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Stephen Bartlett & A. v. City of Manchester

February 25, 2013

STEPHEN BARTLETT & A.
v.
CITY OF MANCHESTER



The opinion of the court was delivered by: Lynn, J.

Argued: January 10, 2013

The petitioners, Stephen Bartlett and others, appeal an order of the Superior Court (Abramson, J.) vacating a decision of the City of Manchester Zoning Board of Adjustment (ZBA), which granted the intervenor, Brookside Congregational Church (Brookside), a variance. Although the petitioners asked the trial court to reverse the ZBA's decision, they appeal the court's order because it rules that Brookside's proposed use and similar uses of its property are permitted as accessory uses under the Manchester Zoning Ordinance (ordinance) as a matter of right. Brookside cross-appeals, asking us to reinstate the ZBA's grant of the variance. We vacate the order of the superior court and remand with instructions to remand to the ZBA for further proceedings consistent with this opinion.

I

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

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

In response, Brookside applied to the ZBA for a variance to allow Granite Pathways, a non-profit corporation, to operate a work-based, self-help organization for adults with mental illness inside Brookside's carriage house.*fn1

According to the variance application, the organization would be the first of its kind in New Hampshire and would help members "find support in achieving their goals for employment, education, wellness, housing, and personal fulfillment." Membership in the organization would not be part of any clinical or mandated treatment program, but rather would be voluntary. Brookside's application stated that the organization "would be similar to other church activities that have benefitted many people and the neighborhood for 50 years," and would represent "the essence of what the church is." Like the trial court, we refer to the organization as the Granite Pathways Clubhouse.

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

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

1. No more than 35 occupants, which includes staff, on site at any one time.

2. Occupants to utilize church parking lot for their cars. No on-street parking. (Some will have motor vehicles; some will use public transportation.)

3. Hours of operation: Monday-Friday-9:00 AM to 4:30 PM; Holidays; Occasional evenings and weekends; No later than 9:00 PM on any evening which is a church policy.

4. Variance terminates if Granite Pathways assigns or subleases its occupancy rights or changes its mission. (There were concerns that it would meld into a halfway house.)

5. Granite Pathways will undertake certain screening of potential club members with the intent that club members ...


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