Trustees of Dartmouth College v. Town of Hanover , 171 N.H. 497 ( 2018 )

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THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
Grafton
No. 2017-0595
TRUSTEES OF DARTMOUTH COLLEGE
v.
TOWN OF HANOVER
Argued: June 27, 2018
Opinion Issued: November 6, 2018
McLane Middleton, P.A., of Manchester (Bruce W. Felmly and Wilbur A.
Glahn on the brief, and Mr. Felmly orally), and Orr & Reno, P.A., of Concord
(William C. Chapman and Jeremy D. Eggleton on the brief), for the plaintiff.
Town of Hanover, filed no brief.
Cleveland, Waters and Bass, P.A., of Concord (David W. Rayment and
Mark S. Derby on the brief, and Mr. Rayment orally), for the intervenors.
DONOVAN, J. The plaintiff, the Trustees of Dartmouth College, appeals
an order of the Superior Court (Bornstein, J.) upholding the denial of its
application for site plan approval by the Town of Hanover’s Planning Board for
the construction of an Indoor Practice Facility (IPF). The planning board
denied approval of the application upon finding that it failed to comply with
three general considerations of Hanover’s site plan regulations. The trial court
upheld the planning board’s decision following a hearing at which several
Hanover residents owning properties abutting the proposed site intervened to
defend the board’s decision (abutters). We reverse and remand because the
evidence does not reasonably support the trial court’s findings. The certified
record confirms that the board based its denial of Dartmouth’s application
upon subjective and personal feelings and the trial court unreasonably adopted
a rationale not supported by the record to affirm the board’s decision.
The following facts were found by the trial court or are otherwise evident
from the certified record. In March 2016, Dartmouth submitted its site plan
application seeking approval of the construction of a 69,860 square foot IPF
within the college’s 41-acre athletic complex located in Hanover’s Institutional
Zoning District (I-District). The athletic complex includes two, similarly-sized,
indoor sports facilities — the Thompson Arena and the Boss Tennis Center —
as well as several outdoor athletic fields, tennis courts, and a large parking lot.
Dartmouth proposed building the IPF next to the Boss Tennis Center on an
area known as the “sunken garden,” at the northeast corner of the athletic
complex. The proposed site abuts a neighborhood of single-family homes on
Tyler Road and Chase Road located in Hanover’s Single Residence zoning
district (SR-District).
Hanover created the I-District as a “special district” to meet certain needs
of the institution, here, the college — by permitting the development of facilities
for educational and recreational purposes and large buildings that could
accommodate warehouse and medical center uses. Town of Hanover Zoning
Ordinance (HZO) § 405.6(A), (B). The town enacted stringent height limitations
and setback requirements for buildings within the I-District that are in close
proximity to residential zoning districts. Id. § 405.6(C)(2), (3). For example, no
building within the I-District may be placed within 75 feet of a residential
zoning district boundary, id. § 405.6(C)(2), buildings constructed within 150
feet of a residential zone may not be more than 35 feet in height, and buildings
set back 150 feet or more from a residential zone may be, on average, a
maximum of 60 feet in height. Id. § 405.6(C)(3); see also HZO § 505.1(B)(2)
(describing the method of calculating height of buildings in the I-District).
Hanover’s SR-District provides for one-family residences that are “typical
[to] many New England villages” along with other types of uses by special
exception, including agricultural and governmental uses that complement and
serve single-family homes. Id. § 405.8(A), (B). Additional uses are permitted
within the SR-District by special exception, such as governmental uses for
public safety, education, and recreation. Id. § 405.8(B). The interplay and
impacts, both real and potential, between the uses within the I-District and the
abutting SR-District became a focal point of the opposition to the IPF and the
board’s consideration of Dartmouth’s site plan application.
2
Between April and December 2016, the board held no fewer than 16
meetings, including two site visits, during its consideration of the IPF. The
abutters who reside on Tyler and Chase Roads and own properties closely
abutting the athletic complex vigorously opposed the IPF.1 Dartmouth revised
its site plan application several times to address their concerns, by, inter alia:
(1) adding plantings of landscape screening in coordination with the requests
and preferences of the abutting neighbors; (2) modifying the size of the IPF’s
windows and adding the installation of automatic shades and window glazing
to reduce light spill from the proposed building; and (3) adjusting the IPF’s roof
line to lower the building’s height profile.
Although the Hanover Zoning Administrator informed the board that the
IPF would be fully compliant with the town’s zoning ordinances, including
ordinances regulating height restrictions, setback requirements and building-
to-lot size ratio limitations, the abutters complained about the negative impacts
the IPF would impose on their neighborhood, including a concern that the
building’s height would block an unreasonable amount of sunlight and cast
shadows on their homes. In response, Dartmouth conducted a study of this
potential impact and presented its findings to the board by way of an animated
shadow study.2 The abutters prepared their own interpretation of the college’s
shadow study that purported to calculate the duration of time that the IPF
would cast shadows on their residences.
In anticipation of the board’s final deliberations on the college’s
application, Hanover’s planning board staff prepared a final memorandum
recommending the approval of the application with 21 conditions. Dartmouth
agreed to comply with all 21 conditions. In December 2016, the board
1 In its filings, Dartmouth alleges that the vice-chair of the planning board improperly influenced
the board’s decision by actively participating in the opposition to the college’s site plan. This
board member recused herself from the board’s deliberations on the application because her
residence closely abuts the athletic complex. Dartmouth argues that, despite this member’s
recusal, she represented the abutters and voiced her strong opposition to the project in letters,
e-mails and formal presentations to her fellow board members. The college complains that the
recused board member’s influence on the board was apparent, given that the board ultimately
decided to deny the application based upon the three general considerations that she advanced
throughout the site plan review process. The abutters counter that Dartmouth did not raise this
issue with the trial court. We agree with the abutters. Dartmouth did not raise this issue with
the trial court or identify it in the college’s notice of appeal. Thus, we do not opine on the
propriety of the recused board member’s participation in the opposition to the college’s
application.
2 The record reveals that the abutters’ opposition maintained numerous objections that were not
relied upon by either the board or the trial court and, thus, are not pertinent to this appeal,
including complaints with: (1) the project’s impact on the town’s storm water management
system; (2) the building’s lack of architectural detail; (3) the negative impact the IPF posed to the
abutters’ property values; and (4) the potential noise and sound pollution created by the proposed
building. In response to these complaints, Dartmouth retained professionals to study these
potential impacts and either modified its site plan to address these concerns or presented
sufficient evidence to rebut them.
3
deliberated on the final site plan application and discussed, among other
things, the members’ feelings about the project’s scale and the aesthetic effect
it would have on the adjacent neighborhood. Following deliberations, the
board voted 4-1 to deny the application and issued a notice that enumerated
three reasons for its decision. In doing so, the board found that the college’s
site plan application:
1) Does not conform with the Hanover Master Plan (As cited in
Article IX A 2b of the Site Plan Review Regulations);
2) Negatively impacts the abutters, neighborhood and others, town
services and fiscal health (As cited in Article IX A 2c Site Plan
Review Regulations); and
3) Does not relate to the harmonious and aesthetically pleasing
development of the town and its environs (As cited in Article IX
A 2h Site Plan Review Regulations).
Dartmouth appealed the board’s decision to the trial court, arguing that
the three regulations relied upon by the board are vague, ambiguous, and not
proper standards by which to review a site plan application under either RSA
674:44 (2016), or the New Hampshire and United States Constitutions. N.H.
CONST. pt. I, art. 15; U.S. CONST. amend. XIV. The college also maintained
that the board impermissibly based its decision on personal and subjective
feelings, rather than objective and discernible standards. Hanover appeared
but deferred to the intervening abutters with respect to Dartmouth’s appeal.
The abutters argued that the board’s decision was legal and reasonable and
maintained that the IPF: (1) is massive and out of character with the abutting
residential neighborhood; (2) fails to provide for the harmonious, aesthetically
pleasing, or attractive development of the town; and (3) is capable of blotting
out the sun and shadowing homes in the abutting neighborhood for 7 months
of the year.
The trial court held a one-hour hearing in August 2017 following
substantial briefing and arguments submitted by the college and the abutters.3
The record of the hearing establishes that the parties did not dispute that the
application complied with the requirements of Hanover’s zoning ordinances
applicable to the I-District. Nonetheless, the trial court subsequently upheld
the board’s decision, ruling that the regulations the board relied upon are
valid. The trial court also ruled that the board did not err by basing its
decision, “to a considerable degree on its concerns about the project’s impacts
3The Town of Hanover did not participate in the appeal other than to defer to the abutters and,
assuming the college prevailed on appeal, agree to Dartmouth’s request for the “builder’s remedy”
provided the college complied with the conditions to approval recommended by the town’s
planning board staff.
4
on the abutting homes, as opposed to the entire ‘neighborhood’ of the proposed
facility.” The trial court further ruled that the board members did not
impermissibly rely upon their personal feelings, and concluded that the board’s
decision was lawful and reasonably based upon a particular concern that the
IPF “would block an unreasonable amount of sunlight from reaching abutting
homes.”
On appeal, Dartmouth argues that: (1) the board and the trial court erred
by relying upon general considerations of Hanover’s site plan regulations to
deny the application because the general considerations are vague and fail to
establish clear standards necessary to assess the application under our
“average person” standard, see Town of Freedom v. Gillespie, 120 N.H. 576,
580 (1980) (ordinance must be framed in terms sufficiently clear, definite, and
certain, to enable an average man after reading it to understand when he is
violating its provisions); and (2) the board improperly based its decision on
personal feelings and engaged in ad hoc decision-making, while the trial court
erroneously relied upon unsupported claims and adopted a rationale, not
supported by the evidence or the board’s deliberations, to affirm the board’s
decision. The abutters respond by maintaining that, in general and as applied
to Dartmouth’s application, the location of the proposed IPF provided the
necessary “observable character,” see Town of Deering v. Tibbetts, 105 N.H.
481, 485-86 (1964), such that the “ordinary person” could understand and
comply with the general considerations. The abutters also argue that,
pursuant to our deferential standard of review, the record supports the trial
court’s determination that Dartmouth failed to meet the general considerations.
We now turn to the applicable standard of review. The trial court’s
review of a planning board’s decision is governed by RSA 677:15, V (2016),
which provides that the trial court “may reverse or affirm, wholly or partly, or
may modify the decision brought up for review when there is an error of law or
when the court is persuaded by the balance of probabilities, on the evidence
before it, that [the board’s] decision is unreasonable.” As such, the trial court’s
review is limited. Motorsports Holdings v. Town of Tamworth, 160 N.H. 95, 99
(2010). The trial court must treat the factual findings of the planning board as
prima facie lawful and reasonable and cannot set aside its decision absent
unreasonableness or an identified error of law. Id. The appealing party bears
the burden of persuading the trial court that, by the balance of probabilities,
the board’s decision was unreasonable. Id. The trial court determines, not
whether it agrees with a planning board’s findings, but rather whether there is
evidence upon which its findings could have been reasonably based. Id. Our
review is similarly limited. We will reverse a trial court’s decision on appeal
only if it is not supported by the evidence or is legally erroneous. See id. We
review the trial court’s decision to determine whether “a reasonable person
could have reached the same decision as the trial court based on the evidence
before it.” Star Vector Corp. v. Town of Windham, 146 N.H. 490, 493 (2001)
(quotation omitted).
5
Bearing in mind the foregoing standards of review, we consider
Dartmouth’s second argument on appeal. Specifically, we will address the
college’s argument that the trial court’s decision is unreasonable and legally
erroneous because the court: (1) relied upon factual claims and a rationale, not
supported by the evidence or the board’s deliberations; and (2) upheld a
planning board decision that was based upon ad hoc decision-making and
personal feelings, rather than objective or discernible facts, to find that the
application failed to meet the general considerations. Before assessing the
merits of this argument, we briefly review the planning board’s duties and
obligations in conducting the site plan review process.
“Site plan review is designed to insure that uses permitted by a zoning
ordinance are ‘constructed on a site in such a way that they fit into the area in
which they are being constructed without causing drainage, traffic, or lighting
problems.’” Summa Humma Enters. v. Town of Tilton, 151 N.H. 75, 78 (2004)
(quoting 15 P. Loughlin, New Hampshire Practice, Land Use Planning and
Zoning § 30.01, at 425 (2000)). Site plan review is intended to ensure “that
sites will be developed in a safe and attractive manner and in a way that will
not involve danger or injury to the health, safety, or prosperity of abutting
property owners or the general public.” Id. (quotation omitted). “These
purposes are accomplished by subjecting the plan to the very expertise
expected of a planning board in cases where it would not be feasible to set forth
in the ordinance a set of specific requirements upon which a building inspector
could readily grant or refuse a permit.” Id. (quotation omitted). Site plan
review is, nonetheless, limited. Id. A planning board’s review “‘does not give
the planning board the authority to deny a particular use simply because it
does not feel that the proposed use is an appropriate use of the land. Whether
the use is appropriate is a zoning question.’” Id. (quoting Loughlin, supra
§ 30.09, at 437).
Here, the trial court ruled that the board reasonably concluded that
Dartmouth’s application failed to meet the general considerations set forth in
Article IX 2(c) and (h) of Hanover’s site plan regulations. The trial court found
that the board denied the application out of a concern that the IPF “would
block an unreasonable amount of sunlight from reaching the abutting homes.”
As support for this finding, the trial court cited certain statements made by
board members during their deliberations and relied upon the report prepared
by the abutters in response to Dartmouth’s shadow study. The trial court
quoted this report and expressly relied upon its conclusion that “‘residents of
neighboring homes will lose a significant portion of the direct sunlight when
days are shortest,’ and in some cases, ‘more than 10 [percent] of direct sunlight
will be lost.’” Based on this evidence, the trial court found that “[b]oard
members could reasonably have concluded that the proposed facility would
block a significant amount of sunlight from reaching abutting homes [which] is
objectively both a negative impact upon abutters and inconsistent with the
6
harmonious and aesthetically pleasing development of the environs of the
proposed facility.”
The record of the board’s deliberations, however, does not support the
trial court’s findings or its conclusion. On the record before us, a reasonable
person would not have found, as the court did, that the board rejected the site
plan due to a concern that the IPF would negatively impact the neighborhood
by blocking “a significant amount of sunlight from reaching abutting homes.”
Cf. Motorsport Holdings, 160 N.H. at 103-04 (discussing review of certified
record to determine whether the board sufficiently apprised the applicant of its
reasoning in denying an application for a special use permit). Our review of the
transcript of the board’s deliberations reveals that two board members
mentioned “general darkening,” “blocked views,” the “absence of light,” and
“shading” as potential concerns with the IPF. But, the record also reflects that
these board members did not base their decision on any one of these factors.
Rather, board member Carter acknowledged that “our own site plan regulations
are not sufficiently developed on these topics . . . to deny the IPF [on that
basis].” Board member Sims reasoned that:
What we also have to recognize is that there is some shading
probably already caused by the existing trees, which are already
quite tall and will continue to grow, I hope, in some respects for
many years to come. So the question is, how much more shading
on top of the existing shading, will the building create, and is it
excessive? And I don’t know how we can measure that.
The remaining two board members who voted to deny the application did not
reference shadows, shading, or any other objective criteria. Instead, board
member Mayor concluded that the “building itself, in its location as proposed,
looms as an affront to the adjacent neighborhood,”4 and board member
Criswell reasoned that “the crux of the matter has been the scale and proximity
of the building to the neighborhood and how those things, in turn, affects [sic]
the character.”
The trial court misinterpreted the record because, contrary to its
findings, the board did not deny Dartmouth’s application because the IPF
would deprive abutting homes of sunlight. Although the trial court
acknowledged our prior rulings prohibiting planning board decisions based
upon personal opinions or “vague concerns,” see Ltd. Editions Props. v. Town
of Hebron, 162 N.H. 488, 497 (2011), the court unreasonably relied upon facts
that are not supported by the record of the board’s deliberations to justify the
board’s decision. Because the record does not support the trial court’s finding
4 We recognize that board member Mayor also commented on his responsibility to protect the
neighborhood from a loss of property values as a factor in his decision. We specifically address
this issue later in this opinion.
7
that the board rejected the application out of a particular concern that the IPF
would block an unreasonable amount of sunlight from reaching abutting
homes, the trial court’s decision is erroneous.
Moreover, even if the trial court could have reasonably found that the
board’s deliberations reflect a concern with the IPF’s potential impact on
blocked sunlight and shading, the record does not reasonably support this
conclusion. In its order, the trial court relied upon the conclusions of the
abutters’ analysis of the college’s shadow study that purported to calculate the
hours in a day during which the IPF would cast shadows on five abutting
homes between September 21 and March 21. Based upon these conclusions,
the trial court gathered that “the facility would block up to over an hour of
mostly afternoon sunlight from reaching certain homes during some months of
the year.”5
Absent from the trial court’s analysis, however, is any recognition of the
impact caused by the existing tree line within the border between the athletic
complex and the abutting properties. Notably, the record includes evidence
that the abutters’ analysis of the college’s shadow study acknowledged that
“[t]he presence of foliage on the trees obscures the impact of the IPF shadows”
and board member Sims identified shading caused by existing trees as a basis
for not relying upon this potential impact as a rationale for denying the
application. Dartmouth’s animated shadow study surveyed trees on the
college’s property for height and foliage in an effort to accurately depict
darkening or shadowing.6 The college’s study concluded that any shading that
could be attributed to the IPF was heavily intertwined with the shadows cast by
existing buildings and trees located within the athletic complex that bordered
the abutters’ residences. The trial court ignored the findings reached by
Dartmouth’s expert shadow study and unreasonably adopted the abutters’
conclusions without considering whether their conclusions were reasonably
based upon objective facts, rather than vague and unsupported concerns.
The abutters argue that the board was justified in not crediting
Dartmouth’s shadow study. This argument, however, misses the point because
the board did not rely upon shadowing, darkening, or the abutters’ shadow
report to deny the application. While the board may have been free to question
and reject the methodology or conclusions of the college’s expert study, see
Vannah v. Bedford, 111 N.H. 105, 112 (1971), overruled on other grounds by
Cook v. Town of Sanbornton, 118 N.H. 668 (1978), the trial court could not
5 To the extent the trial court relied on the abutters’ report in making any findings with regard to
shadows or darkening of the abutting neighborhood, these findings and conclusions are not
reasonably supported by the abutters’ study of potential shading on the five closest, abutting
residences.
6 We note that the college’s study did not include animations of shadowing created by the existing
trees located on the neighboring properties on Tyler Road. We thus find it reasonable to conclude
that the conclusions of the college’s shadow study are conservatively drawn.
8
have reasonably ignored the college’s study and adopted the abutters’
conclusory opinions when the record reflects that: (1) the board did not rely on
the abutters’ analysis to deny the application; and (2) the abutters’ analysis
was based upon vague and unsupported concerns and not objective facts.
Our previous rulings do not support the trial court’s deference to the
board’s decision under these circumstances. In Continental Paving v. Town of
Litchfield, 158 N.H. 570 (2009), for example, we upheld the trial court’s
reversal of the zoning board of adjustment’s denial of a special exception where
the applicant presented uncontroverted expert evidence in support of the
exception and the opposing lay opinions and general information were
insufficient to refute the experts’ conclusions. Continental Paving, 158 N.H. at
573-74. Here, the record fails to support either of the trial court’s conclusions
that the board denied the application out of a concern that the IPF would
deprive abutting homes of sunlight, or that there is sufficient support in the
record to conclude that the IPF would negatively impact the abutting homes in
this manner. Accordingly, we cannot conclude that a reasonable person could
have reached the same decision as the trial court based on the evidence before
it.
We next turn to Dartmouth’s contention that the trial court erroneously
found that the board did not rely on personal feelings and ad hoc decision-
making in deciding that the application failed to meet Hanover’s general
considerations. As we have previously noted, the board’s notice of action relied
upon three general considerations of Hanover’s site plan regulation when it
denied the college’s application. The trial court, however, only considered the
board’s determination that the site plan failed to meet two of these general
considerations, Article IX 2(c) and (h) of Hanover’s site plan regulations,
because the abutters implicitly conceded the illegality of the board’s denial of
the application based upon its nonconformance with the Hanover Master Plan.7
We will similarly limit our review to the two general considerations relied upon
by the board and considered by the trial court.
The interpretation of a planning board’s regulations presents a question
of law for this court to decide and we are not bound by the interpretation of the
planning board. Lemm Development Corp. v. Town of Bartlett, 133 N.H. 618,
620 (1990). Moreover, a planning board’s decision “must be based upon more
than the mere personal opinions of its members.” Ltd. Editions Props, 162
N.H. at 497. Although the members of a planning board are entitled to rely, in
7 In Rancourt v. Town of Barnstead, 129 N.H. 45, 48-49 (1986), we rejected a planning board’s
reliance on limited growth recommendations in a master plan when no such limited growth
legislation had been implemented by an action of the local legislative body pursuant to State
statutes. Here, counsel for the abutters informed the trial court that the board members who
voted to deny approval of the application did not base their decision on a lack of conformity with
the master plan, although the record suggests otherwise. Nonetheless, we need not address this
aspect of the board’s decision because this issue was not considered by the trial court.
9
part, on their own judgments and experiences, the board, as a whole, “may not
deny approval on an ad hoc basis because of vague concerns.” Id.
The board decided that Dartmouth’s application failed to meet Article IX
2(c) because the IPF “[n]egatively impacts the abutters, neighborhood and
others, town services and fiscal health.” The board also found that the IPF
failed to meet Article IX 2(h) of Hanover’s site plan regulations, which requires
the board to assess the “relationship of the project to the harmonious and
aesthetically pleasing development of the town and its environs.” The trial
court ruled that the board could have reasonably found that the site plan
application failed to meet Article IX 2(c) because the IPF “would block a
significant amount of sunlight from reaching abutting homes.” However, as we
previously explained, this ruling is inconsistent with the reasoning articulated
by the board during its final deliberations. Thus, the trial court erroneously
interpreted the evidence and misconstrued the board’s deliberations in
upholding the board’s decision that the application failed to satisfy this general
consideration. The trial court similarly erred by sustaining the board’s
determination that the IPF failed to meet Article IX 2(h). The trial court found
that the board could properly “consider and give appropriate weight to a
proposal’s effects on abutting properties,” and with respect to Article IX 2(h), its
relationship with the “‘environs’ of a project.” Yet, both general considerations
explicitly require an assessment of the project’s impact and relationship to the
development of the neighborhood, the town, and its environs, not just its
impact on, and relationship with, abutting properties, or “the environs of the
project.”
When interpreting planning board regulations, which we do de novo, the
general rules of statutory construction govern our review. See Doyle v. Town of
Gilmanton, 155 N.H. 733, 735 (2007). Thus, the words and phrases of the
regulations should be construed according to the common and approved usage
of the language. Id. Webster’s Third New International Dictionary defines
“environs” as “the enclosing limits or boundaries” and “the suburbs or districts
round about a city or other populated place.” Webster’s Third New
International Dictionary 760 (unabridged ed. 2002). Applying the approved
and common usage of the term “environs” to Article IX 2(h) requires an
assessment of the proposal’s relationship to the surrounding districts and not
just to its relationship to the surroundings of the proposed site of the project.
The trial court and the board applied this consideration too narrowly.
The environs to which this general consideration applies includes the
I-District, as well as the SR-District, and a proper assessment of the project’s
relationship to the harmonious and aesthetically pleasing development, must,
at the very least, include both districts. The SR-District is zoned for one-family
residences “as is typical [to] many New England villages,” with other types of
uses allowed by special exception, including agricultural and governmental
uses that complement and serve single-family homes. HZO § 405.8. The
10
I-District is zoned to meet the needs of the institution, or the college, and
permits the development of facilities for educational, recreational purposes,
including warehouses and other uses. Id. § 405.6(A), (B). Thus, the facts at
issue here differ from the circumstances we addressed in Tibbetts, where
Deering sought to protect its well-defined, historic and harmonious town
common. See Tibbetts, 105 N.H. at 483-84. In contrast, the “observable
character” of the neighborhood here includes two similarly-sized, indoor
athletic facilities within a zoning district that obviously permits the
development of buildings like the IPF. See HZO § 405.6(B). Any conclusion
that the IPF lacks conformity or is not harmonious with the character and
development of this neighborhood, or the town and its environs, is directly
contradicted by the applicable zoning regulation and is unreasonable.
The abutters further contend that the trial court properly upheld the
board’s findings that the application failed to meet the general considerations,
because: (1) the IPF represents a “dramatic and permanent change” to the open
views enjoyed by the neighboring residences; and (2) is an “incongruous
structure” that would constitute a “significant expansion” that “will certainly
change the nature, feel and atmosphere of the neighborhood” without a
“meaningful and harmonious transition” from the I-District to the Tyler Road
neighborhood. They urge us to consider evidence allegedly supporting the trial
court’s decision, such as the college’s refusal to consider alternative locations
for the IPF, other than the sunken garden, and the project’s adverse impact on
the property values of the abutters’ residences. Citing our decision in Quinlan
v. City of Dover, 136 N.H. 226 (1992), the abutters remind us that when “a trial
court reaches the correct result, but on mistaken grounds, [we] will sustain the
decision if there are valid alternative grounds to support it.” Quinlan, 136 N.H.
at 230 (quotation omitted). Our review of the record, however, fails to identify a
valid alternative ground that was considered by the board and which supports
the trial court’s decision.
Undoubtedly, the Tyler and Chase Road neighborhood has benefited from
Dartmouth’s undeveloped, open fields, such as the sunken garden, within its
athletic complex. The record confirms that the abutters opposed any
development of the sunken garden to preserve the buffer of open space between
the college’s athletic complex and their neighborhood. The record of the
board’s deliberations evidences the board’s support for the abutters’ position.
Nonetheless, a planning board cannot use the site plan review process to
require a landowner to dedicate its own property as open space for essentially
public use without proper compensation. See Robbins Auto Parts, Inc. v. City
of Laconia, 117 N.H. 235, 236-37 (1977) (ruling that planning board could not
require applicant to grant to the city an easement over the applicant’s property
as a condition to site plan approval); Burrows v. City of Keene, 121 N.H. 590,
598 (1981) (arbitrary or unreasonable zoning restrictions that substantially
deprive an owner of the economically viable use of his land constitutes a
taking). Moreover, the added setback and height restrictions governing
11
I-District developments that abut residential areas already address the concern
for a harmonious transition between zones. See HZO § 405.6(C) (2), (3). The
record does not reasonably support a conclusion that Dartmouth should be
prohibited from developing its property, in a manner consistent with the zoning
requirements, and maintain open space to satisfy a general consideration for
the harmonious and aesthetically pleasing development of the town and its
environs. Accordingly, the trial court erred in upholding the board’s finding
that the IPF failed to meet either Article IX 2(c) or 2(h).
To the extent that the abutters argue that the board relied upon the
project’s potential impact on property values, the record shows that, while one
board member referenced property values as a factor in his decision, the other
board members either rejected or did not mention this rationale as a basis for
denying the site plan application. The record includes studies submitted by
Dartmouth and prepared by a licensed appraiser who determined that the IPF
would not impact the property values of the abutting neighborhood. Evidence
submitted by the abutters refuting this opinion consisted of anecdotal
statements and conclusory estimates, without supporting data, from residents
and retired or unidentified real estate agents. Even if the board denied site
plan approval based upon the IPF’s negative impact on property values, the
record fails to include evidence that would reasonably support such a finding.
See Continental Paving, 158 N.H. at 574. If the board denied the college’s
application because the IPF would negatively impact property values, its
reliance upon this factor goes well beyond the board’s personal judgment and
experience. See Condos East Corp. v. Town of Conway, 132 N.H. 431, 438
(1989). Thus, to the extent that the trial court relied upon this same factor as
a basis for upholding the board’s decision, the evidence does not reasonably
support such a conclusion.
Finally, the abutters argue that the trial court’s decision is sustainable
because the court reasonably concluded that Dartmouth refused to mitigate
the negative impacts of the IPF by, inter alia, placing the IPF on an alternative
location within the athletic complex, sinking the building deeper into the
ground, reducing its height or otherwise pursuing less impactful alternatives.
The abutters rely upon Bayson Properties v. City of Lebanon, 150 N.H. 167
(2003), as support for the proposition that an applicant’s refusal or inability to
meet conditions necessary for planning board approval is a sustainable reason
for denial. Bayson Properties, 150 N.H. at 175-76. The circumstances at issue
in Bayson, however, are inapposite to the facts in this case.
In Bayson, we upheld the trial court’s finding that the planning board’s
denial of a site plan application was reasonable when: (1) the board conditioned
approval on the development of an additional landscape buffer to abate
negative sight, noise and pollution impacts the project imposed on a
neighboring elder care facility; and (2) the board’s decision included detailed
findings of non-compliance with the town’s site plan regulations. Id. at 174-75.
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In that case, the trial court found that the board’s decision was reasonable
because an additional landscape buffer was necessary, the applicant refused to
meet that condition, and the applicant’s offer to reduce pollution by limiting its
vendors’ deliveries could not be realistically enforced on private vendors. Id.
By contrast, in this case, the board did not condition approval of Dartmouth’s
application on any condition that the college refused to meet. Rather,
Dartmouth agreed to comply with all of the conditions the Hanover planning
board staff recommended as conditions to site plan approval, and the board did
not impose any other conditions as a requirement for approval.
Unlike the circumstances reported in Bayson, the board’s decision here
fails to include any detailed findings of non-compliance with specific site plan
regulations or zoning ordinances. Rather, the record reflects that the planning
board staff concluded that the application met all requirements. The record
also establishes that the college repeatedly revised its site plan and performed
multiple studies to determine and address the IPF’s potential impacts on the
abutting neighborhood with respect to sound, light, property values and storm
water discharges. In its application and its subsequent submissions to the
board, Dartmouth repeatedly and reasonably explained why the proposed
location of the IPF was the most logical and feasible site to accommodate the
new facility. During its final deliberative session, board members repeatedly
praised Dartmouth for the time and effort the college devoted to addressing the
concerns of its neighbors. On this record, we cannot find that the evidence
reasonably supports the trial court’s conclusion that the college refused to alter
its site plan to address the concerns of the abutters and to comply with
Hanover’s site plan regulations.
Our review of the record of the board’s deliberative session supports
Dartmouth’s contention that the board unreasonably relied upon personal
feelings and ad hoc decision-making in denying the college’s application. This
record reveals that the board was more concerned with the IPF’s scale and
height, characteristics governed by specific zoning ordinances, than the
building’s aesthetics or its allegedly negative impacts on the environs. There is
no dispute that the application complies with all of the applicable and specific
zoning and site plan regulations. Nonetheless, board member Criswell stated
that, for him, “the crux of the matter [is] the scale and proximity of the building
to the neighborhood and how those things, in turn, affect[ ] the character.” In
explaining his vote, board member Mayor concluded simply that the “building
itself, in its location as proposed, looms as an affront to the adjacent
neighborhood.” We recognize that, on appeal, a planning board’s factual
findings are considered prima facie lawful and reasonable, Motorsports
Holdings, 160 N.H. at 99, but the planning board’s deliberations in this case
cannot logically be considered fact-finding. Rather, the board engaged in ad
hoc reasoning characterized by conclusory statements and personal feelings
unsupported by the evidence or the applicable regulations.
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The comments of board member Sims demonstrate the board’s reliance
on personal feelings and ad hoc judgments to justify its finding that
Dartmouth’s application did not meet the general considerations:
[T]here’s no data point that can be constructed, in my thinking,
that will help us actually measure whether [the IPF is] harmonious
and aesthetic [sic]. It comes to be a very personal judgment as to
whether or not we think that this building, in fact, meets that
standard. . . . And I have come to the conclusion that I feel that it
doesn’t meet the standard of being harmonious development and
aesthetically — an aesthetically pleasing development, so I will vote
to reject the motion [for approval of the application].
(Emphases added.)
It is well settled that a planning board is entitled to rely in part on its
own judgment and experience when acting upon applications for site plan
approval. Condos East Corp., 132 N.H. at 438. Nonetheless, a board’s
decision must be based on more than the mere personal opinion of its
members. Id.; see also Derry Senior Dev. v. Town of Hebron, 157 N.H. 488,
451 (2008) (board may not deny approval on an ad hoc basis because of vague
concerns). In this case, the certified record fails to reveal any objective
evidence supporting the trial court’s decision. Notwithstanding our deferential
standard of review afforded to planning board decisions, we cannot, on the
record before us, conclude that the evidence reasonably supports the trial
court’s decision to uphold the board’s denial of the application.
Here, the planning board essentially decided that the IPF is: (1) too large
and imposing, despite the project’s compliance with Hanover’s I-District zoning
ordinances regulating a structure’s height and size; (2) too close to the abutting
neighborhood, despite the project’s compliance with the unique setback and
height restrictions imposed by its proximity to a residential neighborhood; and
(3) not a harmonious or aesthetically pleasing fit with the development of the
town and its environs, despite the fact that the IPF constitutes a permitted use
within a “special district” that not only contemplates large warehouse and
recreational facilities, see HZO § 405.6(A), (B), but currently includes two
indoor sports facilities of similar sizes. A planning board cannot supersede the
specific regulations and ordinances that control the site plan review process
with their own personal feelings and then justify their reasoning through the
application of general considerations. See Summa Humma Enters., 151 N.H.
at 78 (site plan review “does not give the planning board the authority to deny a
particular use simply because it does not feel that the proposed use is an
appropriate use of the land” (quoting Loughlin, supra § 30.09, at 437)).
We do not suggest that site plan review should be reduced to the
mechanical process of determining conformity with specific zoning and site
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plan regulations. In this case, however, the planning board’s reliance solely
upon general considerations to override the site plan’s conformity with specific
regulations and ordinances, without sufficient evidentiary support for doing so,
was unreasonable. Sustaining the board’s decision here would sanction a
denial of a property owner’s site plan application simply because board
members felt that the owner’s permitted use of its own property was
inappropriate. Such a finding would render zoning “obsolete, as it would afford
no protection to the landowner.” Id. at 81 (Nadeau, J., dissenting) (quotation
omitted); see also 15 P. Loughlin, New Hampshire Practice, Land Use Planning
and Zoning, §30.09, at 556 (2010) (“If the use is permitted by the zoning
ordinance, it cannot be barred by the site review process unless the use would
create unusual public safety, health, or welfare concerns.”).
In light of our decision, we need not address the college’s claim that the
general considerations are vague or ambiguous. For the foregoing reasons, we
reverse the trial court’s order upholding the planning board’s denial of
Dartmouth’s site plan application. As we previously found, the record
establishes that the IPF complies with Hanover’s specific zoning ordinances
and site plan regulations. Further deliberations or fact-finding are
unnecessary to determine whether the college’s application is lawful or
reasonable. Therefore, Dartmouth is entitled to relief which rewards its efforts
challenging the legality of the board’s decision and prevents retributive action
by the municipality. Britton v. Town of Chester, 134 N.H. 434, 442 (1991).
“‘To forsake [the college’s] reasonable development plans after all the time,
effort and capital invested in such a challenge [would be] grossly inequitable.’”
Id. at 443 (quoting Casey v. Zoning Hearing Board of Warwick Township, 328
A.2d 464, 469 (Pa. 1974)). Thus, we grant Dartmouth’s request for the
Builder’s Remedy provided the college complies with each of the 21 conditions
identified by Hanover’s planning board staff and considered by the planning
board.
Reversed and remanded.
LYNN, C.J., and HICKS and HANTZ MARCONI, JJ., concurred.
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