UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Calderia, LLC, et al.
v. Civil No. 24-cv-222-LM Opinion No. 2025 DNH 054 P City of Claremont, NH
ORDER
Plaintiffs Calderia, LLC (“Calderia”), Vanderburgh House, LLC
(“Vanderburgh”), and Gregory B. Richards are respectively the owner, the operator,
and a former resident, of a sober living home. Plaintiffs bring suit against the City
of Claremont, New Hampshire, alleging that the City has subjected them to
heightened scrutiny and selective enforcement of its zoning laws due to animus
against persons in recovery from substance use disorder. Presently before the court
is the City’s motion to reconsider this court’s order (doc. no. 26) granting in part and
denying in part the City’s motion to dismiss. For the following reasons, the City’s
motion is denied.
STANDARD OF REVIEW
Motions to reconsider orders denying motions to dismiss are governed by
Local Rule 7.2(d). See LR 7.2(d); see also Bautista Cayman Asset Co. v. Centro
Cardiovascular de Manatí III, C.S.P., 731 F. Supp. 3d 264, 268 (D.P.R. 2024)
(explaining that motions to reconsider orders that are not final appealable
judgments are not governed by Rules 59 or 60). Under that rule, a party seeking reconsideration must show “that the order was based on a manifest error of fact or
law.” LR 7.2(d). Reconsideration is an extraordinary remedy that should be applied
sparingly, and is usually limited to situations in which there is “newly discovered
evidence” or an “intervening change in the law.” Fujifilm N. Am. Corp. v. M&R
Printing Equip., Inc., Civ. No. 20-cv-492-LM, 2022 WL 18998942 at *1 (D.N.H. Dec.
16, 2022). A motion to reconsider will be denied “when the motion merely rehashes
already presented arguments or introduces new evidence or arguments that could
have been presented before the court’s ruling.” Id.
DISCUSSION
The City advances numerous arguments in its motion, all of which fail to
warrant reconsideration because they (1) were previously considered and rejected
on the City’s motion to dismiss, (2) were not raised in that motion, but could have
been, or (3) do not show that the court made any manifest error. See id. The court
addresses each of the City’s arguments in turn.1
The City first argues that the court erred by reasoning that the Claremont
Code of Ordinance definitions of “Family” and “Boarding House” were relevant to
the Notice of Violations and Order to Vacate (doc. no. 1-1) (the “Notice and Order”).
Instead, the City argues, the operative definition that triggered the purported
necessity of building code upgrades was the definition of “congregate living
facilities” contained in the New Hampshire Building Code. This argument fails to
1 In addition to terms defined herein, this order will use terms previously
defined in the court’s order at doc. no. 26.
2 demonstrate manifest error because, among other reasons, it cannot be squared
with the text of the Notice and Order itself, which states:
This building was previously used and classified as a single-family home and now is unlawfully being used as a boarding house without approved permits or a certificate of occupancy issued. Action: The change in use of the entire building will require plans and a code summary to be done by a NH licensed architect as required by the [building code].
Doc. no. 1-1 at 2. This language supports the court’s reading of the Notice and Order
as stating that the requirement of “plans and a code summary” was triggered by the
“change in use” from “a single-family home” to a “boarding house.” Id. The
Ordinance definitions of “family” and “boarding house” are relevant to the claim
that the Property had undergone such a “change in use.” Id.
Additionally, the court considered the lack of relevant definitions and
citations in the Notice and Order in relation to its broader finding that the Notice
and Order was opaque and lacked a clear explanation of what the City claimed
triggered the requirement for building upgrades, or what specific life safety and fire
protection issues had been identified as missing during the City’s inspection of the
Property. The City’s argument that it was, in fact, the definition of “congregate
living facilities” that triggered the requirement for building upgrades does nothing
to unsettle this finding—the purportedly relevant definition for “congregate living
facilities” is also absent from the Notice and Order. Indeed, the Notice and Order
does not mention “congregate living facilities” at all.
3 The City next argues that the court misapprehended that the New
Hampshire sprinkler law’s exception for recovery houses is conditioned on
additional building safety requirements. This argument does not warrant
reconsideration because (1) the court did indeed recognize that the sprinkler law
exempts recovery houses “pursuant to certain statutory requirements” (doc. no. 26
at 17 n.7), and (2) the fact that the recovery house exception is conditioned on
compliance with such requirements does not undermine the court’s point in
mentioning the exception, which was to denote differences between the facts of
Summers v. City of Fitchburg, 940 F.3d 133 (1st Cir. 2019), and the facts of this
case.
Next, the City argues that the court erred in characterizing the legal
argument that sober homes are prohibited in all zoning districts in Claremont as
“legally dubious.” Doc. no. 27 ¶ 4. To be clear, the court did not find in its order on
the motion to dismiss, nor does it find now, that sober housing is permitted under
the Claremont Code of Ordinances as a matter of law. Rather, the City claimed, in a
June 11 letter to plaintiffs, that sober housing was not permitted in the relevant
zoning district, but never explained or defended that claim in its briefing on the
motion to dismiss. The court expressed skepticism about that claim and the
implication that—because sober housing is not explicitly listed as a permitted use in
the table of uses—it is necessarily prohibited. The City’s argument on this point
fails to warrant reconsideration because (1) it fails to demonstrate any
misapprehension on the part of the court, let alone the manifest error required, (2)
4 it raises arguments that could have been raised on the motion to dismiss, but were
not, and (3) the challenged finding of the court was not strictly necessary to the
court’s decision, as there were other claims in the June 11 letter alone from which
the court found a reasonable inference of discriminatory intent could be drawn.
Next, the City argues that the court erred in determining that the ZBA had
exclusive authority to reconsider the City’s prior application of the zoning
definitions (i.e., that plaintiffs’ use of the Property could not qualify as single-family
use after plaintiffs reduced its occupancy to five unrelated persons). In support of
this argument, the City offers New Hampshire cases to support its argument that
ZBA alone had the authority to provide plaintiffs relief. First, the court notes that
this argument fails to warrant reconsideration because the City could have
advanced it on its motion to dismiss but did not.
Second, even if the cases do show that the ZBA has sole authority to hear
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Calderia, LLC, et al.
v. Civil No. 24-cv-222-LM Opinion No. 2025 DNH 054 P City of Claremont, NH
ORDER
Plaintiffs Calderia, LLC (“Calderia”), Vanderburgh House, LLC
(“Vanderburgh”), and Gregory B. Richards are respectively the owner, the operator,
and a former resident, of a sober living home. Plaintiffs bring suit against the City
of Claremont, New Hampshire, alleging that the City has subjected them to
heightened scrutiny and selective enforcement of its zoning laws due to animus
against persons in recovery from substance use disorder. Presently before the court
is the City’s motion to reconsider this court’s order (doc. no. 26) granting in part and
denying in part the City’s motion to dismiss. For the following reasons, the City’s
motion is denied.
STANDARD OF REVIEW
Motions to reconsider orders denying motions to dismiss are governed by
Local Rule 7.2(d). See LR 7.2(d); see also Bautista Cayman Asset Co. v. Centro
Cardiovascular de Manatí III, C.S.P., 731 F. Supp. 3d 264, 268 (D.P.R. 2024)
(explaining that motions to reconsider orders that are not final appealable
judgments are not governed by Rules 59 or 60). Under that rule, a party seeking reconsideration must show “that the order was based on a manifest error of fact or
law.” LR 7.2(d). Reconsideration is an extraordinary remedy that should be applied
sparingly, and is usually limited to situations in which there is “newly discovered
evidence” or an “intervening change in the law.” Fujifilm N. Am. Corp. v. M&R
Printing Equip., Inc., Civ. No. 20-cv-492-LM, 2022 WL 18998942 at *1 (D.N.H. Dec.
16, 2022). A motion to reconsider will be denied “when the motion merely rehashes
already presented arguments or introduces new evidence or arguments that could
have been presented before the court’s ruling.” Id.
DISCUSSION
The City advances numerous arguments in its motion, all of which fail to
warrant reconsideration because they (1) were previously considered and rejected
on the City’s motion to dismiss, (2) were not raised in that motion, but could have
been, or (3) do not show that the court made any manifest error. See id. The court
addresses each of the City’s arguments in turn.1
The City first argues that the court erred by reasoning that the Claremont
Code of Ordinance definitions of “Family” and “Boarding House” were relevant to
the Notice of Violations and Order to Vacate (doc. no. 1-1) (the “Notice and Order”).
Instead, the City argues, the operative definition that triggered the purported
necessity of building code upgrades was the definition of “congregate living
facilities” contained in the New Hampshire Building Code. This argument fails to
1 In addition to terms defined herein, this order will use terms previously
defined in the court’s order at doc. no. 26.
2 demonstrate manifest error because, among other reasons, it cannot be squared
with the text of the Notice and Order itself, which states:
This building was previously used and classified as a single-family home and now is unlawfully being used as a boarding house without approved permits or a certificate of occupancy issued. Action: The change in use of the entire building will require plans and a code summary to be done by a NH licensed architect as required by the [building code].
Doc. no. 1-1 at 2. This language supports the court’s reading of the Notice and Order
as stating that the requirement of “plans and a code summary” was triggered by the
“change in use” from “a single-family home” to a “boarding house.” Id. The
Ordinance definitions of “family” and “boarding house” are relevant to the claim
that the Property had undergone such a “change in use.” Id.
Additionally, the court considered the lack of relevant definitions and
citations in the Notice and Order in relation to its broader finding that the Notice
and Order was opaque and lacked a clear explanation of what the City claimed
triggered the requirement for building upgrades, or what specific life safety and fire
protection issues had been identified as missing during the City’s inspection of the
Property. The City’s argument that it was, in fact, the definition of “congregate
living facilities” that triggered the requirement for building upgrades does nothing
to unsettle this finding—the purportedly relevant definition for “congregate living
facilities” is also absent from the Notice and Order. Indeed, the Notice and Order
does not mention “congregate living facilities” at all.
3 The City next argues that the court misapprehended that the New
Hampshire sprinkler law’s exception for recovery houses is conditioned on
additional building safety requirements. This argument does not warrant
reconsideration because (1) the court did indeed recognize that the sprinkler law
exempts recovery houses “pursuant to certain statutory requirements” (doc. no. 26
at 17 n.7), and (2) the fact that the recovery house exception is conditioned on
compliance with such requirements does not undermine the court’s point in
mentioning the exception, which was to denote differences between the facts of
Summers v. City of Fitchburg, 940 F.3d 133 (1st Cir. 2019), and the facts of this
case.
Next, the City argues that the court erred in characterizing the legal
argument that sober homes are prohibited in all zoning districts in Claremont as
“legally dubious.” Doc. no. 27 ¶ 4. To be clear, the court did not find in its order on
the motion to dismiss, nor does it find now, that sober housing is permitted under
the Claremont Code of Ordinances as a matter of law. Rather, the City claimed, in a
June 11 letter to plaintiffs, that sober housing was not permitted in the relevant
zoning district, but never explained or defended that claim in its briefing on the
motion to dismiss. The court expressed skepticism about that claim and the
implication that—because sober housing is not explicitly listed as a permitted use in
the table of uses—it is necessarily prohibited. The City’s argument on this point
fails to warrant reconsideration because (1) it fails to demonstrate any
misapprehension on the part of the court, let alone the manifest error required, (2)
4 it raises arguments that could have been raised on the motion to dismiss, but were
not, and (3) the challenged finding of the court was not strictly necessary to the
court’s decision, as there were other claims in the June 11 letter alone from which
the court found a reasonable inference of discriminatory intent could be drawn.
Next, the City argues that the court erred in determining that the ZBA had
exclusive authority to reconsider the City’s prior application of the zoning
definitions (i.e., that plaintiffs’ use of the Property could not qualify as single-family
use after plaintiffs reduced its occupancy to five unrelated persons). In support of
this argument, the City offers New Hampshire cases to support its argument that
ZBA alone had the authority to provide plaintiffs relief. First, the court notes that
this argument fails to warrant reconsideration because the City could have
advanced it on its motion to dismiss but did not.
Second, even if the cases do show that the ZBA has sole authority to hear
appeals of zoning determinations that are allegedly in error, the City does not
establish that this rule governs the request for accommodation that plaintiffs made.
As the court explained in its order: following the reduction in occupancy, plaintiffs
were requesting a determination by the City that they were now in compliance with
the ordinance requirements for single-family use. Thus, they were not seeking to
appeal a determination they alleged was erroneous, they were seeking a new
determination based on a material change in the nature of their use. The caselaw
provided in the City’s motion for reconsideration does not establish that ZBA action
5 would be required in such a situation, and thus cannot demonstrate the manifest
error necessary to warrant reconsideration.2
Finally, the City argues that the court erred by finding that plaintiffs plead
sufficient facts to make it plausible that their requested accommodation was
necessary to allow them an equal opportunity to use and enjoy the Property as non-
disabled persons would have had. Specifically, the City takes issue with the court’s
statement that the necessity requirement was not in dispute, citing a passage from
its motion to dismiss briefing in which it argued that:
[T]he facts as alleged in the Complaint would still be insufficient to survive a Motion to Dismiss as the plaintiffs do not allege, much less demonstrate, that an exception from the building and fire safety codes applicable to boarding houses, is both reasonable and necessary in order to allow people recovering from substance abuse to access housing.
Doc. no. 27 ¶ 7 (quoting doc. no. 14 at 7) (emphasis in doc. no. 14). While the City
did indeed make this conclusory statement regarding the necessity requirement in
its briefing, that dispute only related to the necessity of “an exception from the
building and fire safety codes applicable to boarding houses.” Id. As the court
explained in its order, the City failed to offer any substantive answer to the
necessity of plaintiffs’ allegation regarding its actual requested accommodation:
that five unrelated individuals living communally, who were not in recovery, would
2 The City’s argument that the court erred because ZBA intervention would
have been necessary to grant a variance from the zoning ordinance fails for the same reasons described in this paragraph, and for the additional reason that the court previously considered and rejected the theory that a variance would have been necessary to provide the accommodation plaintiffs sought. See doc. no. 26 at 12-23.
6 have been permitted to live at the Property under the existing single-family
certificate of occupancy. Thus, the City fails to identify any misapprehension by the
court, much less manifest error. To the extent that the City seeks to renew its
argument that plaintiffs failed to allege sufficient facts to make it plausible that an
exception from the building and fire safety codes was necessary, that effort does not
warrant reconsideration because the court previously considered and rejected that
argument. To the extent that the City cites new cases not included in its briefing on
the motion to dismiss to argue that plaintiffs’ allegations regarding necessity were
insufficient, that effort also fails to warrant reconsideration because plaintiffs could
have raised those arguments on the original motion but failed to do so.
CONCLUSION
The City’s motion to reconsider (doc. no. 27) is denied.
SO ORDERED.
__________________________ Landya McCafferty United States District Judge April 22, 2025 cc: Counsel of Record