NH Supreme Court Reverses Superior Court’s Decision Upholding Conditions Placed on Church’s Special Exception Regarding Occupancy & Hours of Operation; Affirms Superior Court’s Decision to Dismiss Constitutional Claims and Grant Wetlands Special Exception

Christ Redeemer Church v. Town of Hanover; Jeff Acker & a. v. Town of Hanover
New Hampshire Supreme Court Case Nos. 2021-0349 and 2021-0356
Friday, April 14, 2023

The Christ Redeemer Church (Church) in Hanover purchased a set of lots on a two-lane road with a thirty-mile-per-hour speed limit and roughly 3,100-vehicle daily traffic and in 2018 applied to Hanover’s Zoning Board of Adjustments (ZBA) for special exceptions from the town’s zoning ordinance to build a permanent church there (it had previously operated out of rented space at Hanover High School). The proposed church building would measure 21,250 square feet, would seat 415 people, would include a parking lot with a 120-car capacity, and would have necessary supporting infrastructure on the lot. One third of the parking spots and the entirety of the church would be built in Hanover’s Single Residence District. Because the rest of the parking and the related infrastructure would be in the Rural Residence District, a use special exception from the ZBA would be required to proceed with building. Additionally, because the northwest portion of the property was in a wetland buffer zone, a wetlands special exception would be required. The Church submitted a host of evidence including a traffic study and sound level assessment and the ZBA conducted a third-party technical review to determine whether the proposed building might affect water resources given the proposed location. After five public hearings, in which Jeff and Lara Acker (Ackers), who lived across the street from the lots in question, were involved, the ZBA granted the Church the wetlands special exception but denied the use special exception. The Ackers moved for rehearing and it was denied; the Church moved for the same and it was granted.  

At the Church’s 2019 rehearing, the ZBA granted the Church the use special exception with a number of conditions:  

1) Seating numbers in the sanctuary and maximum occupancy of the building could be no more than 300 (down from the proposed 415); 

2) Hours of occupation and operation would be 7am to 9pm on weekdays and 8am to 9pm on weekends; 

3) Only 113 parking spaces would be permitted, with a traffic coordinator recommended; 

4) The sanctuary windows must be closed at all times except during emergencies or in case of HVAC failure; and  

5) The Church must install a noise mitigation screen around mechanical equipment.  

Both the Church and the Ackers filed for rehearing and when it was denied, brought suit against the Town of Hanover in the Superior Court. The Ackers brought two appeals under RSA 677:4, one for each special exception; the Church brought a nine-count complaint challenging Hanover’s Zoning Ordinance under the First Amendment, the Equal Protection Clause, and Substantive Due Process doctrine and the first, second, and fourth conditions of the use special exception under the Federal Religious Land Use and Institutionalized Persons Act and RSA 677:4. The Superior Court granted Hanover’s motion for summary judgment on the Church’s constitutional claims and denied the Church’s and granted Hanover’s motions for summary judgment under RUIPA, except for the Church’s challenge to the fourth condition (window closure). The Superior Court also affirmed the ZBA’s granting of the special exceptions except for the window closure condition, and awarded the Church nominal damages in the amount of one dollar and court costs in the amount of $280. It denied the Church’s requests for attorneys’ fees and motion for reconsideration; the Church and the Ackers appealed to the Supreme Court of New Hampshire.  

The Supreme Court reversed the Superior Court’s decision upholding the hours of operation condition because no evidence in the record indicated that church events a bit earlier in the day, such as a 6am prayer breakfast, would cause any detrimental effect on the surrounding area or road; the ZBA had based the condition on when other churches in Hanover held their events, but the Supreme Court held that because they were on different roads than the proposed church, the effects would be different. The Supreme Court also reversed the Superior Court’s upholding of the maximum occupancy conditions, reasoning that basing occupancy limits on the number of allowed parking spaces and estimated vehicle occupancy was flawed because people could come to church by other means of transportation and because the ZBA did not give a justification for departing from the Ordinance or for the inconsistencies in occupancy numbers the departure would cause. The Court held that the Church’s constitutional and RLUIPA claims and attorney fees, builder’s remedy, and additional damages requests were not worth further discussion.  

The Supreme Court affirmed the Superior Court’s decision upholding the ZBA’s granting of the wetlands special exception because it found that the ZBA had evidence upon which it could have reasonably based its decision to grant the special exception.  



Additional Information: 

Ultimately, the Supreme Court reversed the Superior Court’s decision upholding the conditions on the Church’s use special exception regarding hours of operation and occupancy limits and affirmed the Superior Court’s decision rejecting the Church’s additional claims and upholding the ZBA’s granting the Church the wetlands special exception.