![]() ![]() In addition, under the previous standard, the challenger had to prove that the ordinance failed the test under the new standard, the government must prove that the ordinance passes the test. It was not clear before whether this government interest had to be “important” or merely “legitimate.” Now, however, it is clear that the ordinance must be substantially related to an “important” government interest, and that this interest must clearly exist at the time the ordinance is enacted. ![]() The test used to require only that an ordinance be reasonable, not arbitrary, and that it be substantially related to the objective to be achieved. Although we do not yet know the outcome of that case, it is clear from this opinion that equal protection challenges to local zoning ordinances will now be reviewed more rigorously. The Court has remanded the case to the trial court to review using this new standard. To meet this burden, the government may not rely upon justifications that are hypothesized or “invented post hoc in response to litigation,” nor upon “overbroad generalizations.” The burden to demonstrate that the challenged legislation meets this test rests with the government (in this case, the city). Under this new standard, intermediate scrutiny under the state constitution requires the challenged legislation to be substantially related to an important governmental objective. ![]() Therefore, the Court overruled the previous cases and articulated a new standard to be used instead. Constitution, but that test had evolved over time and the New Hampshire test had not. The Court always intended to use the same test that is used under the U.S. However, the Court then explained that the intermediate scrutiny test as used in New Hampshire was no longer correct. Under this original test, the legislation was presumed to be valid and the burden was on the party who challenged the legislation to overcome that presumption. Since 1980, this test required that challenged legislation be “reasonable, not arbitrary, and rest upon some ground of difference having a fair and substantial relation to the object of the legislation.” See Carson v. The Court noted that this case involved the right to use and enjoy property, which it considers an “important substantive right.” When that kind of individual right is involved, the Court uses the “intermediate scrutiny test” to see whether or not the government has violated the individual’s rights. In this case, the city’s zoning ordinance identified halfway houses and other private correctional facilities as a special class of business and treated them differently than all other kinds of businesses. In an equal protection challenge, the plaintiff argues that the government has impermissibly established classifications of citizens and therefore has treated similarly situated individuals differently. One holding addressed CRJ’s claim that the city’s prohibition of halfway houses violated CRJ’s right to equal protection under the state constitution. Although the ultimate result in this case will not be known until that process is complete, the Court’s opinion on this appeal contains two important holdings with implications for all municipal zoning ordinances. CRJ’s application for a variance was denied by the zoning board of adjustment because CRJ had not met the requirements to prove that denial would constitute an “unnecessary hardship.” After a complex appeal process, the Supreme Court sent the matter back to the trial court for further proceedings. (CRJ) sought approval to use property it owned in the city to operate a halfway house under a contract with the Federal Bureau of Prisons. This case involved the City of Manchester’s zoning ordinance, which does not permit “correctional facilities” in any zoning district. ![]()
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