Bois v. City of Manchester, 6526

• Decision Date: 29 June 1973
• Docket Number: No. 6526,6526
• Citation: 113 N.H. 339,306 A.2d 778
• Parties: Maurice P. BOIS et al. v. CITY OF MANCHESTER et al.
• Court: New Hampshire Supreme Court

Page 778

306 A.2d 778

113 N.H. 339

Maurice P. BOIS et al. v. CITY OF MANCHESTER et al.

No. 6526.

Supreme Court of New Hampshire.

June 29, 1973.

Bois & LaFlamme, Manchester (John Hanrahan, Manchester, orally), for plaintiffs.

J. Francis Roche, Manchester, for defendants City of Manchester and Building Inspector Bertrand Tardif, filed no brief.

Devine, Millimet, Stahl & Branch, Manchester (Silas Little, III, Manchester, orally), for defendant Grace Episcopal Church.

GRIFFITH, Justice.

This is an appeal to the superior court under RSA 31:77 from the issuance of a variance by the Board of Adjustment of the City of Manchester for the purpose of enabling the defendant church's premises in Manchester to be used for a residential youth rehabilitation center. The premises in question are located at 136 Lowell Street within a C-1 civic institutional zone. The property includes a two-floor, seventeen-room building which occupies thirty percent of a lot measuring 100 by 154 feet. The building was used as the church rectory until 1968 when it became vacant. It had been classified as a two-family dwelling by the city building commissioner until the variance was granted.

On June 23, 1970, defendant church applied to the building commissioner for a permit to: 'change use of a 2-family dwelling into a lodging house for 18 persons leased to the Man. Youth Residential Ctr., a non-profit organization which will provide a residential facility for a maximum of 15 obys from Man. who are referred to the Cts. upon release from the Ind. School. Youths 15 to 17 yrs. of age will receive a supervised self-maintenance training program, use of community resources, regular schooling, vocational skill training & recreational services.' The commissioner treated the application as one to establish a lodging house and denied the application because the C-1 district does not permit that use. Manchester Zoning Ordinance § 4.03(6). On June 20, 1970, the church appealed to the board of adjustment for a variance. Plaintiffs appeared at the hearing and opposed the appeal in the ground that the evidence presented was not legally sufficient under the applicable statutes and ordinance to support issuance of a variance. The board refused to grant a variance to the church and a rehearing was denied on July 27, 1970. The church did not seek review of that decision in the superior court.

On August 6, 1970, the church made another application to the building commissioner and described the proposed use as follows: 'to change use of 2-family dwelling into a residential youth center; this youth center is intended to provide facilities for not more than 15 boys from Manchester who are returning to Manchester after referral from various social agencies; the center will provide these returning boys with a positive home setting offering professional supervision and emotional care to be administered by a trained staff, at least 3 of whom will reside in the center, at 136 Lowell St.' The commissioner again refused to grant a building permit and the church made its appeal for a variance to the board of adjustment on August 7, 1970. Plaintiffs' opposition to the variance was presented at the second hearing in the form of a letter in which they urged that the variance be denied for the same reasons they had argued at the hearing on the prior appeal and also on the additional ground that the denial of the prior appeal constituted a bar under the doctrine of res judicata. There was correspondence and testimony in support of the variance. On August 24, 1970, the board granted the variance and plaintiffs' request for a rehearing was denied.

After a hearing on plaintiffs' petition to set aside the decision of the board of adjustment, the Superior Court, Batchelder, J., made certain findings and rulings, concluded that the action of the board of adjustment was not unlawful or unreasonable, and dismissed the appeal. Plaintiffs' motion to set the decree aside as against the weight of the evidence and against the law was also denied. All questions of law raised by these findings and rulings were reserved and transferred.

The court found that the church's second application to the city building commissioner was for a use which would differ in several important respects from that proposed in the prior application. The second application sought to change the use from a two-family dwelling to a residential youth rehabilitation center rather than to a lodging house. It provided that the boys to be served by the house could be referred by various social agencies...