Historically Speaking: Dover lawsuits from the '70s shed light on today's struggle
Over the years, the City of Dover has been involved in a number of lawsuits. In view of the current headlines involving evictions and homelessness, one case from the 1970s is of some importance. That was Dover vs. B.C.P. Realty. Here is what happened.
B.C.P., which was located in Somersworth, owned rental property in Dover. A tenant fell behind on rent. On Jan. 28, 1971 B.C.P gave her a Notice to Quit, directing her to vacate the premises as of Feb. 5. She did not comply. On Feb. 23, B.C.P. shut off the water and heat.The tenant complained to the city and the Building Inspector asked that the owner restore the utilities. B.C.P. refused. The city then filed a complaint with the District Court alleging a violation of the city's Housing Ordinance. There was a hearing, and a finding of guilty of the ordinance provision that stated "No person shall occupy as owner-occupant or shall let to another for occupancy of any dwelling" without providing proper ventilation, light, heating and screening. B.C.P. appealed the finding to the Superior Court and the judge there forwarded the case to the N.H. Supreme Court for review.
A decision was issued on June 30, 1972 (the wheels of justice sometimes grind slowly…). The court ruled in favor of the city on the grounds that the ordinance was directed toward "occupancy" and not "tenancy." As long as an individual continued to "occupy" without the landlord taking any further action to evict, then the essential services to the premises, under the ordinance, must be maintained.
It is interesting to note that there was dissent written by Justice William Grimes, who was a Dover resident. He took the position that the tenancy, and thus the landlord's obligation to provide services, ceased to exist on Feb. 5, the effective date of the Notice to Quit. This seems to be an odd position given the fact, as pointed out by the majority opinion, the language of the ordinance relates only to "occupancy," and it was clear that the landlord hadn't followed up with any formal eviction action in the District Court.
Another case, also from the '70s, is of interest because it involved the fate of the former Governor Sawyer mansion at 90 Stark Ave. This was Fisher v. Dover, and it had a rather complicated history before finally being resolved.
The subject matter involved local developer McQuade Realty, which had applied to the city for a variance to convert the former 32-room residence to a multi-family apartment complex. The Zoning Board of Adjustment granted the variance, but Clara Fisher, whose home abutted the mansion property to the north, appealed the decision to the Superior Court. The decision of the ZBA was overturned. Following a second hearing by the ZBA, the variance was again approved, and once again Mrs. Fisher appealed. Once again the Court reversed the decision. Upon reconsideration, and without any further public hearing, the ZBA then denied the variance. All of this took place between Oct. 19, 1973, the date of the ZBA's first approval, and May 13, 1976, the date of the final denial.
Two and a half months later, however, McQuade tried again with a brand new filing, essentially the same request for a variance. The ZBA responded quickly with an approval, and Mrs. Fisher responded with another appeal. This time the Superior Court ruled that she had not met the necessary burden of proving that the decision was unreasonable and upheld the granting of the variance. The case then went to the N.H. Supreme Court, with the primary argument on appeal being that the ZBA should not have given approval to a variance that it had previously denied without also making a finding that the new application was fundamentally different from the earlier application. The Supreme Court agreed, noting that there was no evidence that the ZBA had even considered if there had been any "material change in circumstances" from the first proposal to the approval the second time around. As a result, the ZBA decision was set aside. (In this case, Judge Grimes recused himself from participating in the decision.)
There are two interesting sidelights to this case. First, Clara Fisher, the party opposing the variance, was the wife of Lewis Fisher, a local attorney. They both occupied the house next door to the Sawyer Mansion, and it was Atty. Fisher's law firm (Fisher, Parsons, Moran & Temple) that represented Clara throughout (The Supreme Court's decision was dated May 13, 1980, so from start to finish the case had dragged on for six and a half years!).
Second, the principal of McQuade Realty was Paul McQuade, a person of some standing in the community. He had served both in the legislature and as a member of the City Council, and for several years on Dover's Industrial Development Authority. At one point, McQuade Realty made a very favorable purchase of land, part of the former Guppey Estate and then owned by the city, the location of today's Philbricks Sports, Duston's Market and Bakery, Ralph Pill, and others. He served as president of Rotary. So over the years, his dealings with the city and elected and appointed officials had been extensive. (The same year as the Supreme Court decision he was appointed by Governor John Sununu as a Commissioner of the State Public Utilities Commission.)
So the variance went down to defeat one more time, and it seems that should have been the end of the official legal wrangling. But wait! There's more …except we've run out of space ...
Tony McManus is a Dover native. He is a former trustee of the Woodman Institute and an amateur student of Dover’s past. He can be reached at mcaidan73@gmail.com.
This article originally appeared on Fosters Daily Democrat: Historically Speaking:
