal to it from an adverse decision by the, building inspector and the Superior Court has dismissed the appeal from the board's decision. The matter being properly before us (Stone v. Cray, 89. N.H. 483, 486, 487; Sullivan v. Trust Company, 89 N.H. 112) the basic question is whether the Court erred as a matter of law in so doing. We do not believe that it did for it seems to us that reasonable men upon the evidence here could have reached the same conclusion as did the Trial Court. Fortuna v. Manchester, 95 N.H. 211, 213. Chapter 278 of Laws 1949 materially changes the procedure on appeals from the zoning board.
His dwelling house and yard are not sufficiently large to support the uses which he desires to make, without causing the overcrowding of land and increased fire hazard which the ordinance is designed to prevent. R. L., c. 51, s. 51; Sullivan v. Company, 89 N.H. 112, 115. Section 10 (c) of the ordinance lays down standards of building content and yard space which even the present use of the plaintiff's property does not meet. The standards are not shown to be unreasonable.
This contention is sustained. See Sundeen v. Rogers, 83 N.H. 253, 258; Sullivan v. Company, 89 N.H. 112, 114; Brady v. Keene, ante, 99; P. L., c. 42, s. 48. See, also, Dowsey v. Kensington, 257 N.Y. 221.