Summary
describing function of writ of mandamus and adding that mandamus does not lie where any other adequate relief exists
Summary of this case from Petition of DeanOpinion
No. 4950.
Argued November 7, 1961.
Decided January 29, 1962.
1. Mandamus is an extraordinary remedy to be granted only when the plaintiff has a clear and apparent right to the relief sought and where there is no other adequate remedy available.
2. Under the provisions of the zoning ordinance of Manchester (ss. 13, 19), consistent with the statute (RSA 31:88), the superintendent of buildings has discretionary authority to decide whether there is a zoning ordinance violation so that he should take enforcement action, and his determination that no occasion exists for the taking of action will not be reversed on mandamus unless made arbitrarily or in bad faith.
3. The remedy of owners of property aggrieved by the issuance of a permit for the alteration of a building owned by another on adjoining property and devoted to a nonconforming use in an area zoned as an apartment house district, and by the refusal of the superintendent of buildings to enforce the city zoning ordinance, is by appeal to the zoning board of adjustment and not by mandamus or injunctive proceedings against the superintendent.
Petition for a writ of mandamus and for an injunction wherein the plaintiffs Maurice Bois and his wife Yeteve sought to compel the defendant William L. Cullity, superintendent of public buildings of the city of Manchester, to order the defendants R. C. Peabody Co., Inc. and Seven Twenty Union Street, Inc. to cease and desist from altering the premises at 720 Union Street. The plaintiffs also sought an injunction restraining the Peabody Company and Union Street Company from altering the premises at 720 Union Street and from introducing any new business at this location.
The plaintiffs are the owners of the real estate located at 715 Union Street, where they reside, approximately across from 720 Union Street. The defendant Peabody Company is the owner of a business which is located at 720 Union Street, and the Union Street Corporation is the owner of the premises located at that address. The real estate of the plaintiffs and the defendants is in the same apartment house district as zoned by the zoning commission of the city. The property located at 720 Union Street was being used for a nonconforming use at the time that the city enacted its zoning ordinance establishing this area as an apartment house district. At the time of the trial, all of the alterations that were the subject of the petition had been completed.
The case was tried by the Court, which took a view, made certain findings of fact and rulings of law, and denied the relief sought by the plaintiffs. Both parties excepted to the introduction and exclusion of certain evidence., to the Court's findings and rulings, to its denial of certain requests for findings and rulings, and to portions of the decree. The Court made the following material findings of fact and rulings of law:
"The petitioners' real estate approximately faces the premises at 720 Union Street and both the petitioners' premises and those at 720 Union Street are in the same apartment house district as zoned by the Zoning Commission of the City of Manchester.
"The premises located at 720 Union Street were being used for a nonconforming use at the time that the City of Manchester enacted its zoning ordinance and established this area as an apartment house district.
"On November 30, 1953, the then owners of 720 Union Street petitioned the Board of Adjustment of the City of Manchester for a change in the use of said property and were granted permission to `change the use of building from automobile paint shop and automobile body straightening shop to plumbing shop and plumbing supply showroom'.
"On or about June 23, 1959, the petitionee, Seven Twenty Union Street, Inc., applied for a building permit from the City of Manchester to build an office building on 720 Union Street. The Superintendent of Public Buildings denied said application on the ground `that he had no authority to grant same'. The petitionees appealed to the Board of Adjustment on the ground that additional office space was required to consolidate the offices of the Granite State Alarm, Inc., and the telephone answering service with the main office of R. C. Peabody Co., Inc. On August 3, 1959, said appeal was dismissed by the Board of Adjustment after a hearing on the merits.
"On January 12, 1960, the petitionees, R. C. Peabody Co., Inc., and Seven Twenty Union Street, Inc., applied for a building permit to replace certain wood beams with steel beams, stating in said application that the intended use of the premises was as follows: `Building to be occupied for plumbing warehouse and offices'. Said application was granted.
"January 15, 1960, R. C. Peabody Co., Inc., and Seven Twenty Union Street, Inc., applied for and received permission to alter its building into office(s) as per plan on file.
"The building at 720 Union Street has been altered by the providing of office space; by changing the upper part of the front of said building; by an increase in the window space on the front of the building; by installing partitions within the building; by replacing two wooden support beams with steel beams; and by various other small repairs or changes.
"R. C. Peabody Co., Inc., Seven Twenty Union Street, Inc., New Hampshire York Company and Granite State Alarm, Inc., are all owned and controlled by the same individuals.
"At the time of the filing of this petition there can be no doubt that the permitted use of the building at 720 Union Street was that of a plumbing shop and plumbing show room. The New Hampshire York Company has used the premises since April, 1957, in furtherance of its business as that of installing and providing air conditioner apparatus and equipment. The premises now provides quarters for a business designated as Granite State Alarm, Inc., and also for a firm engaged in a telephone answering service.
"A determination as to whether or not the three businesses above referred to are being carried on in violation of the zoning ordinance of the City of Manchester has not been made by any proceeding before the Zoning Board of Adjustment of the City.
"A suggestion that the defendant, Cullity, has acted arbitrarily was made on the grounds that he ignored the advice of the City Solicitor and that a close relative was employed by R. C. Peabody Co., Inc.
"The Court rules that mandamus does not lie to compel the action requested by the petitioners of the defendant, Cullity. The petition as to the defendant, Cullity, and the defendant, City of Manchester, is dismissed.
"The petitioners ask that an injunction issue against the defendants, R. C. Peabody Co., Inc., and Seven Twenty Union Street, Inc., prohibiting the use of the premises by any businesses or business other than the plumbing business of R. C. Peabody Co., Inc.
"This relief is asked for on the grounds that said uses complained of are in violation of the city zoning ordinance and said violation, if continued, will cause petitioners to suffer irreparable damages and will seriously depreciate the value of their real estate and will be generally objectionable to the neighborhood.
"The Court finds that any multiplication of use of the involved premises by the defendants in addition to the business of R. C. Peabody Co., Inc., does not constitute a public or private nuisance per se. The Court finds as a fact that the uses complained of do not constitute either a public or private nuisance.
"The Court finds, on all the evidence, that the petitioners have suffered no damages by reason of the uses complained of and that said uses will in no way affect the value of petitioners' real estate. It is found that the alterations made on the defendants' real estate have resulted in a general improvement in its appearance.
"Since it appears the petitioners have suffered no injury, and will not suffer injury, as found above, the Court rules they have no cause of action as private individuals. The request for an injunction is denied."
Further facts appear in the opinion.
Transferred by Leahy, C. J.
Emile R. Bussiere (by brief and orally), for the plaintiffs.
J. Francis Roche, city solicitor and Booth, Wadleigh, Langdell, Starr Peters and Robert F. McGinnis (Mr. McGinnis orally), for the defendants.
There are two main issues here, first, whether mandamus lies against the defendant Cullity and the city of Manchester to compel Cullity, the superintendent of public buildings, to order the defendants to cease from altering their premises. Second, whether the defendants R. C. Peabody Co., Inc. and Seven Twenty Union Street, Inc. should be restrained from altering the premises at 720 Union Street and from introducing any new businesses there.
As to the first question, it is the law that mandamus is an extraordinary remedy which is granted "only when the plaintiff has a clear and apparent right" to the relief requested. Segre v. Ring, 102 N.H. 556, 557. Where any other adequate relief is available, mandamus does not lie. Carrick v. Langtry, 99 N.H. 251, 253.
In the case before us, section 13 of the Manchester zoning ordinance imposes upon the superintendent of buildings the duty "to enforce the provisions of this ordinance in manner and form and with powers similar to those practiced or provided under the Building Code of the City . . . Upon any well founded information in writing from any person aggrieved that the provisions of this ordinance are being violated or upon his own initiative, the Superintendent of Buildings shall inform the City Solicitor who shall take immediate steps to enforce the provisions of this ordinance by applying for an injunction in the Superior Court or by any other appropriate legal action."
Section 19 of the building code, in describing the powers of the superintendent, states that he "shall have the authority to stop the construction . . . of any alterations or repairs of any building, within the city, when the same is being done . . . in violation of this code or any ordinance of this city, and to order . . . any and all persons . . . to stop and desist therefrom."
These provisions for enforcement, which are consistent with the enabling act (RSA 31:88), make it obvious that the superintendent is not compelled to issue a stop order merely because someone complains, but that he is vested with discretion to decide whether there is a violation so that he should take action. Carrick v. Langtry, 99 N.H. 251, 253. Since the superintendent has determined here that there was no occasion for him to act, we will not reverse his ruling on mandamus in the absence of a finding that he acted arbitrarily or in bad faith. Id., 253.
There is no allegation in the pleadings that the defendant Cullity acted in bad faith or arbitrarily. Although there was some intimation by the plaintiffs during the trial that he acted arbitrarily, the Court denied a request by the plaintiffs that the defendant "intentionally violated his duties," and by its ruling that mandamus did not lie impliedly found this defendant's action was not arbitrary or lacking in good faith. In the present state of the record, the plaintiffs' exception to the dismissal of the petition for mandamus as against the defendant, superintendent of buildings and the city of Manchester, is overruled.
The question whether an order should have issued restraining the defendants Peabody Company, Inc. and Seven Twenty Union Street, Inc. from altering the premises and introducing new businesses there is a difficult one. The Court found that the uses complained of were not nuisances per se, nor were they public or private nuisances. It also found that the alterations had improved the appearance of the property, that the value of the plaintiffs' real estate was in no way depreciated, and that they neither had nor would suffer injury. It ruled that "since . . . the petitionees have suffered no injury, and will not suffer injury . . . they have no cause of action as private individuals. . . ." and denied their request for an injunction.
The zoning board of adjustment has never passed on the question of whether the defendants have violated the zoning ordinance. The Trial Court noted this fact and carefully restricted its decision to the issue of whether the plaintiffs' rights had been invaded by the defendants creating a common-law nuisance. It found that no nuisance had been committed.
The plaintiffs' remedy in the situation presented was by an appeal to the zoning board from the issuance of the permit for an alteration of the premises or from the refusal of the defendant Cullity to enforce the ordinance. Carrick v. Langtry, 99 N.H. 251; RSA 31:69, 72. Until they did so, it would have been improper for the Trial Court to have passed upon these questions. Carrick v. Langtry, supra, 254.
Until the parties have brought the matter before the zoning board it cannot be determined whether the defendants have violated the ordinance. It follows under the principles enunciated above that the order must be
Exceptions overruled.
All concurred.