## Facts

- Andrew Conforti owned the Empire Theater in Manchester, New Hampshire; Orion Theatre, Inc. and Robert A. Howe operated the theater through lease and sublease arrangements.
- The theater, built in 1912 as a movie house, sat in a B-1 zoning district where movie theaters were not a permitted use.
- The city treated the movie-theater operation as a lawful preexisting, nonconforming use.
- In 1990, the city issued a building permit for interior renovations while expressly recognizing the theater’s movie use as preexisting and nonconforming in the B-1 district.
- After renovations, the operators scheduled live entertainment, primarily rock concerts, and held roughly sixty shows.
- The city notified Conforti that using the theater for purposes other than showing movies violated the zoning ordinance.
- Evidence indicated that when the B-1 zoning provisions were adopted in 1965, the property was used only to show movies.
- City officials stated that, under the city’s interpretation, neither movie theaters nor live entertainment were permitted in B-1 districts; the theater continued to operate only because of its nonconforming status.

## Issues

1. Whether the zoning ordinance permitted live entertainment in a B-1 zoning district.
2. Whether using the property for live concerts was a substantial change and thus an impermissible expansion of the theater’s preexisting, nonconforming use as a movie theater.

## Decision

- The New Hampshire Supreme Court affirmed the superior court’s judgment upholding the zoning board’s decision.
- The court held that live entertainment was not a permitted use in a B-1 district.
- The court held that live concerts constituted a substantial change from the nonconforming movie-theater use and therefore an impermissible expansion.

## Legal Principles

- Uses not listed as permitted in a zoning district are prohibited unless authorized by a valid nonconforming use or other lawful approval.
- A claimed “administrative gloss” requires a consistent, long-standing municipal practice interpreting ambiguous ordinance language; absent such practice, unlisted uses remain barred.
- A lawful nonconforming use may continue but may not be substantially changed or expanded in a manner that alters the character of the use or its effects on the neighborhood.
- A change from movie exhibition to live concerts may be treated as different in kind where it involves different operational needs and greater external impacts (including noise), supporting a finding of impermissible expansion.
- Appellate review gives substantial weight to local zoning bodies’ factual determinations regarding the nature and impact of a change in use.

## Conclusion

The court upheld municipal enforcement against live concerts at the Empire Theater because the B-1 zoning ordinance did not permit live entertainment and the concerts materially changed and expanded the theater’s protected nonconforming movie-theater use.


Conforti v. City of Manchester, 677 A.2d 147 (N.H. 1996)