May 9—Manchester city officials have started to fine the owner of a controversial sober-living home on Orange Street on the grounds that the women-only home violates the city's zoning ordinance, a claim that two outside lawyers familiar with land-use law say won't hold up in court.
In an April 23 letter, the city rejected a request by the company that owns 296 Orange St. to treat the residents there as a family for zoning purposes. Doing so would in effect allow the home to continue without further regulation.
Instead, the city has issued the company a citation that carries a $275 fine. Officials also have threatened daily fines of $550 unless the home, which has operated for more than a year at the location, shuts down or obtains permits to operate as a rooming house, a step the owners have been reluctant to take.
The April letter shows the city at loggerheads with Into Action Sober Living, which operates the home. Both parties cite different laws to support their positions, meaning any decision could end up in courts eventually.
Two lawyers familiar with land-use laws say the city would likely lose if it goes to court over the matter. Any decision would hinge on the definition of family in the zoning ordinance, said Daniel Lauber, a Chicago lawyer and former city planner who specializes in land-use law and has written about recovery homes for legal publications.
Case law is well settled for cities, like Manchester, that include unrelated people in the definition of family, he said.
"To treat these homes any differently than any other family constitutes discrimination on its face," Lauber wrote in an email. Lauber represents neither Into Action nor the city.
The city has said that the Into Action home is a rooming house. Rooming houses are prohibited in the two-family zone where the property is located, so Into Action needs a variance if it wants to remain, the city said.
A variance involves a public hearing, regulatory hurdles like a finding of hardship, and a vote by the politically appointed Zoning Board of Adjustment.
Into Action maintains that the 11 women who live at the house meet the city definition of a family — "a group of individuals, whether or not related, living together in a dwelling unit in a structured relationship constituting an organized housekeeping unit."
As a family, they have a right to live in the house, Into Action maintains.
'City needs this bad'
Jonathan Gerson, co-owner of Into Action, said he is standing firm that the residents of the home are a family.
But he said he doesn't want to needlessly fight the city, so he has asked officials for a reasonable accommodation under the federal Fair Housing Act.
A "reasonable accommodation" amounts to an adjustment to a zoning ordinance that allows people with disabilities to live where they would not otherwise be allowed legally. Federal law recognizes people recovering from addiction as disabled.
Into Action missed a seven-day deadline set in the April 23 letter to apply for a variance, which technically triggers the $550 daily fines. Gerson said his lawyer has asked for an extension, but he is not sure of the process for obtaining the reasonable accommodation.
The city has suggested that the company apply for a variance and then ask the Zoning Board for a reasonable accommodation.
"I got sober in a place like this," Gerson said last week. "I owe my life to a place like this. These places are needed. This city needs these bad."
The city's deputy director of building regulations, Michael Landry, has refused to consider the home's residents a family as long as it's operated by a business.
"The city will not recognize the occupancy as a family when the occupancy is a business entity that operates a number of similar rooming house business enterprises that rents rooms, or portions of rooms, to unrelated adults in excess of the occupancy allowed by the Life Safety Code," Landry wrote on April 23.
That argument sounds misplaced, said a New Hampshire lawyer who specializes in land-use law.
Many people own houses in the city, put them under a limited liability company and rent them out for profit, said Tom Hildreth, who heads the land-use practice group at the McLane Middleton law firm.
"It doesn't matter who owns the property. It matters how the property is being used," Hildreth said.
What can be done
The city's top lawyer, City Solicitor Emily Rice, said she can't address the individual case. But she said the city is pursuing the regulatory process and taking other steps to address concerns raised by both neighbors and the New Hampshire Coalition of Recovery Residences.
The Orange Street sober home has drawn the attention of all three candidates for mayor. Incumbent Joyce Craig and challenger Richard Girard have said the city should enforce its zoning laws, with Girard faulting the city for dragging its feet.
Victoria Sullivan has said sober homes are necessary and said the city lacks clear guidelines for owners. Sullivan has faulted opponents for a not-in-my-back yard mentality.
Hildreth, whose practice includes permitting for controversial cell phone towers, said he often sees municipal regulators and boards bend to neighborhood opposition and political leaders, even when laws are on his clients' side. Lengthy, expensive court fights follow.
"When local zoning ordinances go up against a federal law that's got a clear preemption, the local law is going to give way," he said.
Girard has pointed to a 2019 federal appeals court decision out of Fitchburg, Mass. Judges ruled that recovery homes don't get a pass on city codes in a case involving a mandate for sprinklers.
Gerson points to the city of Methuen, Mass., which settled a federal suit brought by owners of a sober home that the city tried to shut down. Girard, who lives on the same Orange Street block as the sober house, has said Into Action has no respect for city ordinances, noting it opened and remodeled without necessary permits.
Gerson said he is trying to work with the city. Recently he granted officials' request and supplied the names, ages and source of income for the residents.
"How is that remotely relevant to any zoning determination?" said Lauber, the Chicago attorney. The city has said it was following a process used to permit a sober home in Salisbury, Md.
According to Lauber, there are steps the city can take to regulate sober homes.
The city could change the definition of family. The city can place a numerical limit on the number of unrelated people who constitute a family; the U.S. Supreme Court allowed such limits in 1974, Lauber said. Nashua has two definitions for a family, Hildreth said. A family comprises related individuals with no numerical limitation; or a family can be unrelated people, as long as the structure has a minimum of 300 square feet of living space per person.
The city could require homes to be licensed or certified. Neither the city nor state has a licensing procedure for sober homes. In New Hampshire, the New Hampshire Coalition of Recovery Residences certify homes that meet industry standards. The Orange Street home is certified.
The city could limit the number of community residences, such as group homes or recovery homes, in a geographic area such as a block.