163 A.2d 6

EUGENE R. ACKLEY a. v. NASHUA a.

No. 4825.Supreme Court of New Hampshire Hillsborough.Argued May 3, 1960.
Decided July 19, 1960.

1. The Nashua zoning ordinance (Art. IX, s. 45-A (5)) requiring applications for variances in the use of land or structures to be accompanied by the written consent of a certain percentage of abutting owners within a stated distance applies to changes and extensions of nonconforming uses and structures as well as to variances and use variances.

2. However, municipalities are not authorized under the enabling legislation (RSA 31:69, 71, 72) to impose such consent requirements as a condition precedent to the granting of extensions of nonconforming uses.

APPEAL, from a decision of the zoning board of adjustment of the city of Nashua. RSA 31:77. The appeal is brought by the plaintiffs, neighboring property owners of the defendant George J. Pappademas, and challenges the granting by the city of Nashua to him of an extension of a nonconforming use to add an underground 7500 gallon fuel oil tank and to erect a comparatively small addition to his cleaning, pressing and laundry establishment in a C residence district. Pursuant to an agreed statement of facts, and prior to a hearing on the merits, the Court (Leahy, C. J.) transferred without ruling certain questions for consideration by this court which are as follows: “Under the Enabling Act R.S.A. 31:60
through 31:89, is the City of Nashua empowered to adopt an ordinance which requires the Nashua Zoning Board of Adjustment, as a condition precedent to granting a hearing for an extension of an existing non-conforming use, to comply with the consent provisions of Article IX, Section 45-A (5)? Does said Article IX, Section 45-A (5) include in its meaning of the words `variance’ and `use variance’ an extension of an existing non-conforming use as applied for in this case?”

The agreed statement of facts is as follows:

“2. The plaintiffs are owners of real properties situate on Pine, Palm, Ross and Lovewell Streets, in said Nashua; certain of the plaintiffs are owners of real property abutting the property affected by the decision of the Zoning Board of Adjustment or are owners of property located within two hundred (200) feet of said property; the property affected by the decision of the Zoning Board of

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Adjustment is owned by George J. Pappademas or Colonial Valet, Inc. and is located on the southeast corner of Pine and Lovewell Streets and known as 136 Pine Street.

“3. The use to which the said premises at #136 Pine Street has been put, since April 4, 1947, i.e., cleaning, pressing and laundry establishment, is a use originally permitted by the Zoning Board of Adjustment by a decision made on April 4, 1947, granting a variance from the use regulations allowed under the Zoning Ordinance adopted in June, 1930.

“4. On February 28, 1953 and again on May 1, 1957, the Zoning Board of Adjustment permitted certain further changes to be made in the structure of the buildings, upon the request of said George J. Pappademas.

“5. The Zoning Ordinance of the City of Nashua now in force, (entitled `An Ordinance Amending Part II of Chapter VIII under the Revised Ordinances of 1950, entitled “Zoning and Regulations”‘ passed by the Board of Aldermen on September 10, 1957, and approved by the Mayor on September 11, 1957, a copy of which Zoning Ordinance is to be made a part of this Agreed Statement of Facts), does not permit the land to be used and the building or structure to be erected, altered or used for the purposes for which said premises at 136 Pine Street are now being used, said premises being located in a `C’ Residence section on the map of the. Zoning Ordinance. (Section 9 of the Zoning Ordinance) unless a variation should be granted by the Zoning Board of Adjustment or unless a lawful use previously existed. (Section 21 of the Zoning Ordinance).

“6. On February 25, 1958, George J. Pappademas applied to the Zoning Board of Adjustment for permission to add an underground seventy-five hundred (7500) gallon fuel oil tank and to erect an addition to the buildings, said addition measuring 25′ x 38.5′ x 42′ x 41′; this permission was denied.

“7. Said application was not accompanied by the written consent of any of the owners, (as of record at the Assessor’s Office and the City Engineer’s Office) of real property situated within two hundred (200) feet of any of the boundaries of the property affected by the decision of the Zoning Board of Adjustment.

“8. On March 4, 1958, upon rehearing, the Zoning Board of Adjustment reversed its previous decision and granted said application of George J. Pappademas; said decision permitted the addition of said tank and of said building as requested. Whereupon, the plaintiffs, on March 21, 1958, seasonably filed with said Zoning

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Board of Adjustment a motion for rehearing, said motion was denied on March 28, 1958, and, in accordance with New Hampshire Revised Statutes Annotated, Chapter 31, Section 77, an appeal was seasonably entered on April 3, 1958, in this Court.

“9. The plaintiffs contend that under said Zoning Ordinance, (Section 45-A-5) any application for a non-conforming use of land or of a structure must be accompanied by the written consent of the owners (as of record at the Assessor’s Office and the City Engineer’s Office) of sixty (60%) per cent of all real property situated within two hundred (200) feet of any of the boundaries of the lot for which the use variance is sought; and, consequently, since such written consent was lacking in this case, the Zoning Board of Adjustment should not have heard the Petitioner, George J. Pappademas, upon this application, and should not have granted the application requested.

“10. The defendant City of Nashua and said George J. Pappademas contend that, the said application of George J. Pappademas, dated February 25, 1958, was not required to be accompanied by the written consent of the owners (as of record at the Assessor’s Office and the City Engineer’s Office) of sixty (60%) per cent of all real property situated within two hundred (200) feet of any of the boundaries of the lot involved, that in its decision of March 4, 1958, said Zoning Board of Adjustment did not grant a variance but did grant a further extension of the non-conforming use previously permitted under the decisions of said Zoning Board previously made, and that consequently, the Zoning Board of Adjustment acted properly in hearing this application on its merits and in granting the Petitioner’s application.”

Clancy O’Neill (Mr. O’Neill orally), for the plaintiffs.

Leo R. Lesieur for the defendant city of Nashua.

Harkaway Ryan (Mr. Ryan orally), for the defendant George J. Pappademas.

KENISON, C. J.

We first consider the following question transferred without ruling: “Does said Article IX, Section 45-A (5) [of the zoning ordinance of the city of Nashua] include in its meaning of the words `variance’ and `use variance’ an extension of an existing non-conforming use as applied for in this case?”

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That provision of the zoning ordinance reads as follows: “Any application for a variance in the use of land or a structure shall be accompanied by the written consent of the owners (as of record at the Assessor’s Office and the City Engineer’s Office) of sixty (60) per cent of all real property situated within two hundred (200) feet of any of the boundaries of the lot for which the use variance is sought.”

It is the general policy of zoning to carefully limit the extension and enlargement of nonconforming uses. 2 Rathkopf, The Law of Zoning and Planning, c. 62 (1956); 1 Yokley, Zoning Law and Practice (2d ed. 1953) s. 153; Bassett, Zoning, p. 109 (1940). This policy has been effectuated in this state by the strict construction of provisions and decisions which permit the expansion and enlargement of nonconforming uses. Keene v. Blood, 101 N.H. 466; Brady v. Keene, 90 N.H. 99. See Hudson v. Paradise, 101 N.H. 389. Since the extension or enlargement of a nonconforming use may be more detrimental to zoning than a variance, it has generally been held that a nonconforming use stands in no preferred position. Vlahos Realty Co. v. Little Boar’s Head District, 101 N.H. 460. Consequently most decisions that have passed on the point have held that the extension or enlargement of a nonconforming use is to be treated as a variance within the provisions of zoning ordinances. Monmouth Lumber Co. v. Ocean Township, 9 N.J. 64, 77; McMahon v. Board of Zoning Appeals, 140 Conn. 433; Amero v. Board of Appeal of Gloucester, 283 Mass. 45; Grundlehner v. Dangler, 29 N.J. 256. Despite the fact that a literal interpretation of s. 39-E of the ordinance would seem to provide for the extension of any nonconforming use, we consider that the prohibition of s. 4-A and that of s. 9 limiting the alteration of uses and structures in C residence districts to specific uses only, operates as a limitation upon s. 39-E unless a variance under s. 45 (6) is found to be warranted. Thus extension of a nonconforming use is prohibited in the absence of permission from the board. We conclude that Article IX, s. 45-A (5) of the Nashua city ordinance applies to changes and extensions of nonconforming uses and structures as well as to variances and use variances. Therefore, the answer to this transferred question is yes.

The remaining question transferred without ruling reads as follows: “Under the Enabling Act R.S.A. 31:60 through 31:89, is the City of Nashua empowered to adopt an ordinance which requires the Nashua Zoning Board of Adjustment, as a condition precedent

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to granting a hearing for an extension of an existing non-conforming use, to comply with the consent provisions of Article IX, Section 45-A (5)?” In Robwood Adv. Asso. v. Nashua, 102 N.H. 215, 221, the decision was by an evenly divided court, one member not sitting. Two members of the court were of the opinion that the enabling act (RSA 31:69, 71, 72) did not authorize the imposition of the consent requirements contained in Article IX, Section 45-A (5) of the Nashua zoning ordinance where a variance is sought. Since that case a majority of the full court are now of the same opinion. Inasmuch as an extension of a nonconforming use is to be treated in the same category as a variance, it likewise follows that the enabling act does not authorize the imposition of the consent requirements contained in the Nashua zoning ordinance as applied to nonconforming uses. This transferred question is therefore answered in the negative.

The action of the zoning board of adjustment of the city of Nashua stands on its own footing without regard to the consent provisions of Article IX, Section 45-A (5). See Fortuna v. Zoning Board of Manchester, 95 N.H. 211; note, Nonconforming Uses: A Rationale and An Approach, 102 U. of Pa. L. Rev. 91 (1953).

Remanded.

DUNCAN and LAMPRON, JJ., concurred; BLANDIN and WHEELER, JJ., dissented.

BLANDIN, J., dissenting:

For the reasons expressed in Robwood Adv. Asso. v. Nashua, 102 N.H. 215, 218, I dissent from that portion of the opinion only which relates to the validity of the consent provisions contained in Article IX, Section 45-A (5) of the Nashua zoning ordinance. WHEELER, J., concurred in this dissent.

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