How PPNNE got its Manchester building – and how a Federal Court helped

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Part 1: the local view, from the prolifers on the scene

These are excerpts from an article in the July 2001 edition of New Hampshire Right to Life News. I was on the NHRTL board at that time, and Planned Parenthood of Northern New England was trying to set up shop in Manchester. The article I am excerpting was written by Manchester pro-life activists who were involved in the fight to prevent anyone from opening an abortion facility on a Manchester residential street. My own comments are set off in brackets.

Planned Parenthood vs. City of Manchester and NH Right to Life, from July 2001 NHRTL News

[no byline; article is accompanied by photos of Barbara Hagan, Rep. Kathy Souza, and Betty Breuder, calling them the “leadership team opposing Planned Parenthood’s proposed abortuary in Manchester”]

It was over a year ago in April of 2000, when Dick Anagnost, a Manchester developer and Steve Schubert, his partner, hired an Engineer to obtain a variance changing a former auto parts/retail building. The building was located in an R3 Zoned area of the city.This meant that the area was zoned for multi-family residential. The auto parts retail had been vacant for some time. Still, in order to obtain a different use for the building, the owners needed a Variance. The street in question is Pennacook Street located off Elm Street in Manchester’s northern end.

If you travel to Pennacook Street, you can see that it is residential, with many multi-family dwellings.There are a few businesses, but even they are considered low-key. There is an accountant on the corner of Pennacook and Chestnut, a deserted gas station on one of the corners of Elm and Pennacook, and a small variety store up the street. Basically, the building in question faces several multi family residential dwellings. There are numerous small children that play on the sidewalks and in the street. There is no buffer zone, per se. The building basically sits next to the sidewalk that abuts the street. There is also an off-street parking area.

So, the process began. The Zoning Board met and heard the petition of the owners of the building at 24 Pennacook Street to convert the auto parts building into a “4.03(28)b medical use office.” This italicized phrase is extremely important to remember. Manchester has many different zoning variances that are all given numbers and definitions. This particular number, 4.03(28)b refers to a “Business, professional and general offices, including but not limited to: Bank, broker, employment agency, insurance, lawyer, doctor, etc.”  Nowhere in this definition does the phrase “medical offices” appear.

The phrase “medical offices” is part of another Variance definition, with a totally different meaning and impact. Under the former definition 4.03(27), one will find “Offices of licensed medical or dental practitioners, but limited to general out-patient care and diagnosis of patients.” This means medical offices with outpatient care, and could include walk-in patients who do not have appointments.

The use of the building in the request, as presented to the public and the Zoning Board, would be considered on how it impacts the neighborhood that is already there. In order to obtain any variance, the owner of the building has to meet several important criteria. These criteria are: (1) The proposed use would not diminish the surrounding property values; (2) That granting the Variance would be in the public interest; (3) The denial of the Variance would mean unnecessary hardship to the owner because he could not use the building for anything else; (4) That substantial justice would be done by granting the Variance; and (5) That granting the Variance would not be contrary to the Spirit of the Zoning Ordinance.

The owners of the building were very clever, or so they thought. They hired an agent by the name of Todd Connors, to fill out the Variance Application on their behalf. An Engineer by the name of Ken Rhodes gave the presentation to the Zoning Board. The request they made for the variance deliberately mixed two different definitions, that of 4.03(28)b and 4.03(27). The Zoning Board, apparently, looked upon the variance request as for a doctor’s office. Mr. Anagnost, one of the owners, did show up late to the Zoning Board hearing on the night of April 5, 2000, but he offered no information.

When directly asked, “What was going in there?” Neighbors were told, “two or three doctors (general practitioners) and their staff.” This answer is in line with the 4.03(28)b Variance definition. Therefore, no neighbors felt it necessary to come to the Variance hearing. The new use, as stated, did not pose any threat to the peace and security of the neighborhood. The Zoning Board asked the same question. “What exactly is going in there?” The Engineer replied, “two or three doctors … and their staff.” The ZBA granted the variance.
It was all very quiet in the neighborhood, until the real identity of the real use of the building was revealed. Up until the Variance had been granted, no mention was made of Planned Parenthood or a clinic.

You have probably read the accounts in the Manchester Union Leader, Concord Monitor and other newspapers. [Note: the Union Leader broke the story of bulletproof windows being installed at 24 Pennacook Street during this time, which gave rise to speculation about the nature of the business about to move in.] You have no doubt heard Pro Life Activists, Barbara Hagan and Rep. Kathleen Souza discussing the issue on local radio and television programs. They have filed an appeal in the Hillsborough County Superior Court challenging the Variance and alleging that fraud may have been involved….Remember that no Building Plan with bulletproof glass was presented to the public until after the Variance was granted and the building permit application was submitted.

Planned Parenthood wasted no time in Manchester, New Hampshire. They were not about to be made to follow the Zoning Laws. They are afraid of the action Hagan and Souza have filed in Hillsborough County Superior Court challenging the Variance. Planned Parenthood immediately grabbed the spot light and went to Federal District Court in Concord, New Hampshire to try to claim their Civil Rights had been violated.

Manchester city officials have not been very dynamic in enforcing the zoning laws or fighting this clinic….The City Attorney …supposedly forgot to file papers in Federal Court and almost lost the case on default. In his second order from Judge McAuliffe, he called the City Attorney “mute” with respect to a defense against the claims Planned Parenthood and the owners of the building made. The City offered no defense. They offered no witnesses. They offered no documents to tell the judge why Planned Parenthood could not have the use of the building at 24 Pennacook Street. The Judge had no choice, but to allow Planned Parenthood the rights to regain its building permits and continue building, for now.

Fortunately, New Hampshire Right to Life also followed Planned Parenthood into Federal Court. We asked the judge to allow us to intervene and participate in the case. As one of our reasons, we told the judge we felt the City of Manchester would not put up a very good fight.

The judge allowed us to intervene, but neglected to mail us our notice to the April 20, 2001 hearing before the Court. It was not good news, but it provided us with an opportunity to ask the Court to reconsider its decision to let Planned Parenthood go forward with the 24 Pennacook Street project. We have explained to the Federal Court that this is not a matter of Civil Rights. It is a matter of the wrong Variance. We are currently awaiting his reconsideration, and thank everyone for his or her continued prayers. [Unfortunately the reconsideration did not change the original decision.]

On April 27, 2001, Souza and Hagan, and the abutters to 24 Pennacook Street appeared in Hillsborough County Superior Court. The Judge in Superior Court, Arthur Brennan has already ruled that a “Family planning clinic appears to be a different use.” His recent decision, following the April 27 hearing is a green light in our favor.

…[W]e must prove that the applicant did not provide reasonable warning so that abutters or interested parties could have knowledge enough to appear at the ZBA hearing and object. We have to prove that the applicant knew Planned Parenthood was going to be the tenant. We also must prove that Planned Parenthood is a legally different use than that which is provided in the Manchester Zoning Ordinance definition.

If the notice to the Public was sufficient, then our petition will be denied by the Superior Court. If the notice was not sufficient, and there was fraud, then the Variance is void and Planned Parenthood will not be allowed to open on Pennacook Street. ..

[Note: as we now know, and as is outlined in the federal order below, PPNNE was indeed allowed to open on Pennacook StreetThe federal court order on civil rights grounds superceded any state Superior Court action on procedural grounds.]

Part 2:  United States District Court preliminary injunction

Without an online law library at my disposal as I write, I am indebted to Jill Stanek for making this order available on her web site (beginning at page 17 of the PDF). The case is Planned Parenthood of Northern New England and 24 Pennacook Street LLC v. City of Manchester (not reported in F.Supp.2d).  The full preliminary ruling, handed down 4/27/01, is seven pages long. These brief excerpts are from the court’s preliminary granting of the injunction sought by PPNNE in U.S. District Court. While intervenor status was granted later to some pro-life parties as described in part 1 above, the court’s final order was in PP’s favor. The following excerpted text is from the preliminary order, without edits (except for ellipses) or comment. Footnotes are omitted.

…Plaintiffs’ application for preliminary injunctive relief was heard on April 20, 2001….[T]he following pertinent facts were developed. The Owner obtained a variance under under the applicable city zoning ordinance which allowed the building at issue (formerly used as an auto parts store) to be used for “medical offices.” The city contends, however, that it was under the impression, in granting the variance, that the permitted “medical office” use would involve two to three “general practitioners” and associated staff. It further contends that a restriction to that effect is necessarily implicit in the variance actually issued. (On its face, the variance is not conditional.) After obtaining the variance, the Owner entered into a lease with PPNNE for most of the building’s space. PPNNE and the Owner also entered into an agreement to fit the leased space for a medical office use.

Building plans were submitted to the Building Commissioner, who, after reviewing the plans and insuring compliance with the medical office use authorized by the variance, issued a building permit. After obtaining the building permit, the Owner and PPNNE made arrangements to finance and complete the necessary construction work.

Several months later, in the fall of 2000, PPNNE publicly announced its intent to occupy the building and provide medical services to the residents of greater Manchester, including family planning and, at some future date, abortion services. That announcement provoked some public opposition to Planned Parenthood’s use of the building, and various people sought relief from the Zoning Board of Adjustment. By a divided vote, the ZBA revoked the building permit on January 3, 2001, after hearing from interested parties and members of the public. Plaintiffs then filed this suit seeking to remedy what they see as an unconstitutional deprivation of federal rights under color of state law.

…Discussion: The first point of significance is that the ZBA’s reasons for revoking the building permit are unknown, because they are undisclosed. The board made no findings of fact and provided no explanation for revoking the permit, either orally in the record (in the minutes), or by written decision.

…The next point of significance is (and the city agrees) that the variance permitting the Owner to use the property in question as a medical office remains in effect, unmodified….[T]he refitting plans submitted by the Owner and PPNNE to the Building Commissioner describe work that, when completed, will be entirely consistent with the medical office use authorized by the variance, as the city itself construes the variance.

The city’s counsel also agreed, necessarily and correctly, that the variance sought for the medical office use could not have been lawfully or constitutionally denied based merely upon the identity of the Owner’s tenant, Planned Parenthood of Northern New England, nor on the basis that abortion services would be provided as part of the “general practice” of medicine on the site (whether by PPNNE or a “general practice physician”). The minutes of the January 3, 2000, ZBA meeting suggest some confusion on the part of ZBA members as to the effect of constitutional limits on their municipal authority – but it is by now clear that personal opposition to abortion or personal disapproval of Planned Parenthood’s activities cannot serve as a lawful basis for denying a variance or making other zoning decisions.

…Irreparable injury: The ZBA’s decision to revoke the building permit significantly impacts upon plaintiffs’ fundamental and constitutionally protected rights, and the burden imposed is more than de minimus. By revoking the permit, the ZBA halted construction of medical offices which are entirely consistent with a currently authorized use of the building pursuant to the existing variance – even as the city perceives and construes that variance.

The ZBA’s decision to revoke the building permit unquestionably results in irreparable injury to plaintiffs, as well as PPNNE’s patients. By revoking the permit, the ZBA significantly interrupted and delayed PPNNE’s patients’ ability to consider and obtain family planning, contraceptive, and at some point, abortion services, by delaying PPNNE’s (as yet) legitimate occupancy of the building. Because the burden imposed on plaintiffs’ fundamental rights is more than de minimus, strict scrutiny applies. …Absent injunctive relief, plaintiffs’ protected constitutional rights would continue to be abridged and plaintiffs (and their patients) will continue to suffer irreparable injury.

…Accordingly, the City of Manchester, its Zoning Board of Adjustment, their employees, agents, servants, attorneys, and anyone acting for or in concert with them, are hereby preliminary enjoined from:

  1. revoking the building permit issued to the plaintiff Owner;
  2. seeking to enforce any cease and desist order issued relative to construction carried out pursuant to the building permit previously issued to the Owner;
  3. interfering with or frustrating completion of the construction project authorized by the previously issued building permit; and
  4. taking any enforcement action whatsoever based upon or related to the ZBA’s revocation of the previously issue building permit.

SO ORDERED.