Opinion
No. 4912.
Argued March 7, 1961.
Decided April 4, 1961.
1. The act of a municipality in establishing the boundary between the residential and business zones of the city was not arbitrary or unreasonable for the reason that it preserved a certain area as residential; and the fact that certain individuals derived a benefit therefrom did not as a matter of law render the ordinance invalid.
2. Where property owners acting under a building permit, conditioned upon prior zoning ordinance being held invalid, proceeded to remove loam and erect batter boards preparatory to construction of a supermarket knowing that new action was contemplated by the municipality the following day which would rezone all of their property in a residential zone, the finding was not required as a matter of law that the expenditures they made in proportion to the ultimate cost of the supermarket were of great significance or that they relied implicitly upon the conditional permit, and hence no vested right was acquired.
3. No specific revocation of an outstanding building permit must be contained in a zoning ordinance to render it applicable to property which falls within its scope.
PETITION, for an injunction filed on May 6, 1960, under RSA 31:88, based upon a zoning ordinance, enacted May 3, 1960, to prohibit construction of a supermarket on the defendants' property on Wakefield Street in Rochester.
The parties have agreed upon the following facts:
"Albert E. Barcomb and Lucille M. Barcomb of Rochester, are the owners of certain premises, consisting of a frame dwelling house, garage and land, known as 60 Wakefield Street in Rochester. The Auburn Packing Company, a party in interest under contract to purchase the Barcomb property, made application to the Building Inspector for the City of Rochester, for a permit for the construction of a supermarket on said premises, on March 19, 1958. The Building Inspector denied the permit on the grounds that the area in which the building would be built was zoned as `general residence.' An appeal was taken from his denial of the application and on May 9, 1958, a public hearing was held before the Board of Adjustment for the City of Rochester. At the hearing, the Barcombs reserved the right to challenge the validity of the Zoning Ordinance. Following the hearing, at which all parties for and against the proposed variance were heard, the Board of Adjustment granted a variance to permit the construction.
"Robert D. Marsh and Vera G. Spaulding, interested parties as owners of property in the immediate area, after denial of motion for rehearing made under RSA 31:74-76, appealed from the decision of the Board of Adjustment to the Strafford County Superior Court. The said Barcombs and Auburn Packing Company intervened. After hearing, the: Superior Court over-ruled the Board of Adjustment on the ground that there was insufficient evidence for a finding that the granting of the variance was in the public interest which decision was appealed to the New Hampshire Supreme Court but on June 2, 1960, this appeal was dismissed by intervenors without prejudice before hearing. The intervenors, in their petition to intervene, also challenged the validity of the Zoning Ordinance. A hearing was held before a Master, who found that the ordinance was not legally enacted and was therefore illegal. The Court approved the Master's Report, March 8, 1960. The City of Rochester filed exceptions but the time for perfecting the appeal lapsed on June 13, 1960 after adoption of a new zoning ordinance by the City Council on May 3, 1960.
"The Rochester Planning Board, after working on a new zoning ordinance for nearly a year, submitted its preliminary report to the Rochester City Council at its regular meeting January 5, 1960 . . . The final report of the Planning Board was submitted to the City Council at its regular meeting on March 1, 1960. The final report embodied a proposed zoning map, upon which the various zoning districts referred to in the ordinance were shown. . . .
"At its regular meeting on April 5, 1960, the resolution to adopt the zoning ordinance was introduced and referred by the Council to its Committee on Bills on Second Reading under its procedure for the amendment of ordinances. At this meeting four amendments to the ordinance were proposed, one . . . including the Barcomb property from a commercial to a residence 2 zone, and another amending Section 247 of the proposed ordinance. The ordinance was read and Councilman Michael, in recommending certain changes, made remarks [in part] as follows:
"The City of Rochester does not wish to involve itself in any private disagreements. — I believe that the Planning Board has acted well and acted well within the limits of the scope of the regulations — and they are concerned primarily with facts and figures. These are important. We must consider growth and progress, something else which is just as important, something which is not an obligation to the Planning Board to consider; that we have some moral obligations in the City too. We have had traditions in the past. This particular reference we have is very unusual — to pay tribute and honor to a family which has done more for the city of Rochester than many cities have had the privileges of doing for them.
"We have had a simple request on the part of a very dear lady who represents the traditions of the past which I believe we should build for the future. Are we going to teach our children tonight to disclaim the gratitude, to forget what has been done for us. Are we to say `forget the past, look ahead to the future.' I don't believe we want to bring our children up this way. I believe most of this room are Christians. The Spaulding families we know have made contributions to the community, high school, charities of all faiths, charities to the State and throughout the nation. They don't have to stay here — a simple request that we provide her with peace and quiet to live here. We have an opportunity tonight to act in the best interest of the city as best we can under the provisions that prevail to provide her with this protection as best we can. I believe this proposal of this establishment very near her home based solely on is it good or isn't it . . . . This is a reasonable request. I believe this very firmly gentlemen. I believe we should do something to protect this lady's interest.
"I believe that we should tonight make a zoning change for this particular area. This does not mean to prevent anyone interested in a supermarket for applying again for a new zoning law. I think what our opportunity tonight is that we as Councilmen show the gratitude of the City in this particular instance. I believe there is room in a lot of places for supermarkets but there is only one place for Mrs. Spaulding, right in her home in Rochester in the city she loves. With this in mind, I move the maps referred to be redrawn.
"On March 16, 1960, a building permit showing compliance of proposed building plans with the building code (Rochester Ordinances, Chap. X:3) was issued to the Barcombs. At the time it was issued it was understood by the Barcombs and the Building Inspector that the validity of the building permit depended on the outcome of the question of the validity of the old zoning ordinance . . . also required a permit showing compliance with its provisions.
"On May 3, 1960, at a regular meeting of the City Council the Zoning Ordinance was in order for passage. Remarks were made by Councilman, recommending the adoption of the changes proposed by Councilman Michael at the April 5 meeting. Another Councilman spoke in favor of the proposed ordinance as recommended by the Planning Board. The ordinance was passed by the City Council with several changes, including those proposed by Councilman Michael. One of the changes made by the City Council was a revision of the zoning map on Union and Wakefield Streets so that the Barcomb property was in its entirety located within a Residence 2 Zone rather than partially in a Business 2 Zone. This amendment was passed on a 9 to 3 vote. The other change struck out section 247 in the proposed ordinance which read as follows:
`247. In any case where a building permit has been issued prior to the effective date of this ordinance or any amendment thereto for a building or structure which would not conform to the regulations of this ordinance or amendment thereto, such building or structure may be constructed or altered as a nonconforming building or structure as permitted by said building permit, provided such construction or alteration is commenced within six months after issuance of such permit and diligently prosecuted to completion.'
and substituted the following section:
`247. In any case where a building permit, under Sec. 430 of this ordinance and as required by any other applicable chapter of these ordinances, has been issued prior to the effective date of any amendment of this ordinance, for a building or structure which did not conform to the regulations of such amendment, such building or structure may be constructed or altered as a nonconforming building or structure as permitted by said building permit, provided such construction or alteration, commenced within six months after issuance of such permit and diligently prosecuted to completion.'
"This amendment passed unanimously. The new Zoning Ordinance as amended was then adopted by the Council by a 9 to 3 vote to take effect upon passage . . . . The Barcombs were present or represented by counsel at the public hearings of the Planning Board and at the meetings of the City Council.
"On May 2, 1960, work was commenced by the Barcombs on said property. Said work consisted of removing loam from the building site and erecting batter boards on the premises. On May 6, 1960, the Building Inspector notified the Barcombs to cease construction. On May 19, 1960, a temporary injunction was issued by the Superior Court based on the present action."
The following questions were transferred without ruling:
"1. Is the decision of the Superior Court rendered on March 8, 1960, in Equity 7841, holding that the 1947 Zoning Ordinance was illegal, res judicata in the present case?
"2. Was the 1960 Zoning Ordinance validly enacted?
"3. If the answer to Question 2 is "Yes", does the 1960 Zoning Ordinance apply to, and is it valid as to, the Barcomb property so that the temporary injunction against the proposed construction and use should be made permanent?"
Further facts appear in the opinion.
Reserved and transferred by Keller, J.
Fred W. Hall, Jr., city solicitor (by brief and orally), for the plaintiff.
Beamis Davis (Mr. Davis orally), for the defendants.
I. Counsel for the defendants states in his brief that they "are not attacking the validity of the ordinance on procedural grounds, but are attacking it on substantive grounds." The essence of their claim on this phase of the matter is that the ordinance bore no relationship to the public interest and welfare nor did it contain a comprehensive zoning plan for the community, which are essential to the validity of the enactment. Kimball v. Blanchard, 90 N.H. 298; 36 B.U. Law Rev. 354, 393-396.
To establish their position the defendants rely substantially on the statement made by councilor Michael at the April 5, 1960 meeting of the mayor and council when he recommended certain changes in the ordinance as proposed by the planning board. The effects of the changes were to fix the boundary between the residential and business zone on Union Street along the area of its intersection with Wakefield Street so that the defendants' property would come wholly within a residence zone, rather than being partly in this zone and partly in a business district, which was where it would have been located under the planning board's proposal. Although the statement made by the councilor as set forth in the agreed statement of facts contains references as to the necessity of "growth and progress" and acting in "the best interest of the city," it cannot be denied that it also appears to advocate consideration for the welfare of an individual who lived in the vicinity of the defendants' property where the proposed supermarket was to be built and who was opposed to its erection.
On the other hand, another councilor, about a month later, at the May 3 meeting, urged that the public interest would be better served by the amendment, as it would preserve this area as a residential zone. Among other things, he stated: "The corner of Union and Wakefield Streets is no place for a market of any type. This will create a traffic hazard and there is ample room outside to build a shopping center. This is a choice piece of property and should not be commercialized."
It is conceded by the .defendants that improper motives on the. part of a member of the board, if they may be said to have existed, are not a basis in themselves for invalidating the ordinance. Coleman v. School District, 87 N.H. 465, 471. However, they argue that such motives "show light on the failure of the council to adopt a comprehensive plan or to arbitrarily discriminate against an individual, depriving him of his constitutional rights or to show that the ordinance, rather than being in the public interest or welfare is contrary to the interests, of the public and its welfare." Coleman v. School District, supra.
The issue resolves itself into whether on the record before us, in the light of all the circumstances, the ordinance is clearly "unreasonable or unlawful." Gelinas v. Portsmouth, 97 N.H. 248; RSA 31:78. It appears that northerly from its junction with Union Street, Wakefield Street had always been in an extensive residential area containing many large homes and bounded on the north by an agricultural zone. As previously stated, this was the situation when the defendants bought their property. It is a well-known fact that in many cities there is today a strong tendency toward moving large shopping centers outside the compact part, when suitable space exists to do so, for the purpose of lessening the traffic and fire hazard, relieving congestion, and in general adding to the safety, convenience and attractiveness of the location. Such were the considerations, as previously stated, stressed by a proponent of the disputed amendment before it was passed at the meeting on May 3, 1960.
It is too firmly established to require extended citation that the presumption favors the validity of municipal ordinances which are not lightly to be overturned. Rockingham Hotel Co. v. North Hampton, 101 N.H. 441, 444. It was not necessarily arbitrary or unreasonable for the city to preserve the area here involved as residential. See Rockingham Hotel Co. v. North Hampton, supra, 444. The fact that in this process certain individuals were protected is not decisive against the legality of the action. Edgewood Civic Club v. Blaisdell, 95 N.H. 244, 246.
Viewing the entire record — including the zoning maps — we cannot say that the ordinance clearly lacks a comprehensive plan, ignores the welfare of the community or is unduly discriminatory against any particular individual. Cf. Kimball v. Blanchard, 90 N.H. 298. In these circumstances, we hold that the defendants have failed to sustain their burden of showing that the legislation is unreasonable or unlawful and it must therefore be held valid. Gelinas v. Portsmouth, 97 N.H. 248.
II. We turn now to the defendants' alternative contention that even though the ordinance be upheld, it cannot apply to their property because at the time of its adoption they had acquired a vested right to proceed with the construction of a supermarket. To sustain their claim, they argue that since the 1947 ordinance had been declared invalid by the Superior Court on March 8, 1960, and the new ordinance, with amendments, had not been enacted, they needed no permit. They say also that they have spent money for legal services in connection with this dispute and that on May 2, 1960, the day before the passage of the ordinance, they started construction. This, according to the agreed statement of facts, "consisted of removing loam from the building site and erecting batter boards on the premises." The validity of the March 16 permit given to the defendants was expressly conditioned on whether the Superior Court's decision of March 8 would be upheld on appeal. Of this they admittedly were fully aware. The appeal was dismissed without prejudice on June 7, 1960, after the passage of the ordinance now involved. The defendants also knew when they commenced work on May 2 that amendments to the ordinance as proposed by the planning board would undoubtedly be offered at the regular meeting to be held the next day and that these amendments would place all their property in a residential zone.
The test to determine whether a vested right is obtained in such a situation is laid down in Winn v. Corporation, 100 N.H. 280, 281, where we stated: "It seems to us that the better view and the one more likely to produce justice is that where the owner, relying in good faith upon a permit and before it has been revoked, has made substantial construction on the property or has incurred substantial liabilities relating directly thereto, or both, the permit may not be cancelled." (Emphasis supplied). In Brady v. Keene, 90 N.H. 99, quoted approvingly in the Winn case, the plaintiff, relying upon an amendment to an existing ordinance, had in good faith removed some shrubbery and cut down a few trees preparatory to erecting a filling station. He had also entered into negotiations for a lease relating to the same property. The ordinance was then further changed so that the land was rezoned as residential, and he was denied permission to go ahead with the erection of the filling station. The court there said that in its opinion the plaintiff "had not done enough in relation to his property" to obtain a vested right to continue with the forbidden use. Id., 101. It further stated that his expenses "in relation to the cost of erecting and equipping a filling station . . . were clearly insignificant." Id., 102. By the same token, applying these principles to the present case, it appears to us that the defendants' expenditures, in proportion to the ultimate cost of a supermarket, are not of great significance, nor could they have relied implicitly upon the conditional permit. It is apparent that they have not met the requirements necessary to gain a vested right, and their claim to such must be rejected.
III. The defendant's final contention is that since the ordinance did not specifically revoke the conditional permit issued to them on March 16 to construct a supermarket, it must be held that no revocation was effected. We do not believe this contention requires extended consideration. The defendants cite no supporting authority, and while the question has not been squarely raised before in similar cases here (see Winn v. Corporation, supra; Brady v. Keene, supra), it seems to have been assumed that no specific revocation of an outstanding permit is required in order that an ordinance may become applicable to property which falls within its scope. No necessity for detailed reference in such legislation to existing permits appears to exist. Furthermore, in the present case the record makes it abundantly clear that there was no thought of specifically exempting the defendants from the operation of the enactment.
In conclusion, we cannot say that the ordinance is invalid upon any of the grounds urged by the defendants or that it does not apply to their property. The result reached renders unnecessary consideration of other questions, and the order is
Temporary injunction made permanent.
KENISON, C. J., dissented as to part I; the others concurred.