New Hampshire Municipal Association
New Hampshire Municipal Association

Court Update

Zoning Ordinance Ban on Halfway Houses Denies Equal Protection Under the Law Under Heightened ‘Intermediate Scrutiny’ Test

Community Resources for Justice, Inc. v. City of Manchester
No. 2007-646, 4/18/2008

This is the second New Hampshire Supreme Court appeal within two years arising out of the effort by Community Resources for Justice, Inc. (CRJ), a nonprofit organization, to locate a halfway house in Manchester under a contract with the Federal Bureau of Prisons. In Community Resources for Justice, Inc., v. Manchester, 154 N.H. 748 (2007), CRJ appealed from denial of a variance and also claimed that the zoning ordinance denied CRJ equal protection of the laws under the New Hampshire Constitution by discriminating against halfway houses. In that decision the Supreme Court took the opportunity to revamp the test for determining whether a feature of a zoning ordinance is a violation of an owner’s constitutional right to equal protection of the laws with respect to the use of property. The Court articulated a more rigorous test for “intermediate scrutiny” with the following features:

The Court remanded the case to the trial court for further proceedings. (See New Hampshire Town and City, March, 2007, “Court Update,” page 29.)

Following remand, the trial court held a hearing. The City argued that the ban on halfway houses is valid because there is “no doubt” that halfway houses are an “undesirable” land use and “[p]reventing a concentration of undesirable uses, including correctional institutions, within the City of Manchester is an important governmental objective to which the City’s zoning restriction is substantially related.” CRJ had submitted written letters, reports and studies from police, community and religious leaders, and law enforcement experts as evidence that the halfway house would provide an important social benefit and not pose any threat to neighborhood safety or property values. The trial court discounted the City’s argument as speculation and, based on the pleadings, argument and evidence in the certified record, found that the zoning ordinance as applied to CRJ violated CRJ’s equal protection rights by discriminating against halfway houses as compared to “other similar residential facilities and institutions.”

The trial court then granted CRJ a “builder’s remedy,” a direct ruling that the project as presented is reasonable and may be built without further municipal interference. The “builder’s remedy” is a concept formulated in affordable housing litigation to reward a successful plaintiff who has invested substantial time and resources in litigation in pursuit of a worthy objective. See Soares v. Atkinson, 129 N.H. 313 (1987), and Britton v. Chester, 134 N.H. 434 (1991).

On appeal by the City, the Supreme Court affirmed the trial court’s decision, quoting with approval the trial court’s conclusion that “[t]he City’s reliance upon … hypothesized and overly generalized justifications is insufficient to meet the demanding intermediate scrutiny standard,” and agreeing that “the record is devoid of evidence justifying the City’s absolute ban on CRJ’s use of its property as a federal halfway house.” The Court also upheld the builder’s remedy as the most likely way to assure that “transition housing for federal prisoners is actually built.”

This case illustrates the challenges presented by the new intermediate scrutiny equal protection standard. Every zoning ordinance contains numerous classifications that represent policy choices: lists of selected permitted and prohibited uses; zoning maps that draw district lines; dimensional standards that affect all parcels in precisely the same way. In contested cases, municipalities will need to justify particular classifications of these types by proving how they actually promote important government objectives.

Please be advised that the foregoing case summary is based upon a Supreme Court slip opinion. Slip opinions are subject to change following motions for rehearing and/or motions for reconsideration. The Court may also modify the opinion without motion. The final version of the Court’s opinion is that which appears in the New Hampshire Reports.

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