2012-176, Stephen Bartlett & a. v. City of Manchester

Manchester Zoning Board of Adjustment (ZBA), which granted the intervenor, of the Su perior Court (Abramson, J.) vacating a decision of the City of LYNN, J. The petitioners, Stephen Bartlett and others, appeal an order

intervenor. Hantz and Susan A. Manchester on the brief, and Ms. Hantz orally), for the Sheehan, Phinney, Bass & Green, P. A, of Manchester (Anna Barbara

the in tervenor’s brief. Peter R. Chiesa, of Manchester, for the respondent, joined in part B of

Muller, Jr. on the brief, and Mr. Cronin orally), for the petitioners. Cronin & Bisson, P.C., of Manchester (John G. Cronin and Daniel D.

No. 2012 - 176 Hillsborough - north ern judicial district

page is: http://www.courts.state.nh.us/supreme. 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 to press. Errors may be reported by E - mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concor d, New Hampshire 03301, of any 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 p. 2 22 as 2

and that Brookside requested a variance because of the denial of its permit application. help organization,” we assume that the organization referenced in the two applications is the same its variance application and the letter denying its permit application refer to a “work - based, self - Although the parties have not supplied a copy of Brookside’s permit application, beca use both 1

activities that have benefitted many people and the neig hborhood for 50 years,” application stated that the organization “would be similar to other church or mandated treatment progra m, but rather would be voluntary. Brookside’s fulfillment.” M embership in t he organization would not be part of any clinical their goals for employment, education, wellness, housing, and personal kind in New Hampshire and would help members “find support in achieving According to the variance application, the organization would be the first of its organization for adult s with mental illness inside Brookside’s carriage house. 1 Pathways, a non - profit corporation, to operate a work - based, self - help In response, Brookside applied to the ZBA for a variance to allow Granite

provisions relative to Zoning Boards of Adjust ment, as may be appropriate.” pursuant to NH Revised Statutes Annotated 674:33 or other statutory “[f]urther proceedings contemplated pertaining to this application must be of Mancheste r.” (Emphasis omitted.) The denial letter informed Brookside that Social service organization, District R - 1B, of the Zoning Ordinance of the City stating that Brookside’s proposed use was prohibited by “Section(s) 5.10 (J) 8 Planning and Community Development Department denied the application, house. The next day an administrative official of the City of Manchester allow a “work - based, self - help organization” to occupy a portion of its carriage In April p. 2 2010, Brookside applied to the City of Manchester for a permit to

petitioner s are abutters to Brookside’s property. p roperty since 1958 and operates such facilities as a non - conforming use. The Street Congregational Church, Brookside has operated church facilities on its house, office space, parking lot, and green space. Formerly known as Franklin The property contains a sanctuary, chapel, cottage, residence building, carriage parcel of land in a residential zoning district in the north end of Manchester. before the ZBA and the superior court. Brookside’s property is a 10.04 - acre The following facts are drawn from the trial co urt’s order and the record

proceedings consistent with this opinion. superior court and remand with instructions to remand to the ZBA for further to reinstate the ZBA’s grant of the variance. W e vacate the order of the Ordinance (ordinance) as a matter of right. Brookside cross - appeals, asking us its property are permitted as accessory uses under the Manchester Zoning court’s order because it rules that Brookside’s proposed use and similar uses of petitioners asked the trial court to reverse th e ZBA’s decision, they appeal th e Brookside Congregational Church (Brookside), a variance. Although the p. 3 3

variance would not be contrary to the p ublic interest; (2) the variance would decision states that Brookside met its burden of proof in showing that: (1) the requested variance subject to the above conditions. The written notice of At the conclusion of the hearing, the ZBA granted Brookside its

2015, whichever occurs first. present purposes as described in the zoning application or December p. 3 31, 7. Variance terminates when no longer used by Granite Pathways for its illegal drugs to be removed from the property. 6. Granite Pathways will cause members u nder influence of alcohol or pedophiles. m embers with the intent that club members cannot include convicted 5. Granite Pathways w ill undertake certain screening of potential club would meld into a halfway house.) occupancy rights or changes its mission. (There were concerns that it 4. Variance terminates if Granite Pathways assigns or subleases its evening which is a church policy. Occasional evenings and weekends; No later than 9:00 PM on any 3. Hours of operati on: Monday - Friday - 9:00 AM to 4:30 PM; Holidays; transportation.) parking. (Some will have motor vehicles; some will use public 2. Occupants to utilize church parking lot for their cars. No on - street time. 1. No more than 35 occupants, which includes staff, on site at any one

condition s: neighborhood meeting, it would be willing to stipulate to the following variance informed the ZBA that, in response to concerns expressed at a recent At the second public hearing, Brookside, now represented by counsel,

scheduled a seco nd public hearing to be held the following month. surrounding property values. The ZBA then tabled Brookside’s application and unnecessary hardship nor that granting the variance would not diminish issues, and further argued that Brookside had neither demonstrated that granting the variance would raise safety, security, and transportation reservations and opposition. Counsel for petitioner Bartlett voiced concern granting Brookside the variance, several members of the community expressed the necessary information.” After a single pa rishioner spoke in favor of ZBA that the variance “application and supporting documents contain[ed] all of hearing, and Dawn Brockett, co - chair of Brookside’s board of trustees, told the application. Representati ves of Brookside and Granite Pa thways attended the Two weeks later the ZBA held a public hearing on Brookside’s

we refer to the organization as the Granite Pathways Clubhouse. and would represent “the essence of what the church is.” Like the trial court, p. 4 4

properties in the area, the property cannot be reasonably used in strict to special conditions of the property that distinguish it from other [A]n unnecessary hardship will be deemed to exist if, and only if, owing

definitio n, the second definition may apply. Under the second defi nition: RSA 67 p. 4 4:33, I(b)(5)(A). If the variance applicant fails to satisfy this first

(ii) The proposed use is a reasonable one.

application of that provision to the property; and public purposes of the ordinance provision and the specific (i) No fair and substantial relationship exists between the general

property that distinguish it from other properties in the area: “[U]nnecessary hardship” means that, owing to special conditions of the

Residence Hotel, 162 N.H. 508, 512 - 13 (2011). Under the first definition: hardship. See RSA 67 p. 4 4:33, I(b)(5)(A), (B); Harborside Assocs. v. Parade unnecessary hardship.” The statute contains two definitions of unnecessary “[l]iteral enforcement of the provisions of the ordinance would result in is done”; (4) “[t]he values of surrounding properties are not diminished”; and (5) interest”; (2) “[t]he spirit of the ordinance is observed”; (3) “[s]ubstantial justice grant a variance if: (1) “[t]h e variance will not be contrary to the public Under RSA 674:33, I(b), a zoning board of adjustment has the power to

use issue rather than [Brookside’s] satisfaction of variance criteria. acted outside of its jurisdiction to the extent it considered the accessory Since [Brookside] did not dispute that a variance was required, the ZBA law. If the use were an accessory use, no variance would be required. accessory church use. The belief is not supported by the facts or the of the variance bas ed on the belief that the proposed use was an [t] hroughout the hearing, a supporting member of the ZBA spoke in favor

67 p. 4 4:33, I(b) (Supp. 2012), and other things, that Brookside had not satisfied the criteria set forth in RSA same conditions. Th e petitioners again mov ed for rehearing, argu ing, among public hearing on the matter, it again granted Brookside the variance with the After the ZBA granted timely motions for rehearing and held a third

hardship. enforcement of the provisions of the ordinance would result in an unnecessary surrounding property values would not be diminished; and ( p. 5 5) literal variance substantial justice would be done; ( p. 4 4) by granting the variance not be contrary to the spirit of the zoning ordinance; (3) by granting the 5

jurisdiction to consider the accessory use issue. Subject matter jurisdiction We first address the petitioners’ argument that the superior court lacked

on the evidence before it, that the decision is unreasonable. RSA 677:6 (2008). except for errors of law, unless it is persuaded by the balance of probabilities, lawful and reasonable, and may not set aside or vacate the ZB A’s decision, its part, the trial court must treat all factual findings of the ZBA as pri ma facie decision unless it is unsupported by the evidence or legally erroneous. Id. For of Somersworth, 162 N.H. p. 5 553, 555 (2011). We will uphold the trial court’s Judicial review in zoning cases is limited. Brandt De v. Co. of N.H. v. City

there is sufficient evidence in the record to support it. accessory use, we should affirm the Z BA’s decision granting a variance because Manchester, argues th at, even if we accept the petitioners’ argument regarding In its cross - appeal, Brookside, joined by the respondent, the City of

decided by the ZBA. contempl ates that the superior court address only issues first considered and argue that the statutory scheme governing judicial review of ZBA decisions on the accessory use doctrine before the ZBA. More broadly, the petitioners denial of its permit application, elected to apply for a variance, and did not rely under the ordinance. The petitioners assert that Brookside failed to appeal the other similar uses of Brookside’s property are permitted as accessory us es matter jurisdiction to consider whether the Granite Pathways Clubhouse and On appeal, the petitioners contend that the superior court lacked subject

cross - appeal followed. because it found that Brookside did not need a variance. This a ppeal and Thus, the court vacated the ZBA’s decision granting Brookside a variance are lawful accessory uses under the ordinance and the accessory use doctrine. that the Granite Pathways Clubhouse a nd similar uses of Brookside’s property unnecessary hardship. Notwithstanding this ruling, however, the court found literal enforcement of the provi sions of the o rdinance would cause Brookside unnecessary hardship, the court ruled that the ZBA had unlawfully found that to the superior court, which vacated the ZBA’s decision. Focusing on After the ZBA denied the petitioners’ motion for rehearing, the y appealed

RSA 674:33, I(b)( p. 5 5)(B).

enable a reasonable use of it. conformance with the ordinance, and a variance is therefore necessary to p. 6 6

(Quotation omitted.) jurisdiction. during the proceeding, including on appeal, and may not waive subject matter juri sdiction. A party may challenge subject matter jurisdiction at any time hear or determine a case concerning subject matters over which it has no adjudicate the type of controversy involved in the action. A court lacks power to persons or the status of things. In other words, it is a tribunal ’ s authority to type of relief sought; the extent to which a court can rule on t he conduct of Subject matter jurisdiction is jurisdiction over the nature of the case and the As we explained in Gordon v. Town of Rye, 1 p. 6 62 N.H. 144, 149 (2011): 2

that, without engaging in this analys is, it could not determine whether l iteral incidental and subordinate to the principal use”). We agree with the trial court princi pal use of the property to which it is related, and which is customarily accessory use of property as “[a] use which exists on the same lot as the accessory use provision. S ee Manchester Zoning Ordinance, art. 3 (defining permissible uses of Brookside’s property under the ordinance, including the hardship, the trial court correctly determined that it had to consider the Brookside’s variance application satisfied the variance criterion of unnecessary under the accessory use provision of the ordinance. In deciding whether other similar uses of Brook side’s property are permitted as a matter of right matter jurisdiction to consider whether the Granite Pathways Clubhouse and Against this statutory backdrop, we hold that the trial court had subject

Plainfield, 1 p. 6 60 N.H. 503, 511 - 12 (2010) (quotation omitted). benefit of the board’s judgment in hearing the appeal.” At water v. Town of to pass upon any alleged errors in its decisions so that the court may h ave the based upon the principle that the local board should have the first opportunity additional grounds.” RSA 677:3, I (emphas is added). The statutory scheme “is court unless the court for good cause shown shall allow the appellant to specify motion for rehearing] shall be urged, relied on, or given any consideration by a 316 (2009) (construing RSA 677:4). Moreover, “no ground not set forth in [the (2008) (construing RSA 677:3); Radziewicz v. Town of Hudson, 159 N.H. 313, Dev. Corp. v. Town of Winchester Zoning Bd. of Adjustment, 157 N.H. 710, 712 the superior court of subject matter jurisdiction over the appeal. See Cardinal see RSA 677:4 (Supp. 2012). Failur e to comply with either requirement divests decision to the court with in thirty days of its denial of the motion for rehearing, of its decision, see RSA 677:2 (Supp. 2012), : 3 (2008); and (2) appeal t he ZBA’s party must both: (1) file a motion for rehearing with the ZBA within thir ty days appeals of ZBA decisions. To establish jurisdiction in the superior court, a RSA chapter 677 vests the superior court with jurisdiction to hear

State v. Ortiz, 1 p. 6 62 N.H. 585, 589 (2011) (quotation omitted). 2 refers to the court’s statutory or constitutional power to adjudicate the case. p. 7 7

of administrative officials enforcing zoning ordinances. RSA 6 p. 7 74:33, I(a) authorizes zoning boards of adjustment to hear and decide appeals of decisions 3

produce evidence sufficient to permit a prima facie inference that the disputed defendant in a private nuisance suit has the burden to plead the doctrine and doctrine before the ZBA. Alfond is inapposite. In Alfond we held that a to benefit from the accessory use doctrine because it failed to plead the Alfond, 129 N.H. 24 (1986), for the proposition that Brookside wai ved its right Similarly misplaced is the petitioners’ reliance on Town of Windham v.

and fairness.”). 2003) (“Claims of implied waiver must be evaluated in light of principles of logic first place. Cf. In re Keeper of Records (XYZ Corp.), 348 F.3d 16, 23 (1st Cir. whether the applicant’s proposed use of pr operty requires a variance in the a variance application limits the ZBA or superior court’s consideration of Newington, 145 N.H. p. 7 727, 731 (2001), we cannot accept that the mere filing of the constitu tional right to enjoy property, see Simplex Technologies v. Town of Concord, 149 N.H. 312, 314 (2003) (quotation omitt ed), and the importance of citizens seek ing approval under zoning ordinances,” Richmond Co. v. City of regulation, the obligation of municipalities “to provide assistance to all their whether unnecessary hardship exists. Given the complexity of zoning reasons discussed above, t he ZBA will invariably c onsider th is issue in deciding applicant’s proposed use of property requires a variance becau se, for the contained in every variance application is the threshold question whether the conclusion. In the absence of contrary legislative intent, we conclude that have found nothing in RSA 674:33, I(b) or our common law that compels this under the accessory use doctrine from the outset of the ZBA proceedings.” We “Brookside effectively waived any claim that its proposed use was permitted Next, we r eject the petitioners’ argument that, by applying for a variance,

file a separate appeal pursuant to RSA 6 p. 7 74:33, I(a) (2008). 3 permitted use and hardship, we are not persuaded that Brookside needed to this circumstance, and given the interconnectedness between the issues of statute. Thereafter, Brookside sought a v ariance under RSA 674:33, I(b). In NH Re vised Statutes Annotated 674:33,” without specifying a subsection of the proceedings contemplated pertaining to this application must be pursuant to letter denyin g Brookside’s application states merely that any “[f]urther failed to appeal the denial of its permit application. The last sentence of the court lacked jurisdiction to consider the accessory use issue because Brookside We disagree with the premise of the petitioners’ argument that the tr ial

the ZBA’s decision to grant Brookside a va riance. subject matter jurisdiction to consider the issue of accessory use in reviewing hardship for Brookside. S ee RSA 6 p. 7 74:33, I(b)(5). Thus, the trial court had enforcement of the pr ovisions of the ordinance would re sult in an unnecessary p. 8 8

fact and rulings of law all reference the issue of accessory use. ZBA’s decision, petition of appeal to the superior court, and subsequent request s for findings of trial court might apply the accessory use doctrine. The petitioners ’ motion for rehearing of the We note that the record refutes the petitioners’ other objection – that they lacked notice that the 4

“requires evidence of substantial customary association of the principal and factual record. See Alfond, 129 N.H. at 30 (prevaili ng on claim of accessory use 273 (2001), resolution of the inquiry still requires a sufficiently develo ped is a question of law, see KSC Realty Trust v. Town of Freedom, 146 N.H. 271, Although we have held th at whether a particular use is an accessory use

lawful accessory us es under the ordinance. the Granite Pathways Clubhouse and other similar uses of the property are Brookside had satisfie d the variance criteria of RSA 6 74:33, I(b), not whether arguments submitted to the ZBA foc used almost exclusively on whether uses of Brookside’s property that are reasonably allowed, the evidence and clarification). While there were isolated references before the ZBA regardin g the Adjustment, 155 N.H. 307, 311 (2007) (trial court may remand to the ZBA for legislative body for further proceedings); Kalil v. Town of Dummer Zoning Bd. of (when vacating ZBA decision trial court may remand to the ZBA or local the ZBA to consider the issue in the first instance. See RSA 677:11 (200 p. 8 8) decide the accessory use issu e, and that it should have reman ded the case to W e conclude that the trial court lacked a sufficient factual record to

property are lawful accessory uses. the Granite Pathways Clubhouse and other similar uses of Brookside’s analysis. We must still determine whethe r the trial court cor rectly ruled that Our rejection of the petitioners’ jurisdictional arg ument does not end our

exists. 4 a property are allowed before it can decide whether unnecessary hardship requirement in the variance context where the ZB A must consider what uses of considerations do not warrant the imposition of an affir mative pleading doctrine. See Treisman, 126 N.H. at 377. We conclude, however, that t hese defendant in a p rivate nuisance suit to plead reliance on the accessory use explained that considerations of fairness, convenience, and policy require a present case, we disagree. In Treisman, which we relied upon in Alfond, we petitioners argue that the pleading requirement of Alfond must apply in the must alternatively plead the accessory use doctrine. To the extent the by his pleading.” (emphasis added)). We did not hold that a variance applicant who claims the benefit of the accessory use doctrine has the burden to raise it defendant’s conduct is to be judged under a zoning ordinance, the defendant 126 N.H. 372, 377 (1 p. 9 9 p. 8 85) (“We therefore hold that wh en the legality of a use is an accessory one. Alfond, 129 N.H. at 29; s ee also Treisman v. Kamen, 9

D ALIANIS, C.J.