Community Res. for Justice v. Manchester, 2006-609.

Decision Date24 January 2007
Docket NumberNo. 2006-609.,2006-609.
Citation917 A.2d 707
CourtNew Hampshire Supreme Court

Nixon Peabody, LLP, of Manchester (David A. Vicinanzo and another, on the brief, and Mr. Vicinanzo orally), for the plaintiff.

Thomas I. Arnold, III, deputy city solicitor, of Manchester, on the brief and orally, for the defendant.


The defendant, the City of Manchester (City), appeals the orders of the Superior Court (Abramson, J.) reversing the decision of the City's Zoning Board of Adjustment (ZBA) and remanding to the ZBA with instructions to grant a variance to the plaintiff, Community Resources for Justice, Inc. (CRJ). We reverse and remand for further proceedings.


The trial court recited the following facts: CRJ is an organization that operates residential transition centers or "halfway houses" under contracts with the Federal Bureau of Prisons. In the fall of 2004, CRJ purchased a building on Elm Street in Manchester, intending to use the building as a halfway house. The building is located in the central business district and currently houses both commercial and residential uses. The building has three floors; CRJ intended to renovate part of the second floor and the entire third floor for the halfway house and leave the rest of the building undisturbed.

CRJ applied for a building permit to operate the halfway house. The City's building commissioner denied the permit application on the ground that CRJ's proposed use constituted a "correctional facility" as defined by the City's zoning ordinance. A "correctional facility" is not a permitted use in any of the city's zoning districts. CRJ appealed the building commissioner's decision to the ZBA and applied to the ZBA for a variance. The ZBA denied CRJ's appeal and its request for a variance. CRJ's rehearing requests were also denied.

CRJ appealed the ZBA's denials of its challenge to the building commissioner's decision and its variance request to the superior court. The trial court denied CRJ's appeal related to the building commissioner's decision. CRJ did not appeal that decision to this court. Accordingly, for the purposes of this appeal, CRJ's proposed halfway house constitutes a "correctional facility" within the meaning of the City's zoning ordinance.

As for the variance request, the trial court remanded the matter to the ZBA for further hearing and to make findings on unnecessary hardship. The court stated that it appeared that the ZBA may have applied a standard that was overly restrictive and inconsistent with our decision in Simplex Technologies v. Town of Newington, 145 N.H. 727, 766 A.2d 713 (2001).

The ZBA reviewed the matter at a nonpublic business meeting on February 2, 2006, and, finding that CRJ had failed to satisfy the Simplex requirements for unnecessary hardship, voted to deny CRJ's request for a variance. CRJ's request for a rehearing was denied.

On appeal to the superior court, CRJ asserted that the ZBA's decision was unreasonable because the ZBA misapplied Simplex upon remand and based its decision upon unsubstantiated fears. CRJ also argued that the zoning classification, which prohibits a "correctional facility" anywhere in the city, was unconstitutional.

Upon review of the certified record, the trial court found that "[t]o the extent that board members may have contemplated other more preferable uses for the property, rather than the reasonableness of just the proposed use, the ZBA may have, at least in part, applied the wrong standard." The court then examined each of the prongs of the Simplex unnecessary hardship test.

With respect to the first prong, the trial court ruled that the ZBA's determination was unreasonable and unlawful and that CRJ met its burden of showing that it meets the requirements under the first Simplex prong. The court also determined that the ZBA's findings with respect to the second and third prongs of the Simplex test were unreasonable, unlawful and unsupported by the evidence. The trial court therefore reversed the ZBA's decision and granted CRJ's request for a variance. Because it decided the case on other grounds, the trial court did not address or hold an evidentiary hearing upon CRJ's other arguments. In response to the City's motion for reconsideration, the court revised its decision by remanding the matter to the ZBA with instructions to grant CRJ a variance.


On appeal, the City argues that the trial court erred by: (1) improperly substituting its judgment for that of the ZBA; (2) finding that CRJ met the first prong of the Simplex unnecessary hardship test; and (3) finding that no evidence supported the ZBA's determination that CRJ failed to demonstrate unnecessary hardship.

We will uphold the trial court's decision on appeal unless the evidence does not support it or it is legally erroneous. Bacon v. Town of Enfield, 150 N.H. 468, 471, 840 A.2d 788 (2004). Our inquiry is not whether we would find as the trial court found, but rather whether the evidence before the court reasonably supports its findings. Vigeant v. Town of Hudson, 151 N.H. 747, 750, 867 A.2d 459 (2005).

For its part, the trial court must treat all factual findings of the ZBA as prima facie lawful and reasonable. RSA 677:6 (1996). "It may set aside a ZBA decision if it finds by the balance of probabilities, based on the evidence before it, that the ZBA's decision was unreasonable." Chester Rod & Gun Club v. Town of Chester, 152 N.H. 577, 580, 883 A.2d 1034 (2005) (quotation and brackets omitted).

To obtain a variance, an applicant must show that: (1) granting the variance will not be contrary to the public interest; (2) special conditions exist such that a literal enforcement of the provisions of the ordinance will result in unnecessary hardship; (3) granting the variance is consistent with the spirit of the ordinance; (4) by granting the variance substantial justice is done; and (5) granting the variance does not diminish the value of surrounding properties.

Id.; see also RSA 674:33, I(b) (1996).

To establish "unnecessary hardship" when seeking a use variance, an applicant must demonstrate that: (1) a zoning restriction as applied to the applicant's property interferes with the applicant's "reasonable use of the property, considering the unique setting of the property in its environment"; (2) no fair and substantial relationship exists between the general purposes of the zoning ordinance and the specific restriction on the property; and (3) the variance would not injure the public or private rights of others. Simplex, 145 N.H. at 731-32, 766 A.2d 713.

"As our cases since Simplex have emphasized, the first prong of the Simplex standard is the critical inquiry for determining whether unnecessary hardship has been established." Harrington v. Town of Warner, 152 N.H. 74, 80, 872 A.2d 990 (2005). To meet its burden of proof under this part of the Simplex test, the applicant must demonstrate, among other things, that the hardship is a result of the property's unique setting in its environment. Id. at 81, 872 A.2d 990. This requires that the zoning restriction burden the property "in a manner that is distinct from other similarly situated property." Id. While the property need not be the only such burdened property, "the burden cannot arise as a result of the zoning ordinance's equal burden on all property in the district." Id. In addition, the burden must arise from the property and not from the individual plight of the landowner. Id. Thus, the landowner must show that the hardship is a result of specific conditions of the property and not the area in general. Id. As we explained in Rancourt v. City of Manchester, 149 N.H. 51, 54, 816 A.2d 1011 (2003), "hardship exists when special conditions of the land render the use for which the variance is sought `reasonable.'"

Based upon our review of the certified record, we conclude that it does not reasonably support the trial court's determination that CRJ met its burden with respect to the first prong of the Simplex test. The evidence does not reasonably support the trial court's conclusion that CRJ's property was burdened by the restriction in a manner that was distinct from similarly situated property. See Harrington, 152 N.H. at 81, 872 A.2d 990. Nor does the evidence reasonably support the trial court's conclusion that the hardship resulted from special conditions of the land, rather than the area in general. See id.; see also Rancourt, 149 N.H. at 54, 816 A.2d 1011.

The evidence CRJ presented did not demonstrate that its proposed site was unique, as compared to the surrounding lots. Garrison v. Town of Henniker, 154 N.H. ___, ___, 907 A.2d 948, 953-54 (2006). While there was evidence that CRJ's property was located near public transportation and treatment facilities, as well as other city services that halfway house residents might need, there was no evidence that CRJ's property was unique in this respect. Presumably, all of the buildings in this location share these characteristics. These characteristics, alone, "do not distinguish [CRJ]'s proposed site from any other [site] in the area." Id. at ___, 907 A.2d at 953.

Moreover, contrary to the trial court's finding, there was no evidence in the certified record that demonstrated "how the size and layout of this specific building made the property particularly appropriate for the proposed use." While the certified record contained a map of the building's layout, there is no evidence that this layout made this building uniquely suited as a halfway house. See Rancourt, 149 N.H. at 54, 816 A.2d 1011. By contrast, in Rancourt, where the proposed use was the stabling of two horses, there was evidence that the lot at issue was "uniquely configured" in that the rear portion of it was considerably larger than the front and that there was a thick wooded buffer around the proposed paddock...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT