Bartlett v. City of Manchester
164 N.H. 634
| N.H. | 2013Background
- Brookside Congregational Church owns a 10.04-acre parcel in a residential district in Manchester with church facilities and parking.
- Brookside sought a permit in 2010 for a work-based, self-help organization to occupy part of its carriage house; the city denied citing a zoning provision.
- Brookside applied to the ZBA for a variance to allow Granite Pathways Clubhouse to operate on site as described.
- ZBA held hearings, granted the variance subject to conditions after neighborhood concerns and later rehearings.
- The trial court vacated the ZBA decision, ruling Granite Pathways and similar uses are lawful accessory uses, not requiring a variance.
- On review, the court held jurisdiction to address accessory-use questions, remanding for the ZBA to develop a record on whether Granite Pathways is a lawful accessory use.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did the superior court have jurisdiction to address the accessory-use question? | Bartlett argued the issue was outside review and not raised in the variance record. | Brookside argued accessory use analysis is properly within court review when linked to variance criteria. | Yes; court had jurisdiction to consider accessory use in reviewing the variance. |
| Must Brookside have appealed the denial of its permit to raise accessory-use claims? | Brookside failed to appeal denial, so the issue could be waived. | The interconnectedness of permit denial and variance means an appeal was not required for accessory-use analysis. | No; interrelated issues permit consideration of accessory use in the variance proceeding. |
| Is Granite Pathways a lawful accessory use under the ordinance, or does it require a variance? | Petitioners argued it is not a permissible accessory use and thus requires a variance. | Brookside contends the use is an accessory use under the ordinance. | The record is insufficient to decide; remand needed for the ZBA to develop the accessory-use record. |
| Should the case be remanded to the ZBA for the accessory-use determination? | The ZBA record lacked sufficient evidence on accessory use. | The issue could be resolved at the trial court, but remand is prudent to develop a proper record. | Remand to the ZBA for development of evidence and ruling on accessory use. |
Key Cases Cited
- Brandt Dev. Co. of N.H. v. City of Somersworth, 162 N.H. 553 (2011) (judicial review limited; uphold unless unsupported by evidence)
- Harborside Assocs. v. Parade Residence Hotel, 162 N.H. 508 (2011) (unnecessary hardship definitions in variance context)
- Alfond v. Town of Windham, 129 N.H. 29 (1986) (burden to plead accessory use in nuisance/land-use matters; distinctions with variance)
- Treisman v. Kamen, 126 N.H. 372 (1985) (pleading burden regarding accessory-use doctrine in zoning)
- Kalil v. Town of Dummer Zoning Bd. of Adjustment, 155 N.H. 307 (2007) (remand for clarification when record is inadequate)
- In re Keeper of Records (XYZ Corp.), 348 F.3d 16 (1st Cir. 2003) (claims of implied waiver evaluated logically and fairly)