The defendant, the City of Manchester (City), appeals the orders of the Superior Court (Abramson, J.) reversing the decision of the City’s Zoning Board of Adjustment (ZBA) and remanding to the ZBAwith instructions to grant a variance to the plaintiff, Community Resources for Justice, Inc. (CRJ). We reverse and remand for further proceedings.
I
The trial court recited the following facts: CRJ is an organization that operates residential transition centers or “halfway houses” under contracts with the Federal Bureau of Prisons. In the fall of 2004, CRJ purchased a building on Elm Street in Manchester, intending to use the building as a halfway house. The building is located in the central business district and currently houses both commercial and residential uses. The building has three floors; CRJ intended to renovate part of the second floor and the entire third floor for the halfway house and leave the rest of the building undisturbed.
CRJ applied for a building permit to operate the halfway house. The City’s building commissioner denied the permit application on the ground that CRJ’s proposed use constituted a “correctional facility” as defined by the City’s zoning ordinance. A “correctional facility” is not a permitted use in any of the city’s zoning districts. CRJ appealed the building commissioner’s decision to the ZBA and applied to the ZBA for a variance. The ZBA denied CRJ’s appeal and its request for a variance. CRJ’s rehearing requests were also denied.
CRJ appealed the ZBA’s denials of its challenge to the building commissioner’s decision and its variance request to the superior court. The trial court denied CRJ’s appeal related to the building commissioner’s decision. CRJ did not appeal that decision to this court. Accordingly, for the purposes of this appeal, CRJ’s proposed halfway house constitutes a “correctional facility” within the meaning of the City’s zoning ordinance.
As for the variance request, the trial court remanded the matter to the ZBA for further hearing and to make findings on unnecessary hardship. The court stated that it appeared that the ZBA may have
The ZBA reviewed the matter at a non-public business meeting on February 2, 2006, and, finding that CRJ had failed to satisfy the Simplex requirements for unnecessary hardship, voted to deny CRJ’s request for a variance. CRJ’s request for a rehearing was denied.
On appeal to the superior court, CRJ asserted that the ZBA’s decision was unreasonable because the ZBA misapplied Simplex upon remand and based its decision upon unsubstantiated fears. CRJ also argued that the zoning classification, which prohibits a “correctional facility” anywhere in the city, was unconstitutional.
Upon review of the certified record, the trial court found that “[t]o the extent that board members may have contemplated other more preferable uses for the property, rather than the reasonableness of just the proposed use, the ZBA may have, at least in part, applied the wrong standard.” The court then examined each of the prongs of the Simplex unnecessary hardship test.
With respect to the first prong, the trial court ruled that the ZBA’s determination was unreasonable and unlawful and that CRJ met its burden of showing that it meets the requirements under the first Simplex prong. The court also determined that the ZBA’s findings with respect to the second and third prongs of the Simplex test were unreasonable, unlawful and unsupported by the evidence. The trial court therefore reversed the ZBA’s decision and granted CRJ’s request for a variance. Because it decided the case on other grounds, the trial court did not address or hold an evidentiary hearing upon CRJ’s other arguments. In response to the City’s motion for reconsideration, the court revised its decision by remanding the matter to the ZBA with instructions to grant CRJ a variance.
II
On appeal, the City argues that the trial court erred by: (1) improperly substituting its judgment for that of the ZBA; (2) finding that CRJ met the first prong of the Simplex unnecessary hardship test; and (3) finding that no evidence supported the ZBA’s determination that CRJ failed to demonstrate unnecessary hardship.
We will uphold the trial court’s decision on appeal unless the evidence does not support it or it is legally erroneous. Bacon v. Town of Enfield,
For its part, the trial court must treat all factual findings of the ZBA as prima facie lawful and reasonable. RSA 677:6 (1996). “It may set aside a ZBA decision if it finds by the balance of probabilities, based on the evidence before it, that the ZBA’s decision was unreasonable.” Chester Rod & Gun Club v. Town of Chester,
To obtain a variance, an applicant must show that: (1) granting the variance will not be contrary to the public interest; (2) special conditions exist such that a literal enforcement of the provisions of the ordinance -will result in unnecessary hardship; (3) granting the variance is consistent with the spirit of the ordinance; (4) by granting the variance substantial justice is done; and (5)granting the variance does not diminish the value of surrounding properties.
Id.-, see also RSA 674:33,1(b) (1996).
To establish “unnecessary hardship” when seeking a use variance, an applicant must demonstrate that: (1) a zoning restriction as applied to the applicant’s property interferes with the applicant’s “reasonable use of the property, considering the unique setting of the property in its environment”; (2) no fair and substantial relationship exists between the general purposes of the zoning ordinance and the specific restriction on the property; and (3) the variance would not injure the public or private rights of others. Simplex,
“As our cases since Simplex have emphasized, the first prong of the Simplex standard is the critical inquiry for determining whether unnecessary hardship has been established.” Harrington v. Town of Warner,
Based upon our review of the certified record, we conclude that it does not reasonably support the trial court’s determination that CRJ met its burden with respect to the first prong of the Simplex test. The evidence does not reasonably support the trial court’s conclusion that CRJ’s property was burdened by the restriction in a manner that was distinct from similarly situated property. See Harrington,
The evidence CRJ presented did not demonstrate that its proposed site was unique, as compared to the surrounding lots. Garrison v. Town of Henniker,
Moreover, contrary to the trial court’s finding, there was no evidence in the certified record that demonstrated “how the size and layout of this specific building made the property particularly appropriate for the proposed use.” While the certified record contained a map of the building’s layout, there is no evidence that this layout made this building uniquely suited as a halfway house. See Rancourt,
Absent evidence that CRJ’s proposed use of the property was reasonable, considering the property’s unique setting in its environment, we hold that the trial court erred when it concluded that CRJ met its burden of proof with respect to the first prong of the Simplex test. In light of this conclusion, we need not address whether the evidence reasonably supported the trial court’s determinations with respect to the other prongs of the test. If any one of the ZBA’s reasons supported its denial of a variance, CRJ’s appeal of that decision fails. See Jensen’s, Inc. v. City of Dover,
Ill
CRJ argues that even if the trial court erred when it ruled that the ZBA’s denial of the variance was unreasonable, we may affirm on other grounds. CRJ contends that the City’s ban on correctional facilities is: (1) ultra vires because it exceeds the authority granted the City by the state enabling act, see RSA 674:16-:23 (1996 & Supp. 2006); and (2) unconstitutional because it either deprived CRJ of its state right to substantive due process or violated its state and federal rights to equal protection. While the trial court did not address these arguments, we may do so in the first instance to the extent that they involve questions of law. See Shannon v. Foster,
A
CRJ first argues that the City’s ban on correctional facilities is ultra vires because it exceeds the powers delegated to it by the zoning enabling legislation. See Weave Land Use Assoc. v. Town of Weave,
This court is the final arbiter of the intent of the legislature as expressed in the words of a statute considered as a whole. DeLucca v. DeLucca,
The zoning enabling act, RSA 674:16,1 (Supp. 2006) provides:
For the purpose of promoting the health, safety, or the general welfare of the community, the local legislative body of any city, town, or county in which there are located unincorporated towns or unorganized places is authorized to adopt or amend a zoning ordinance under the ordinance enactment procedures of RSA 675:2-5.
This act “grants municipalities broad authority to pass zoning ordinances for the health, safety, morals, and general welfare of the community.” Asselin v. Town of Conway,
In Britton,
In Britton, the plaintiffs, low- and moderate-income people who had been unable to find affordable housing in the town of Chester, challenged the validity of a zoning ordinance that “provided for a single-family home on a two-acre lot or a duplex on a three-acre lot, and ... excluded multifamily housing from all five zoning districts in the town.” Id. at 437-38. After the plaintiffs petitioned for declaratory and injunctive relief, the town amended its ordinance to permit “multi-family housing as part of a ‘planned residential development’ ..., a form of multi-family housing required to include a variety of housing types, such as single-family homes, duplexes, and multi-family structures.” Id. at 438. The master found that the ordinance, even as amended, “placed an unreasonable barrier to the development of affordable housing for low- and moderate-ineome families.” Id.
We held that the ordinance was ultra vires because it failed to provide for the lawful needs of the community, broadly defined, and therefore conflicted with the enabling act. Id. at 441. We based our holding upon the master’s finding that “‘there are no substantial and compelling reasons that would warrant the Town of Chester, through its land use ordinances, from fulfilling its obligation to provide low[-] and moderate[-]income families within the community and a proportionate share of [the] same within its region from a realistic opportunity to obtain affordable housing.’ ” Id.
CRJ asks that we extend Britton to the facts of this case. The City counters that “[p]rivately run correctional institutions, including halfway houses, as separate from publicly administered correctional institutions, including halfway houses[,] do not implicate the general welfare within the meaning of the zoning ordinance.” The City concedes that its ban on correctional institutions does not apply to State-run institutions and asserts that such institutions “adequately provide for the general welfare.” Neither party addresses whether the City’s ban applies to correctional institutions run by the federal government. See 4 A.H. RATHKOPF & D.A. Rathkopf, Rathkopf’s The Law of Zoning and Planning § 76.23, at 76-79 (2005) (land owned or leased by the United States or a federal agency for purposes authorized by Congress “is immune from and supersedes state and local laws in contravention thereof”).
We disagree with the City that correctional institutions run by private entities under contract with the Federal Bureau of Prisons do not implicate the general welfare within the meaning of the enabling legislation. To the contrary, as a federal judge noted in her letter to the ZBA regarding CRJ’s application for a variance: “It is difficult to imagine a job more important in the criminal justice system than working to ease an offender’s transition back into society. This is important, of course, for the offender. More significantly, it is important for the community to which these individuals will inevitably return.” Moreover, like the ordinance at issue in Britton, the ordinance in this case has an impact beyond the City’s borders. As CRJ observes:
Were this Court to endorse the Ordinance and its application to the proposed use, the communities surrounding Manchester will be free to[] follow Manchester’s lead and ban halfway houses.....The effects of such a result would not end at the New Hampshire border. If the New Hampshire communities were to act as Manchester has, it could effectively push all new halfway houses out of New Hampshire.
We limit our holding on this issue to this question of law and remand for further proceedings. Because this appeal originated as an appeal of the ZBA’s denial of a variance to CRJ and the trial court did not address CRJ’s alternative arguments or hold an evidentiary hearing on them, neither party has yet had an opportunity to present evidence related to CRJ’s argument that the ordinance is ultra vires.
B
CRJ next asserts that the ban on correctional facilities violates its substantive due process rights under the New Hampshire Constitution. In determining whether an ordinance is a proper exercise of the City’s police power, and thus able to withstand a substantive due process challenge under the State Constitution, we apply the rational basis test. Boulders at Strafford v. Town of Strafford,
In an as-applied challenge, such as CRJ’s, we examine “the relationship of the particular ordinance to particular property under particular conditions existing at the time of litigation.” Dow v. Town of Effingham,
The City articulates several legitimate governmental interests that the ordinance conceivably could serve such as:
We next examine whether the ordinance, as applied to CRJ’s property, bears a rational relationship to these interests. As CRJ proposes to construct a halfway house for federal prisoners still serving out their sentences, we conclude that applying this ordinance to CRJ’s property is rationally related to the conceivable purposes for that ordinance. Accordingly, we hold that the ordinance does not violate CRJ’s state constitutional right to substantive due process.
C
Finally, CRJ contends that the City’s ban of correctional facilities, as applied to CRJ, violates its federal and state constitutional rights to equal protection. See U.S. CONST. amend. XIV; N.H. Const, pt. I, art. 12. Although in its initial brief, CRJ appeared to argue that the ordinance was unconstitutional on its face, in its reply brief, CRJ clarified that it “challenged the ordinance ‘as applied’ to it rather than as facially invalid.” As CRJ has apparently abandoned any argument it may have made that the ordinance was facially unconstitutional, we confine our analysis to whether the ordinance is unconstitutional'as applied.
We first address CR J’s claim under the State Constitution, State v. Ball,
As the right to use and enjoy property is an important substantive right, we use our intermediate scrutiny test to review equal protection challenges to zoning ordinances that infringe upon this right. LeClair v. LeClair,
In his concurrence in Gonya, Chief Justice Broderick observed that our test for intermediate-level scrutiny may be overly deferential to challenged legislation by requiring that it be substantially related only to a legitimate legislative objective, rather than an important one. See Gonya,
(1) whether the terms “reasonable” and “arbitrary” should continue to be part of our intermediate test; and (2) whether the governmental objective required by the test should be merely “legitimate” as in rational basis review, or whether we should require an “important” objective due to the “fair and substantial” prong of the intermediate scrutiny test.
Gonya,
A new articulation of this test is necessary to bring it into conformity with our other levels of constitutional review. An intermediate scrutiny standard should require more scrutiny than the rational basis test — namely, that legislation merely be rationally related to a legitimate governmental interest — but a less exacting examination than our strict scrutiny test — namely, that legislation be necessary to achieve a compelling governmental interest and narrowly tailored to meet that end. As currently articulated, it is not clear whether our intermediate scrutiny test does so.
Id. at 538-39 (Broderick, C.J., concurring specially).
To eliminate confusion in our tests for constitutional review, we held in Boulders that our rational basis test “requires that legislation be only rationally related to a legitimate governmental interest” and that it “contains no inquiry into whether legislation unduly restricts individual rights, and that a least-restrictive-means analysis is not part of this test.” Boulders,
CRJ has asked us to clarify our intermediate scrutiny test. It asserts, “Although this Court should find the Ordinance unconstitutional as applied to CRJ under any articulation of middle tier scrutiny, there appears to be some confusion as to which party bears the burden of proof under middle tier review under the New Hampshire Constitution.” CRJ observes that we have previously held that the challenging party bears the burden of proof,
In light of this request, we now take the opportunity to clarify our middle tier scrutiny test. While we recognize that the doctrine of stare decisis “demands respect in a society governed by the rule of law,” Brannigan v. Usitalo,
Several factors inform our judgment regarding whether to depart from precedent, including whether: (1) the rule has proven to be intolerable simply by defying practical workability; (2) the rule is subject to a kind of reliance that would lend a special hardship to the consequence of overruling; (3) related principles of law have so far developed as to have left the old rule no more than a remnant of abandoned doctrine; and (4) facts have so changed, or come to be seen so differently, as to have robbed the old rule of significant application or justification. Jacobs v. Director, N.H. Div. of Motor Vehicles,
Although we apply an intermediate level of scrutiny to a broader category of rights than do the federal courts, we have intended our analysis under this level of scrutiny to be the same as that applied by the federal courts. In re Sandra H.,
We derived our test for intermediate scrutiny, in part, from Reed v. Reed,
In Reed, the Court “struck down a statute that preferred males to serve as estate administrators over equally qualified females.” Id. Rather than merely accept the state’s generalized assumptions that justified this preference, the Court “required the state to conduct hearings to ascertain the qualifications of men and women on an individualized basis.” Id. In this way, the Court scrutinized the classifications under a test that was different from rational basis but not as exacting as strict scrutiny.
Since deciding Reed, the Court has explicitly devised a heightened scrutiny test by which to review gender-based classifications. Id. at 405. This test, first articulated in Craig v. Boren,
As currently articulated by the United States Supreme Court, the federal tests for intermediate scrutiny and rational basis review differ in a number of respects. For instance, under intermediate scrutiny, the burden of justifying the classification rests with the government, see Virginia,
By contrast, our tests for intermediate level scrutiny and rational basis review under our State Constitution have remained substantially similar to one another. For both rational basis and intermediate scrutiny, we have required that the government’s objective merely be “legitimate.” Compare Verizon New England,
To eliminate the confusion in our intermediate level of review and to make our test more consistent with the federal test, we now hold that intermediate scrutiny under the State Constitution requires that the challenged legislation be substantially related to an important governmental objective. Virginia,
Reversed and remanded.