Opinion
No. 4354.
Argued October 6, 1954.
Decided October 29, 1954.
A city building inspector, in determining whether or not a commercial use of a building in a zoned single residence district is permissible as a continuance of a nonconforming use, acts in a quasi-judicial capacity, and his discretion if properly exercised in good faith is not subject to review or reversal on mandamus.
Mandamus may not be invoked where a statutory remedy plain and specific in its nature and fully adequate to redress the grievance has been provided.
The statutory provision for appeals to the zoning board of adjustment by those aggrieved by any decision of the administrative officer and the further provision for appeals to the Superior Court from the decision of that board afford adequate relief for grievances without resort to the extraordinary remedy of mandamus.
Moreover, in accordance with the zoning statute, any alleged errors on the part of the building inspector should first be passed upon by the local board of adjustment charged with supervising administration of the zoning ordinances so that any appeal to the court may carry with it the benefit of the board's judgment and the statutory presumption in favor of that judgment.
PETITION, for a writ of mandamus, to require the defendant as inspector of buildings for the city of Keene, to order "the removal of [a] zoning violation" by the intervenor Henry F. Silver, and his wife or either of them, and in case of their noncompliance, to "report the case to the city solicitor for further action." The petition was brought after the plaintiffs had notified the defendant in writing that use of the Silvers' premises on Court Street for a store violated the Keene zoning ordinance, and the defendant had in turn advised the plaintiffs in writing that according to his "interpretation of the situation" the use being made was a nonconforming use, permitted "under certain restrictions relative to the existing size of the building." The plaintiffs are respectively owner and tenant of property on Court Street directly opposite the Silver property.
Trial by the Court (Wheeler, C.J.). The defendant's motion to dismiss was denied, and the Court ruled that mandamus would lie. It found that the premises in question had been used as a store before the enactment of the original zoning ordinance in 1926, and thereafter until 1945; but that from 1945 to 1951 "the premises ceased to be used as a grocery store." The Court further found "so far as it is a question of fact" and ruled "so far as it is a question of law that there was an abandonment of such use and that the nonconforming use cannot now be re-established." Accordingly a decree or judgment was entered for the plaintiffs in accordance with the prayer of their petition. The defendant's bill of exceptions, presenting his exception to the denial of his motions to dismiss and for judgment notwithstanding the verdict as well as other exceptions taken in the course of the hearing, was allowed by the Presiding Justice.
William H. Watson and William H. Watson, Jr. (Mr. William H. Watson, Jr. orally), for the plaintiffs.
Edward J. O'Brien (by brief and orally), for the defendant.
Olson Olson (Mr. Arthur Olson orally), for the intervenor.
The premises on Court Street owned by the various parties are concededly within an area of Keene zoned as a single-residence district, in which use of a building as a grocery store is forbidden unless permissible as a nonconforming use. The ordinance provides that the inspector of buildings shall enforce its provisions, and that when he finds any violation "he shall at once issue an order for the removal of the violation by the party responsible." S. 21 A, C. These provisions are consistent with those of the enabling statute, which provide for enforcement of such an ordinance by "the proper local authorities of the municipality." R. L., c. 51, s. 70.
The defendant maintains that mandamus does not lie to compel him to issue an order forbidding the use made by the intervenor because in acting upon the plaintiffs' representation that the ordinance was being violated he was called upon to exercise discretion; and that his determination that the use was a nonconforming one may not now be reviewed or overturned on mandamus. With this contention we agree.
The plaintiffs' notification raised the question of whether the use of the Court Street premises as a store was permissible because a continuance of a nonconforming use made at the time the original ordinance was adopted, and continuing when the amended ordinance took effect. Ordinance, s. 8. This called for an investigation of the facts, which the defendant evidently made. In determining the question, he acted in a quasi-judicial capacity, being called upon to weigh and draw reasonable deductions from facts disclosed by investigation. Whitney v. Watson, 85 N.H. 238, 241. See Hood Sons v. Boucher, 98 N.H. 399, 402. His discretion upon the subject if properly exercised in good faith was not subject to review or reversal on mandamus. Silverman v. Gagnon, 74 N.H. 502, 503; Hart v. Folsom, 70 N.H. 213, 217. It was not open to the Court "to substitute the discretion of the court for that of the [defendant] in whom the statute . . . vests it." Attorney-General v. Littlefield, 78 N.H. 185, 189. There being no suggestion that the defendant acted arbitrarily or without good faith, his decision may not be set aside in this proceeding. Aetna Casualty c. Co. v. Sullivan, 83 N.H. 426, 434; Atwood v. Berry, 87 N.H. 331, 333.
A further reason why mandamus must be denied is found in the zoning statute. Mandamus is "an extraordinary remedy, granted only in cases where the usual modes of procedure and forms of remedy are powerless to afford relief . . . Whenever the statutory remedy is plain and specific in its nature, and fully adequate to redress the grievance . . . mandamus will not lie." State v. Railroad, 62 N.H. 29, 34. See also, Storer Post v. Page, 70 N.H. 280; Manchester v. Furnald, 71 N.H. 153.
R. L., c. 51, s. 59, provides: "Appeals to the [zoning] board of adjustment may be taken by any person aggrieved . . . by any decision of the administrative officer"; and section 62 I of the same chapter empowers the board "to hear and decide appeals where it is alleged there is error in any . . . decision, or determination made by an administrative official in the enforcement . . . of any ordinance. . . ." Identical provisions appear in section 19 of the ordinance itself.
Section 62 IV of the statute (R. L., c. 51) .authorizes the board of adjustment to reverse, affirm, or modify the decision of the officer from which the appeal is taken, and further to "make such . . . decision, as ought to be made." Sections 64 through 69 provide for appeals to the court from decisions of the zoning board of adjustment, and by section 65-c (Laws 1949, c. 278, s. 2) it is provided that upon such appeal "all findings of the board . . . upon all questions of fact properly before it shall be deemed to be prima facie lawful and reasonable."
Thus it is plain that the plaintiffs herein are afforded adequate relief from any erroneous decision on the part of the defendant by an appeal to the board of adjustment. The Legislature intended that any alleged errors should first be passed upon by the local board charged with supervising administration of the ordinance, so that appeals to the court should come before it with the benefit of the judgment of the board, and with the presumptions in favor of that judgment which the statute provides. See Gelinas v. Portsmouth, 97 N.H. 248, 249. Under the circumstances, it was error for the Trial Court to entertain the petition invoking its discretionary jurisdiction in mandamus.
Although the order of the court below must be set aside, it does not follow that the determination made by the defendant was necessarily correct. As to this we express no opinion. Whether a nonconforming use was in fact abandoned or discontinued; whether under this ordinance abandonment or discontinuance operates to terminate the right; or whether a previous use which was not actually being made at the time of enactment of the last amended ordinance in 1948 was intended to be cut off at that time (s. 8), are questions which must be determined in the first instance in accordance with the statutory procedure. The order in this action is
Petition dismissed.
All concurred.