2007-646, COMMUNITY RESOURCES FOR JUSTICE, INC. v. CITY OF MANCHESTER

Nixon Peabody LLP

No. 2007-646 Hillsborough–northern judicial district

history is set forth in our prior decision. See

This is the second appeal of this case and much of its lengthy procedural

, deputy city solicitor, of Manchester, on the brief Inc. (CRJ). We affirm.

unconstitutional as applied to the plaintiff, Community Resources for Justice,

the Federal Bureau of Prisons. Since 2004, CRJ has sought approval to use a a non-profit organization that operates “halfway houses” under contracts with Manchester, 154 N.H. 748 (2007). We provide a brief background here. CRJ is

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

ordinance prohibiting correctional facilities in all of its zoning districts is an order of the Superior Court (Barry, J.) ruling that the City’s zoning BRODERICK, C.J. The defendant, the City of Manchester (City), appeals

and orally, for the defendant. Thomas I. Arnold, III

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

errors in order that corrections may be made before the opinion goes to press. Hampshire, One Noble Drive, Concord, New Hampshire 03301, of any editorial Readers are requested to notify the Reporter, Supreme Court of New

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as p. 2 Hampshire Constitution. See

as applied to CRJ violates CRJ’s equal protection rights under the New Accordingly, the trial court ruled that the City’s prohibition of halfway houses substantially related to furthering an important governmental interest.

to demonstrate that its wholesale ban on federal halfway houses is

justifying the differential treatment for halfway houses and that the City failed

and Enabling Act.” The court also found that the City provided no evidence invalid exercise of the police power delegated to the City pursuant to the Zoning community, conflicts with RSA 674:16, and is therefore ultra vires as an

ordinance “does not promote or provide for the general welfare of the

conclude that the constitutional issue is dispositive, we choose to address it.

alia they are lacking in evidential support or tainted by error of law.” Phillips v.

argument and evidence in the certified record, the trial court found that the :23 (1996 & Supp. 2007), or equal protection. Based upon the pleadings, the City’s zoning ordinance violates the Zoning and Enabling Act, RSA 674:16-

inadequate to decide whether the ordinance is ultra vires. Because we Berrocales, 141 N.H. 262, 264 (1996), we conclude that the factual record is policy is to address constitutional issues only when necessary, see State v. objective.” Id City of Concord, 145 N.H. 522, 524 (2000) (quotation omitted). Although our

“On appeal, we sustain the findings and rulings of the trial court unless

granted CRJ a “builder’s remedy,” and this appeal followed.

Following remand, the trial court held a hearing to determine whether

challenged legislation be substantially related to an important governmental institutions. Id

Constitution have remained substantially similar to one another.” Id

constitutional rights to equal protection.” Id remanded for further proceedings consistent with this standard. Id. at 763. meets this test rests with the government (in this case, the City).” Id. We

. “The burden to demonstrate that the challenged legislation

“intermediate scrutiny under the State Constitution requires that the concedes that its ban on correctional facilities does not apply to state-run review and to make our test more consistent with the federal test,” we held that use that is not permitted in any of the city’s zoning districts. The City Accordingly, in order to “eliminate the confusion in our intermediate level of constitutes a “correctional facility” as defined by the City’s zoning ordinance, a. at 762. intermediate level scrutiny and rational basis review under our State than evolving in harmony with changes under federal law, “our tests for by CRJ to clarify our intermediate scrutiny test, we acknowledged that, rather

ban of correctional facilities, as applied to CRJ, violates its federal and state CRJ challenged the zoning ordinance, arguing, inter, that “the City’s

. at 755.

approval has been denied by the City on the ground that CRJ’s proposed use building it owns on Elm Street in Manchester as a halfway house. Such hypothesized and overly generalized justifications is insufficient to meet the

p. 3 The trial court concluded that “[t]he City’s reliance upon . . .

our decision in Community Resources

house. substantially related to furthering that interest.” We agree that, pursuant to Probation Office, indicating overwhelming support for the proposed halfway

values. However, the City presented no

governmental interest, and that the absolute ban on halfway houses is United States Attorney, a United States Marshal and the United States

surrounding community, engage in recidivism, or affect surrounding property

from other similar residential facilities and institutions serves an important police, community and religious leaders, law enforcement experts including a scrutiny test, the City was required to prove that distinguishing halfway houses pose any risk to the safety of the neighborhood, and includes letters from As the trial court stated, “Pursuant to the newly articulated intermediate evidence that the proposed use will provide an important social benefit and not 3

prisoners housed at the halfway house would either pose some threat to the Manchester, but, more specifically, to address its concerns that the federal halfway houses is not to prevent a concentration of correctional facilities in

residents from recidivists.” In contrast, the record contains substantial

clear direction in [Community Resources substantially related.” In response, CRJ argues that “[d]espite this Court’s

The trial court found that the City’s actual purpose in banning federal

need for offenders and the community. hypothesized or invented post present a danger to the community such that the City needs to protect its court’s express finding that the proposed federal halfway house is an essential evidence beyond mere speculation demonstrating that federal halfway houses City’s assumption that the proposed use is “undesirable” is contrary to the trial founded in fact. As the trial court stated, “the City has provided no factual

important governmental objective to which the City’s zoning restriction is

generalizations.” Id. (citation and quotations omitted).

this burden, “the government may not rely upon justifications that are governmental objective. Community Resources, 154 N.H. at 762. To satisfy evidence on remand” in support of its position. Furthermore, CRJ argues, the demonstrate that the zoning ordinance is substantially related to an important

including correctional institutions, within the City of Manchester is an “undesirable” land use and “[p]reventing a concentration of undesirable uses, protection because there is “no doubt” that halfway houses are an

expert, study, survey, learned paper – in fact, not even a scrap of paper – in

The City argues that the zoning ordinance does not deny CRJ equal proposed use is reasonable and that the trial court did not exercise

p. 4 its burden of demonstrating by a preponderance of the evidence that its

We hold that the record supports the trial court’s finding that CRJ met

halfway house will not pose a safety risk to the residents.

numerous safety precautions that are part of the proposed use; and that the

centers are considered “good neighbors”; that CRJ specifically outlined of commercial services in the area; that evidence shows that these transition ordinance by allowing residents to take advantage of and contribute to the mix

neighborhood; that the proposed use will incorporate the very purpose of the

values will not be adversely affected; that it will not change the character of the services and commercial enterprises offering job opportunities; that property halfway house, because of its proximity to public transportation, support

transition to society; that the property at issue is particularly suitable for a

plaintiff unbenefitted.” Britton and that there are currently no services to help such individuals with their

the municipality, such as correcting the illegality but taking pains to leave the who are required to return following the termination of their federal sentences guaranteed by the State Constitution. See of the proposed use including: that the City has a large number of individuals Here the trial court made detailed findings regarding the reasonableness complete a proposed project.” Soares v. Town of Atkinson “A ‘builder’s remedy’ is the specific granting to a developer of a right to

consistent with sound zoning concepts. See municipality may not interfere with it.” Id argues that this was error, because CRJ’s proposed project is not reasonable or

efforts in testing the legality of the ordinance and prevents retributive action by ruling that the City’s zoning ordinance violates CRJ’s equal protection rights as

court’s grant of a builder’s remedy. Id. at 442. Absent an unsustainable exercise of discretion, we will not overturn the trial burden of proving reasonable use by a preponderance of the evidence.” Id.

declaration that the plaintiff builder’s proposed use is reasonable, and the The trial court granted CRJ a builder’s remedy. On appeal, the City ordinance is found invalid . . . the court may provide relief in the form of a

(1987). “A successful plaintiff is entitled to relief which rewards his or her to furthering an important governmental interest, we affirm the trial court’s, 129 N.H. 313, 316 showing that its prohibition of federal halfway houses is substantially related federal halfway house. Because the City has failed to meet its burden of N.H. 434, 444 (1991).

762.

of evidence justifying the City’s absolute ban on CRJ’s use of its property as a demanding intermediate scrutiny standard.” We agree that the record is devoid p. 5 5

Affirmed

built.” See likely means of insuring that transition housing for federal prisoners is actually substantial time and resources in pursuing this litigation, and is the most

DALIANIS, DUGGAN, GALWAY and HICKS, JJ., concurred.

Britton, 134 N.H. at 443.

noted, a builder’s remedy here will “compensate CRJ who has invested unsustainable discretion in awarding a builder’s remedy. As the trial court