2006-609, COMMUNITY RESOURCES FOR JUSTICE, INC. v. CITY OF MANCHESTER

The defendant, the City of Manchester (City), appeals the

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

and Mr. Vicinanzo orally), for the plaintiff. to press. Errors may be reported by E-mail at the following address: Nixon Peabody LLP, of Manchester (David A. Vicinanzo & a. on the brief,

page is: http://www.courts.state.nh.us/supreme. v.

COMMUNITY RESOURCES FOR JUSTICE, INC.

editorial errors in order that corrections may be made before the opinion goes No. 2006-609 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Hillsborough-northern judicial district Readers are requested to notify the Reporter, Supreme Court of New ___________________________

THE SUPREME COURT OF NEW HAMPSHIRE

a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as examined each of the prongs of the p. 2 ZBA may have, at least in part, applied the wrong standard.” The court then for the property, rather than the reasonableness of just the proposed use, the

within the meaning of the City’s zoning ordinance.

extent that board members may have contemplated other more preferable uses

city, was unconstitutional. was overly restrictive and inconsistent with our decision in court stated that it appeared that the ZBA may have applied a standard that

this appeal, CRJ’s proposed halfway house constitutes a “correctional facility” February 2, 2006, and, finding that CRJ had failed to satisfy the Upon review of the certified record, the trial court found that “[t]o the

zoning classification, which prohibits a “correctional facility” anywhere in the and its request for a variance. CRJ’s rehearing requests were also denied. based its decision upon unsubstantiated fears. CRJ also argued that the was unreasonable because the ZBA misapplied the ZBA and applied to the ZBA for a variance. The ZBA denied CRJ’s appeal ZBA for further hearing and to make findings on unnecessary hardship. The Simplex upon remand and On appeal to the superior court, CRJ asserted that the ZBA’s decision city’s zoning districts. CRJ appealed the building commissioner’s decision to

variance. CRJ’s request for a rehearing was denied. requirements for unnecessary hardship, voted to deny CRJ’s request for a CRJ did not appeal that decision to this court. Accordingly, for the purposes of Simplex The ZBA reviewed the matter at a non-public business meeting on

Technologies v. Town of Newton, 145 N.H. 727 (2001).

As for the variance request, the trial court remanded the matter to the zoning ordinance. A “correctional facility” is not a permitted use in any of the

trial court denied CRJ’s appeal related to the building commissioner’s decision. floor for the halfway house and leave the rest of the building undisturbed. commissioner’s decision and its variance request to the superior court. The floors; CRJ intended to renovate part of the second floor and the entire third CRJ appealed the ZBA’s denials of its challenge to the building currently houses both commercial and residential uses. The building has three

CRJ’s proposed use constituted a “correctional facility” as defined by the City’s City’s building commissioner denied the permit application on the ground that CRJ applied for a building permit to operate the halfway house. The

halfway house. The building is located in the central business district and building on Elm Street in Manchester, intending to use the building as a properties.

p. 3 granting the variance does not diminish the value of surrounding (4) by granting the variance substantial justice is done; and (5) granting the variance is consistent with the spirit of the ordinance;

applicant must demonstrate that: (1) a zoning restriction as applied to the

special conditions exist such that a literal enforcement of the

instructions to grant CRJ a variance. To establish “unnecessary hardship” when seeking a use variance, an

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

supports its findings. court found, but rather whether the evidence before the court reasonably granting the variance will not be contrary to the public interest; (2) does not support it or it is legally erroneous. To obtain a variance, an applicant must show that: (1) the court revised its decision by remanding the matter to the ZBA with Town of Chester, 152 N.H. 577, 580 (2005) (quotation and brackets omitted). unnecessary hardship. it, that the ZBA’s decision was unreasonable.” Chester Rod & Gun Club v. decision if it finds by the balance of probabilities, based on the evidence before prima facie lawful and reasonable. RSA 677:6 (1996). “It may set aside a ZBA For its part, the trial court must treat all factual findings of the ZBA as

N.H. 468, 471 (2004). Our inquiry is not whether we would find as the trial

We will uphold the trial court’s decision on appeal unless the evidence CRJ’s other arguments. In response to the City’s motion for reconsideration, grounds, the trial court did not address or hold an evidentiary hearing upon granted CRJ’s request for a variance. Because it decided the case on other evidence supported the ZBA’s determination that CRJ failed to demonstrate prong of the Simplex unnecessary hardship test; and (3) finding that no third prongs of the substituting its judgment for that of the ZBA; (2) finding that CRJ met the first On appeal, the City argues that the trial court erred by: (1) improperly showing that it meets the requirements under the first

by the evidence. The trial court therefore reversed the ZBA’s decision and

court also determined that the ZBA’s findings with respect to the second and

determination was unreasonable and unlawful and that CRJ met its burden of With respect to the first prong, the trial court ruled that the ZBA’s proposed site from any other [site] in the area.” p. 4 characteristics. These characteristics, alone, “do not distinguish [CRJ]’s respect. Presumably, all of the buildings in this location share these

might need, there was no evidence that CRJ’s property was unique in this

treatment facilities, as well as other city services that halfway house residents with respect to the first prong of the

was unique, as compared to the surrounding lots.

special conditions of the land, rather than the area in general. Id. at ___, 907 A.2d at 953.

evidence that CRJ’s property was located near public transportation and not reasonably support the trial court’s determination that CRJ met its burden Henniker, 154 N.H. ___, ___, 907 A.2d 948, 953-54 (2006). While there was

The evidence CRJ presented did not demonstrate that its proposed site the variance is sought ‘reasonable.’” Rancourt, 149 N.H. at 54.

reasonably support the trial court’s conclusion that the hardship resulted from plight of the landowner. situated property. See Harrington, 152 N.H. at 81. Nor does the evidence burdened by the restriction in a manner that was distinct from similarly reasonably support the trial court’s conclusion that CRJ’s property was zoning ordinance’s equal burden on all property in the district.”

Based upon our review of the certified record, we conclude that it does of the property’s unique setting in its environment.

“hardship exists when special conditions of the land render the use for which As we explained in Rancourt v. City of Manchester, 149 N.H. 51, 54 (2003), is a result of specific conditions of the property and not the area in general. Id.

addition, the burden must arise from the property and not from the individual

variance would not injure the public or private rights of others. only such burdened property, “the burden cannot arise as a result of the zoning ordinance and the specific restriction on the property; and (3) the Id. While the property need not be the no fair and substantial relationship exists between the general purposes of the that the zoning restriction burden the property “in a manner that is distinct

applicant must demonstrate, among other things, that the hardship is a result 80 (2005). To meet its burden of proof under this part of the Simplex test, the hardship has been established.” Harrington v. Town of Warner, 152 N.H. 74, Simplex standard is the critical inquiry for determining whether unnecessary “As our cases since Simplex have emphasized, the first prong of the

N.H. at 731-32.

property, considering the unique setting of the property in its environment”; (2) applicant’s property interferes with the applicant’s “reasonable use of the involve questions of law.

p. 5 these arguments, we may do so in the first instance to the extent that they

and federal rights to equal protection. While the trial court did not address fails.

it exceeds the authority granted the City by the state enabling act,

respect to the first prong of the

Britton v. Town of Chester, 134 N.H. 434, 441 (1991). Ordinance contravenes the general welfare provision of [RSA] 674:16.” See deprived CRJ of its state right to substantive due process or violated its state essential community service from within the City’s borders, this part of the ZBA’s reasons supported its denial of a variance, CRJ’s appeal of that decision asserts, “By specifically targeting, and then categorically banning, this See Weare Land Use Assoc. v. Town of Weare, 153 N.H. 510, 511 (2006). CRJ contends that the City’s ban on correctional facilities is: (1) ultra vires because because it exceeds the powers delegated to it by the zoning enabling legislation. CRJ first argues that the City’s ban on correctional facilities is ultra vires trial court erred when it concluded that CRJ met its burden of proof with

674:16-:23 (1996 & Supp. 2006); and (2) unconstitutional because it either house. determinations with respect to the other prongs of the test. If any one of the see RSA

denial of the variance was unreasonable, we may affirm on other grounds. CRJ CRJ argues that even if the trial court erred when it ruled that the ZBA’s considering the property’s unique setting in its environment, we hold that the

proposed paddock area. deny CRJ a variance. Accordingly, we reverse the trial court’s reversal of the decision of the ZBA to See Jensen’s, Inc. v. City of Dover, 130 N.H. 761, 765 (1988).

evidence that this layout made this building uniquely suited as a halfway need not address whether the evidence reasonably supported the trial court’s While the certified record contained a map of the building’s layout, there is no Simplex test. In light of this conclusion, we building made the property particularly appropriate for the proposed use.”

Absent evidence that CRJ’s proposed use of the property was reasonable,

larger than the front and that there was a thick wooded buffer around the issue was “uniquely configured” in that the rear portion of it was considerably proposed use was the stabling of two horses, there was evidence that the lot at See Rancourt, 149 N.H. at 54. By contrast, in Rancourt, where the

the certified record that demonstrated “how the size and layout of this specific Moreover, contrary to the trial court’s finding, there was no evidence in should promote the general welfare, both within and without their boundaries.”

p. 6 and of which it forms a part.”

from all five zoning districts in the town.” include the welfare of the ‘community’ . . . in which a municipality is located

concerns of the area in which they are situated. As subdivisions of the State, petitioned for declaratory and injunctive relief, the town amended its ordinance

acre lot or a duplex on a three-acre lot, and . . . excluded multi-family housing interpreted “the general welfare provision of the zoning enabling statute to validity of a zoning ordinance that “provided for a single-family home on a twounable to find affordable housing in the town of Chester, challenged the In Britton, the plaintiffs, low- and moderate-income people who had been

Id.

675:2-5.

we explained: “Municipalities are not isolated enclaves, far removed from the

community is delegated to it by the State, the municipality must exercise this affected region must be considered in determining the ordinance’s validity.” We an impact beyond the boundaries of the municipality, the welfare of the entire the health, safety, morals, and general welfare of the community.” In Britton, 134 N.H. at 440, we held that “[w]hen an ordinance will have

Zoning and Planning § 1:11, at 1-35 (2005). authority delegated.” 1 A.H. Rathkopf & D.A. Rathkopf, Rathkopf’s The Law of invalid . . . as an ultra vires enactment beyond the scope of the zoning ordinance under the ordinance enactment procedures of RSA considerations or purposes not embodied in an enabling act, it will be held or unorganized places is authorized to adopt or amend a zoning Hudson town, or county in which there are located unincorporated towns, 147 N.H. 380, 384 (2001). “[W]here zoning is exercised for

to zone property to promote the health, safety and general welfare of the Town of Conway, 137 N.H. 368, 371 (1993). “Because a municipality’s power

This act “grants municipalities broad authority to pass zoning ordinances for

welfare of the community, the local legislative body of any city, For the purpose of promoting the health, safety, or the general

The zoning enabling act, RSA 674:16, I (Supp. 2006) provides:

ordinary meaning. Id. statute itself, and, if possible, construe that language according to its plain and 100, 103 (2005). In interpreting a statute, we first look to the language of the in the words of a statute considered as a whole. DeLucca v. DeLucca, 152 N.H. This court is the final arbiter of the intent of the legislature as expressed for the community to which these individuals will inevitably return.” Moreover,

p. 7 This is important, of course, for the offender. More significantly, it is important justice system than working to ease an offender’s transition back into society. a variance: “It is difficult to imagine a job more important in the criminal

that such institutions “adequately provide for the general welfare.”

as a federal judge noted in her letter to the ZBA regarding CRJ’s application for

correctional institutions does not apply to State-run institutions and asserts meaning of the zoning ordinance.” The City concedes that its ban on including halfway houses[,] do not implicate the general welfare within the the federal government.

general welfare within the meaning of the enabling legislation. To the contrary, entities under contract with the Federal Bureau of Prisons do not implicate the realistic opportunity to obtain affordable housing.’” We disagree with the City that correctional institutions run by private

contrary). Accordingly, we proceed under the same assumption. state was not bound by local zoning ordinances, absent statutory authority to sought to establish residence for mentally ill individuals under contract with with the enabling act. of Conway, 121 N.H. 811, 812, 814 (1981) (holding private corporation that

houses, as separate from publicly administered correctional institutions, applies to correctional institutions run by private parties under contract with in contravention thereof”). Both parties appear to assume that the City’s ban moderate-income families.” authorized by Congress “is immune from and supersedes state and local laws (land owned or leased by the United States or a federal agency for purposes Rathkopf, Rathkopf’s The Law of Zoning and Planning § 76.23, at 76-79 (2005) community and a proportionate share of [the] same within its region from a institutions run by the federal government. See 4 A.H. Rathkopf & D.A. Neither party addresses whether the City’s ban applies to correctional

the lawful needs of the community, broadly defined, and therefore conflicted

counters that “[p]rivately run correctional institutions, including halfway CRJ asks that we extend Britton to the facts of this case. The City unreasonable barrier to the development of affordable housing for low- and

its obligation to provide low[-] and moderate[-]income families within the warrant the Town of Chester, through its land use ordinances, from fulfilling finding that “‘there are no substantial and compelling reasons that would

We held that the ordinance was ultra vires because it failed to provide for

at 43 p. 8 8. The master found that the ordinance, even as amended, “placed an types, such as single-family homes, duplexes, and multi-family structures.” Id. . . . , a form of multi-family housing required to include a variety of housing to permit “multi-family housing as part of a ‘planned residential development’ surrounding property values.” These interests need not be the City’s actual

burden in accommodating a disproportionate share of social services or affect

ordinance is ultra vires. an opportunity to present evidence related to CRJ’s argument that the arguments or hold an evidentiary hearing on them, neither party has yet had

of the particular ordinance to particular property under particular conditions determining whether an ordinance is a proper exercise of the City’s police

surrounding community, engage in recidivism, exacerbate the City’s perceived out of New Hampshire. housed at a residential transition facility would either pose some threat to the ordinance conceivably could serve such as: “[c]oncerns that the prisoners to be The City articulates several legitimate governmental interests that the

legitimate governmental interest under the facts of this case. 124 (2002). Thus, we analyze whether the ordinance is rationally related to a denial of a variance to CRJ and the trial court did not address CRJ’s alternative Dow v. Town of Effingham, 14 p. 8 8 N.H. 121,

In an as-applied challenge, such as CRJ’s, we examine “the relationship substantive due process rights under the New Hampshire Constitution. In 263, 270 (2004). to prove otherwise. Manchester has, it could effectively push all new halfway houses See Verizon New England v. City of Rochester, 151 N.H. we presume that the challenged ordinance is valid and require the challenger border. If the New Hampshire communities were to act as unduly restricts individual rights.” The effects of such a result would not end at the New Hampshire Id. at 641. Under our rational basis test, governmental interest” and that it “contains no inquiry into whether legislation this test “requires that legislation be only rationally related to a legitimate v. Town of Strafford, 153 N.H. 633, 636 (2006). In Boulders, we clarified that

CRJ next asserts that the ban on correctional facilities violates its

be free to[ ] follow Manchester’s lead and ban halfway houses. . . . .

We limit our holding on this issue to this question of law and remand for

the proposed use, the communities surrounding Manchester will Were this Court to endorse the Ordinance and its application to

beyond the City’s borders. As CRJ observes: like the ordinance at issue in Britton, the ordinance in this case has an impact p. 9 9 individual rights affected.”

unconstitutional as applied. facially unconstitutional, we confine our analysis to whether the ordinance is

examining the purpose and scope of the State-created classification and the Constitution, we must first determine the [correct] standard of review by protection.

Id. classification, the constitutional standard to be applied is that of rationality.” an important substantive right, or application of some recognized suspect (quotation omitted). “Finally, absent some infringement of a fundamental right, process. “important substantive rights” are subject to intermediate scrutiny. Id. at 638 ordinance does not violate CRJ’s state constitutional right to substantive due apparently abandoned any argument it may have made that the ordinance was fundamental right are subject to strict scrutiny. Id. Classifications involving the conceivable purposes for that ordinance. Accordingly, we hold that the (quotation omitted). Classifications based upon suspect classes or affecting a

232-33. “In considering an equal protection challenge under our State applied to CRJ, violates its federal and state constitutional rights to equal 124 N.H. 226, 231 (1 p. 9 983), and cite federal opinions for guidance only, id. at We first address CRJ’s claim under the State Constitution, State v. Ball,

the ordinance ‘as applied’ to it rather than as facially invalid.” As CRJ has conclude that applying this ordinance to CRJ’s property is rationally related to unconstitutional on its face, in its reply brief, CRJ clarified that it “challenged in its initial brief, CRJ appeared to argue that the ordinance was

See U.S. CONST. amend. XIV; N.H. CONST. pt. I, art. 12. Although

Finally, CRJ contends that the City’s ban of correctional facilities, as

reasonably conceive to be true the facts” upon which it is based.

the ordinance. halfway house for federal prisoners still serving out their sentences, we bears a rational relationship to these interests. As CRJ proposes to construct a We next examine whether the ordinance, as applied to CRJ’s property,

governmental interests. true, and thus that the ordinance serves or could conceivably serve legitimate Here, we conclude that the City could reasonably conceive these facts to be Reg. Sch. Dist. v. Levine, 152 N.H. 537, 53 p. 9 9-40 (2005) (quotation omitted).

(1 p. 9 991). Rather, we will inquire only as to “whether the legislature could

See Appeal of Salem Regional Med. Ctr., 134 N.H. 207, 215

rational basis review, we will not independently examine the factual basis for interests in adopting the ordinance nor need they be based upon facts. In interest and narrowly tailored to meet that end. As currently

p. 10 legislation be necessary to achieve a compelling governmental exacting examination than our strict scrutiny test – namely, that rationally related to a legitimate governmental interest – but a less

the rational basis test – namely, that legislation merely be

prong of the intermediate scrutiny test.

intermediate scrutiny standard should require more scrutiny than

rational basis, there was significant overlap between the two tests. require an “important” objective due to the “fair and substantial”

conformity with our other levels of constitutional review. An A new articulation of this test is necessary to bring it into

‘unduly restrictive.’” omitted). He explained: Gonya, 153 N.H. at 538 (Broderick, C.J., concurring specially) (citations clarified our rational basis test in

scrutiny was intended to be less deferential to legislation than our test for “legitimate” as in rational basis review, or whether we should governmental objective required by the test should be merely to be part of our intermediate test; and (2) whether the (1) whether the terms “reasonable” and “arbitrary” should continue legislative objective, rather than an important one. encouraged future litigants to ask the court to address:

intermediate scrutiny tests “employ[ed] the terms ‘reasonable,’ ‘arbitrary,’ and

153 N.H. at 538 (Broderick, C.J., concurring specially). For instance, until we

dissenting). He also observed that although our test for intermediate-level Imperial Cas. & Indemn. Co., 133 N.H. 109, 122-23 (1990) (Souter, J., constitutional review in 536, 538-39 (Broderick, C.J., concurring specially); see also City of Dover v.

zoning ordinances that infringe upon this right. legislation by requiring that it be substantially related only to a legitimate test for intermediate-level scrutiny may be overly deferential to challenged In his concurrence in Gonya, Chief Justice Broderick observed that our

(quotation omitted). substantial relation to the object of the legislation.” Carson, 120 N.H. at 932 arbitrary, and must rest upon some ground of difference having a fair and specially). Under this test, the challenged legislation must be “reasonable, not Comm’r, N.H. Ins. Dep’t, 153 N.H. 521, 535 (2006) (Broderick, C.J., concurring

213, 222 (1993). We first adopted an intermediate scrutiny approach to

we use our intermediate scrutiny test to review equal protection challenges to As the right to use and enjoy property is an important substantive right, a remnant of abandoned doctrine; and (4) facts have so changed, or come to be

p. 11 principles of law have so far developed as to have left the old rule no more than

conformity with each other than to suffer the errors to persist,” 11

previously held that the challenging party bears the burden of proof, would lend a special hardship to the consequence of overruling; (3) related under the New Hampshire Constitution.” CRJ observes that we have by defying practical workability; (2) the rule is subject to a kind of reliance that confusion as to which party bears the burden of proof under middle tier review precedent, including whether: (1) the rule has proven to be intolerable simply

hardships that may result from correcting these tests and bringing them into

“demands respect in a society governed by the rule of law,”

CRJ under any articulation of middle tier scrutiny, there appears to be some Several factors inform our judgment regarding whether to depart from under middle tier scrutiny.” prudent to clarify in these proceedings that the burden falls upon the [City] N.H. at 641. constitutional review.” Boulders, 153

standards of constitutional review, in our judgment it is better to undergo the Usitalo, 134 N.H. 50, 53 (1991) (quotation omitted), “given the status of our

In light of this request, we now take the opportunity to clarify our middle

“Although this Court should find the Ordinance unconstitutional as applied to

articulation of [the middle tier] standard is inconsistent or unclear, it may be 518 U.S. 515, 533 (1996). Thus, CRJ states: “To the extent this Court’s these issues . . . to aid our continued examination of these standards of middle tier review under the Federal Constitution, see United States v. Virginia, Supreme Court has ruled that the government has the burden of proof for Buskey v. Town of Hanover, 133 N.H. 318, 322 (1990), while the United States

into whether legislation unduly restricts individual rights, and that a least-

CRJ has asked us to clarify our intermediate scrutiny test. It asserts,

and strict scrutiny tests,” but we “encourage[d] future litigants to consider of constitutional review,” we did not “make any changes to our intermediate Although “[w]e recognize[d] that our holding . . . affect[ed] the other standards

related to a legitimate governmental interest” and that it “contains no inquiry Boulders that our rational basis test “requires that legislation be only rationally To eliminate confusion in our tests for constitutional review, we held in

Id. at 538-39 (Broderick, C.J., concurring specially).

does so. articulated, it is not clear whether our intermediate scrutiny test p. 12 12

of men and women on an individualized basis.”

is the standard the Court now identifies as intermediate scrutiny. substantially related to achieving those objectives. This new standard of review

basis but not as exacting as strict scrutiny. justification is “exceedingly persuasive.” Virginia, 518 U.S. at 533. To meet the classification has the burden of demonstrating that its proffered Jeter the Court “required the state to conduct hearings to ascertain the qualifications, 486 U.S. 456, 461 (1988). Under this standard of review, the defender of

such classifications serve important governmental objectives and be test, first articulated in Craig v. Boren, 429 U.S. 190, 197 (1976), requires that Redlich scrutiny test by which to review gender-based classifications. Id. at 405. This Since deciding Reed, the Court has explicitly devised a heightened

persons similarly circumstanced shall be treated alike.’” scrutinized the classifications under a test that was different from rational level of scrutiny to be the same as that applied by the federal courts. Id. In this way, the Court

merely accept the state’s generalized assumptions that justified this preference, as estate administrators over equally qualified females.” Id. Rather than it to invalidate classifications based upon gender. In Reed, the Court “struck down a statute that preferred males to serve

& a., Understanding Constitutional Law § 10.01, at 404 (3d ed. 2005). give heightened scrutiny to gender-based classifications for the first time. N. intermediate scrutiny and our test now differ in a number of respects. rational basis review. Reed, 404 U.S. at 76. The Court used it, however, to Carson, p. 12 120 N.H. at 932. In Reed, the Court referred to this test as part of

having a fair and substantial relation to the object of the legislation, so that all reasonable, not arbitrary, and must rest upon some ground of difference of rights than do the federal courts, we have intended our analysis under this 253 U.S. 4 p. 12 12, 415 (1920). Under this test, “[a] classification ‘must be 932. The test itself was first articulated in F.S. Royster Guano Co. v. Virginia, remnant of abandoned doctrine.” See Carson, 120 N.H. at 404 U.S. 71, 76-77, (1971), in which the United States Supreme Court applied We derived our test for intermediate scrutiny, in part, from abandon the intermediate scrutiny test we developed in Reed v. Reed,

has evolved, ours has remained the same. As a result, the federal test for Sandra H., 150 N.H. at 638. While the federal test for intermediate scrutiny

Although we apply an intermediate level of scrutiny to a broader category

principles of law have so far developed as to have left this test “no more than a

854-55 (1992). As the discussion below demonstrates, we believe that we must 505 (2003); Planned Parenthood of Southeastern PA. v. Casey, 505 U.S. 833, justification. Jacobs v. Director, N.H. Div. of Motor Vehicles, 149 N.H. 502, seen so differently, as to have robbed the old rule of significant application or of proving otherwise upon the challenger.

by the legislature as justification for the statute. . . . Our sole inquiry is

have presumed that the challenged legislation was valid and placed the burden

that the government’s objective merely be “legitimate.”

scrutiny). Under both tests, “we will not examine the factual basis relied upon Jensen’s, Inc., p. 13 130 N.H. at 768 (presume legislation valid under intermediate 132 (1995) (burden of proof on challenger under intermediate scrutiny), and N.H. at 270 (rational basis), with Quirk v. Town of New Boston, 140 N.H. 124, record.” Compare Verizon New England, 151

(intermediate scrutiny). For both rational basis and intermediate scrutiny, we England, 151 N.H. at 270 (rational basis), with Carson, 120 N.H. at 933 related.” Compare Verizon New governmental interest, while under rational basis, they need only be “rationally another. For both rational basis and intermediate scrutiny, we have required review under our State Constitution have remained substantially similar to one By contrast, our tests for intermediate level scrutiny and rational basis “legitimate.” U.S. 53, 77-78 (2001) (O’Connor, J., dissenting). must be “important,” while rational basis requires that the interest be governmental ends therefore is of no moment.” Tuan Anh Nguyen v. INS, 533 “[t]he fact that other means are better suited to the achievement of basis which might support it, whether or not the basis has a foundation in the probative of the validity of the classification,” while under rational basis review, burden is on the one attacking the [legislation] to negative every conceivable “the availability of . . . alternatives to a . . . classification is often highly obligation to produce evidence to sustain the . . . classification”; rather, “the Center, Inc., 473 U.S. 432, 440 (1985). Further, under intermediate scrutiny,

Compare Virginia, 518 U.S. at 533, with Cleburne v. Cleburne Living the classification rests with the government,

respects. For instance, under intermediate scrutiny, the burden of justifying under intermediate scrutiny, the means must be “substantially related” to the tests for intermediate scrutiny and rational basis review differ in a number of Moreover, the fit between the means employed and the ends served is different;

Compare Virginia, 518 U.S. at 533, with Heller, 509 U.S. at 320.

omitted). Additionally, under intermediate scrutiny, the governmental interest

Heller v. Doe, 509 U.S. 312, 320-21 (1993) (quotation and brackets

while under rational basis review, the defender of the classification “has no

As currently articulated by the United States Supreme Court, the federal

of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 294 (1982). questioned whether the Royster standard of review remains good law. See City 461. Following its decision in Craig, the United States Supreme Court has “discriminatory classifications based on sex or illegitimacy.” Clark, 486 U.S. at generalizations.” Id. Federal courts apply this test for intermediate scrutiny to litigation.” Id. Further, the government “must not rely on overbroad justification is “genuine, not hypothesized or invented post hoc in response to this “demanding” burden, the government must demonstrate that its p. 14 14

legislation be substantially related to an important governmental objective. intermediate scrutiny under the State Constitution requires that the challenged

hypothesized or “invented

DUGGAN, GALWAY and HICKS, JJ., concurred.

with this opinion. articulated this new standard, we remand for further proceedings consistent 120 N.H. 925 (1980), to the extent that it did not employ this standard. Having “overbroad generalizations.” Id. Accordingly, we overrule Carson v. Maurer,

To meet this burden, the government may not rely upon justifications that are legislation meets this test rests with the government (in this case, the City). Id. Virginia, 518 U.S. at 533. The burden to demonstrate that the challenged

To eliminate the confusion in our intermediate level of review and to

Dist. v. Levine, 152 N.H. at 539-40 (quotation omitted). the challenged legislative classifications are based.” Winnisquam Reg. Sch. whether the legislature could reasonably conceive to be true the facts on which