Supreme Court sends Brookside program back to Manchester Zoning Board
"It's almost like a split-the-baby decision," said Peter R. Chiesa, a lawyer in the City Solicitor's Office. "I don't think there's any clear winner or loser."
The Rev. Dr. Dawn Berry looked at the ruling as "partly good news for us. I wish it would be over."
A lower court ruled about a year ago that Brookside did not need a variance, which the church obtained from the city's Zoning Board of Adjustment, in order for Granite Pathways Inc. to operate on the church's property a voluntary program designed to help people with serious mental health problems obtain employment.
Stephen Bartlett and eight other North End families sued the city after the variance was granted in August 2010. Chiesa, representing the city, maintained the zoning board acted properly in issuing the variance.
Hillsborough County Superior Court Judge Jillian Abramson, however, vacated the variance, saying the church never needed it in the first place because the Pathways program was an accessory use.
The Supreme Court, however, said while that was Abramson's right, in the Brookside case there was not enough of a factual record concerning the issue of accessory use for her to reach that conclusion.
The high court remanded the case back to the superior court and said the ZBA should "thoroughly explore the accessory use issue, giving all interested parties, including the city's Planning and Community Development Department, an opportunity to present evidence and arguments as to whether the Granite Pathways Clubhouse is a lawful accessory use of Brookside's property and, if not, whether Brookside should receive a variance."
Rev. Berry explained the church originally sought the variance after a city official said it needed one. The church applied for it without consulting an attorney, and the variance was granted after several hearings.
Attorney Ann Barbara Hantz of Manchester, who represented Brookside in the court proceedings, said she believes the Supreme Court wants to make sure the people are heard on the accessory use issue which, she said, wasn't raised until the case went to Superior Court and Judge Abramson cited it in her decision.
She said in other communities across the country, a program such as Granite Pathways is considered an accessory use, much like a church operating a homeless shelter or food pantry.
In the decision, the court sided for the most part with the church and against the neighbors when it came to the variance.
Hantz said that her client is happy that "in an esoteric kind of way the court rejected" a lot of the neighbors' arguments against the variance being issued.
Rev. Berry said Granite Pathways has operated the non-clinical, voluntary day program for adults diagnosed with a major mental illness since October 2010 without any problems.
Attorney John G. Cronin Jr., who represented the North End families, was not available for comment, and the New Hampshire Union Leader was unable to reach Bartlett.