Opinion
No. 5169.
Argued November 5, 1963.
Decided December 30, 1963.
1. Where a zoning ordinance did not expressly provide who may apply for a special exception, action was properly taken upon application of the prospective purchasers as the real parties in interest and without the signatures of the true owners where the owners did not object and the prospective purchasers ultimately became owners of the property.
Appeals from the zoning board of adjustment of the city of Keene alleging violation of the city of Keene zoning ordinances by granting a special exception to Elm City Garden Apartments, Inc., a New Hampshire corporation, for converting certain real estate at 132-134 Washington Street, Keene into five apartments and by granting a special exception to Emile J. Legere of Swanzey for converting certain real estate at 118 Washington Street, Keene into five apartments.
The cases were consolidated for hearing here since the same basic question is raised in both appeals.
At the time Elm City Garden Apartments, Inc. filed its petition with the board of adjustment it did not own the real estate located at 132-134 Washington Street but had entered into a written contract with the conservator of the owner to purchase the premises conditional on favorable action by the board of adjustment. The conservator had knowledge of the petition for exception and did not object to it. His motion to join in the petition was denied by the board. After the order of the board on rehearing, Elm City Garden Apartments, Inc. became the owner of the property.
At the time Emile J. Legere filed his petition with the board of adjustment for a special exception under the zoning ordinance he did not own the premises at 118 Washington Street. Before the petition was filed Legere entered into a written agreement to purchase with Francis W. Palfrey one of the co-owners. The other co-owner did not sign. Both owners had knowledge of the petition for special exception but did not join therein or object to it.
The board of adjustment heard both petitions on the same day and granted a special exception in each case.
Prior to the rehearing Legere became the owner of the real estate and so informed the board of adjustment. After rehearing the board affirmed its original position in each case granting a special exception.
In the Legere case the following questions of law were transferred by the Court (Grimes, J.) without ruling:
"1. Must the owner of real estate sign and file a petition for a special exception under City of Keene zoning ordinances relating to the granting of special exceptions, or may such a petition be signed and filed by someone other than the owner of the real estate?
"2. If the answer to the first question is that only the owner of the real estate may sign and file a petition for a special exception, was the defect corrected when the petitioner became the owner of the real estate prior to re-hearing by the Board of Adjustment?"
In the Elm City Garden Apartments, Inc. case a third question in addition to questions 1 and 2 above was transferred.
"(3) If the answer to the second question is NO, has the issue become a moot question since the original petitioner is now the owner of the premises?"
Cristiano Kromphold (Mr. Joseph T. Cristiano by brief and orally), for the plaintiffs.
Homer S. Bradley, Jr. (by brief and orally), for Emile J. Legere, Elm City Garden Apartments, Inc. and the city of Keene.
The major question presented by both appeals is whether someone other than the owner of the real estate may petition for a special exception under the Keene zoning ordinances.
RSA 31:66 provides that the local legislative body shall provide for the appointment of a board of adjustment and pursuant to the authority of the statute "shall provide that the said board may, in appropriate cases and subject to appropriate conditions and safeguards, make special exceptions to the terms of the ordinance in harmony with its general purpose and intent . . . ."
Pursuant to the enabling act RSA 31:60-89 Keene has adopted a zoning ordinance and among others has adopted provisions for special exceptions (Keene Zoning Ordinances Sec. 50-501) the pertinent provisions of which (par. j) provide that a special exception may be granted if the property meets the following qualifications:
"1. The specific site is an appropriate location for such a use,
"2. The use as developed will not adversely affect the neighborhood,
"3. There will be no nuisance or serious hazard to vehicles or pedestrians,
"4. Adequate and appropriate facilities will be provided for the proper operation of the proposed use."
It is conceded that the zoning ordinance does not expressly provide who may apply for a special exception and the question has not been raised here before. However the plaintiff argues that since the zoning ordinance (50-502) with respect to granting a variance speaks only of the owner of the property it must logically follow that only the owner may apply for a special exception since the difference between the two types of rebel are not great. Stone v. Cray, 89 N.H. 483.
While it is true as we said in Stone, supra, 487, that "in practice sharp distinction between exceptions and variances may not in all cases be readily made . . ." there is a major difference between the two since there is no necessity for a hardship to exist in order to qualify for a special exception. RSA 31:72 II, III. An option holder cannot qualify for a variance since such a petitioner cannot suffer the hardship of the owner, which is one of the necessary conditions of a variance. Conery v. Nashua, 103 N.H. 16, 19.
As pointed out by counsel for the defendants no useful purpose would have been served by requiring the owners' signatures on the petitions. The prospective purchasers were the real parties in interest and the only ones who could furnish the information which the board needed in order to make its decision. Neither owner objected to the petitions for an exception and Legere, before the rehearing, became the owner of the real estate at 118 Washington Street.
We think in the circumstances of these cases the petitioners have standing to apply for special exceptions under the Keene zoning ordinances. Carson v. Board of Appeals of Lexington, 321 Mass. 649. See Annot. 89 A.L.R. 2d 664, 667, 669. In light of the foregoing it is unnecessary to further answer the questions transferred.
Exceptions overruled.
All concurred.