Posted by: Patricia Salkin | March 22, 2013

New Hampshire Supreme Court Finds Variance Application Did Not Waive Applicant’s Right to Claim Use Was Permitted As-of-Right

Brookside Congregational Church, owner of a 10.04-acre, residentially-zoned property on which it had operated a preexisting, non-conforming church use since 1958, sought to allow self-help organization Granite Pathways to use the Church’s carriage house for the organization’s work-based program.  Abutting neighbors, Stephen Bartlett and others, opposed the project.  When Brookside applied to the City of Manchester’s Zoning Board of Appeals for a variance to allow Granite Pathways’ use, a number of neighbors attended a public hearing to oppose the variance on the grounds that it posed safety, security, and transportation issues, and arguing that the Church had failed to meet the “unnecessary hardship” standard necessary for issuance of a variance and had failed to prove granting the variance would not depress nearby property values.  The ZBA tabled the variance, and scheduled another hearing.

At the second public hearing, the Church proposed the imposition of several conditions on the variance including (1) allowing no more than 35 people, including staff, in the facility at one time, (2) requiring that program users to park in the church parking lot, and not use off-street parking, (3) limiting hours of operation, not allowing use after 9 p.m. pursuant to Church policy and only occasional weekends and evenings, (4) terminating the variance if Granite Pathways subleases its occupancy rights to another party, or changes its program (in response to concerns the program would become a halfway house), (5) requiring Granite Pathways to screen its members for convicted pedophiles, who would not be permitted, (6) requiring Granite Pathways to remove members under the influence of drugs or alcohol, and (7) terminating the variance when Granite Pathways when the program ceases to use the property for the proposed use, or on Dec. 31, 2015, whichever came first.  Following the second public hearing, the ZBA granted the variance subject to the seven conditions proposed by the Church, finding that granting the variance would not be contrary to the public interest, have a negative impact on property values, that substantial justice would be served by granting the variance, and that literal enforcement of zoning limitations would result in “unnecessary hardship.”  The abutting neighbors appealed, and a rehearing was held, but the ZBA confirmed its decision to grant the variance.  Neighbors filed a second motion for rehearing, arguing that the ZBA had acted improperly and exceeded its jurisdiction by considering the Church’s proposal to be an allowable accessory church use, which would not have required a variance.  The ZBA denied the motion for rehearing, and the neighbors appealed to the Superior Court.

The Superior Court reasoned that the ZBA had improperly found an unnecessary hardship, but further held that the proposed use was a lawful accessory use that should have been allowed as of right.  The Superior Court invalidated the ZBA’s variance decision, but held that the Church did not require a variance to allow Granite Pathways’ use of its property.  Both the neighbors and the Church, joined by the City, appealed.  The neighbors argued that the Superior Court lacked subject matter jurisdiction to interpret the City ordinances as allowing Granite Pathways’ use as-of-right as an accessory use, and that the Superior Court had exceeded its jurisdiction in considering the as-of-right issue, which had not been decided by the ZBA and was thus not properly before the court.  The Church and the City argued that the as-of-right determination should stand, but that the ZBA’s issuance of the variance should also stand, since it was based on sufficient evidence in the ZBA record.

The New Hampshire Supreme Court held that the lower court had subject matter jurisdiction to consider whether Granite Pathways’ proposed use was within the realm of permitted accessory uses on the Church’s property, as a means of assessing whether the “unnecessary hardship” test had been properly applied by the ZBA.  Further, the court held that the Church had not waived its right to claim Granite Pathways’ use was an accessory use, since there was no identifiable provision in law which contemplated such a waiver in this type of case.  The court concluded that “contained in every variance application is the threshold question whether the applicant’s proposed use of the property requires a variance because . . . the ZBA will invariably consider this issue in deciding whether unnecessary hardship exists.”  Thus, the Superior Court had the jurisdiction to consider the as-of-right issue.

However, the Court held that the Superior Court should not have decided the as-of-right issue, because it lacked a sufficient factual record.  Instead, the Court held that the case should have been remanded to the ZBA to decide in the first instance the question of whether Granite Pathways’ use was a lawful accessory use under local zoning laws–a question of law requiring an adequate factual record.

The Court vacated the Superior Court’s decision and ordered the case remanded to the ZBA for consideration.  In the event the ZBA concluded the as-of-right issue against the Church, the Court noted the variance issue should then be reconsidered based on the record.

Bartlett v. City of Manchester, 2013 WL 657224 (N.H. 2/25/13)

The opinion can be accessed at: http://www.courts.state.nh.us/supreme/opinions/2013/2013017bartlett.pdf


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