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Appeal of Boyle

Supreme Court of New Hampshire

September 20, 2016

APPEAL OF JAMES G. BOYLE, AS TRUSTEE OF THE 150 GREENLEAF AVENUE REALTY TRUST (New Hampshire Transportation Appeals Board)

          Argued: June 14, 2016

         Transportation Appeals Board

          Law Offices of John Kuzinevich, of Duxbury, Massachusetts (John Kuzinevich on the brief and orally), for the petitioner.

          Joseph A. Foster, attorney general (John J. Conforti, assistant attorney general, on the brief and orally), for the New Hampshire Department of Transportation.

          BASSETT, J.

         The petitioner, James G. Boyle, as trustee of the 150 Greenleaf Avenue Realty Trust, appeals a decision of the New Hampshire Transportation Appeals Board (TAB) affirming the denial of his application for a permit to construct a driveway onto a state highway. The TAB based its decision upon sections 7(a) and 7(e) of the New Hampshire Department of Transportation's (DOT) "Policy for the Permitting of Driveways and Other Accesses to the State Highway System." See Policy for the Permitting of Driveways and Other Accesses to the State Highway System (N.H. DOT declaratory ruling no. 2000-01; issued March 10, 2000) (hereinafter referred to and cited as the "Driveway Policy" or "N.H. Driveway Policy"). Section 7(a) of the Driveway Policy states that a "driveway construction permit shall be issued if the application and supporting information demonstrates that the safety of the traveling public can be adequately protected." N.H. Driveway Policy § 7(a) (emphases added). By contrast, section 7(e) of the Driveway Policy provides that a "driveway permit shall be denied if the proposed driveway will cause an unreasonable hazard to the traveling public." Id. § 7(e) (emphases added). Here, although the TAB concluded that the petitioner's proposed driveway would adequately protect the safety of the traveling public, because it also determined that there was sufficient support for the hearings examiner's conclusion that the proposed driveway would cause an unreasonable hazard to the traveling public, it upheld the hearings examiner's denial of the petitioner's permit application.

         On appeal, the petitioner challenges the finding of an unreasonable hazard, arguing that it is impossible for a driveway to adequately protect the safety of the traveling public and simultaneously cause an unreasonable hazard to the traveling public. Thus, the petitioner asserts that the TAB erred when, after concluding that the proposed driveway would adequately protect the safety of the traveling public - a determination that has not been appealed - it affirmed the denial of his permit application. We agree with the petitioner, and, therefore, reverse.

         The pertinent facts follow. The petitioner owns a 13-acre parcel of land, on which he operates an automobile dealership. The parcel is located in Portsmouth at the intersection of the U.S. Route 1 Bypass and Greenleaf Avenue. It has over 800 feet of frontage on the Bypass. Currently, the parcel has access to the Bypass only by way of Greenleaf Avenue. Thus, in 2010, as part of a plan to add a second automobile dealership to the parcel, the petitioner filed an application with the DOT for a permit to construct a driveway with direct access to the Bypass. The petitioner wanted to use both his existing Bypass access and the proposed driveway as entrances and exits for the current and proposed dealerships.

         In 2011, the District Engineer, Douglas DePorter, denied the petitioner's permit application. DePorter explained that the "reason for the denial included the fact that the [petitioner] has historically had access to [the] Route 1 ByPass via Greenleaf Avenue, " and that the "requested direct access to [the] U.S. Route 1 Bypass would introduce a new conflict point along a highly traveled roadway." According to DePorter, the access by way of Greenleaf Avenue is "a safer alternative" than the proposed driveway because Greenleaf Avenue "consists of lower traffic volumes and lower speeds, with the added benefit of a traffic signal to access [the] Route 1 By-Pass."

         The petitioner appealed to the DOT commissioner. Pursuant to New Hampshire Administrative Rule, Tra 202.01(a), the commissioner appointed a hearings examiner to adjudicate the appeal. The hearings examiner upheld the denial of the petitioner's permit application, concluding that the "denial is in keeping with the purpose" of the Driveway Policy: to "maximize safety and . . . minimize conflict points." She also observed that "there would likely be a different discussion" had the petitioner been "landlocked" with no access to the Bypass.

         The petitioner appealed to the TAB. In its decision, the TAB referenced sections 7(a) and 7(e) of the Driveway Policy, noting that, although DePorter had testified before the hearings examiner that "the proposed driveway provided adequate safety to the traveling public, " he also testified that "the proposed driveway posed an unreasonable hazard in light of the existing access the [petitioner's] property has on Greenleaf Avenue." See N.H. Driveway Policy § 7(a), (e). Observing that it "is hard to envision . . . that the traveling public can simultaneously be adequately protected and yet somehow be subject to unreasonable hazard by virtue of this particular driveway permit, " the TAB concluded that the petitioner "need not show that the proposed driveway provide[s] maximum safety, " but rather only that the "safety of the traveling public can be adequately protected." The TAB determined that the petitioner met his "burden of establishing that the traveling public can be adequately protected." It then remanded the matter for the hearings examiner to determine whether, "taking into account the relative impact on the traveling public of the existing and proposed access, " the petitioner's permit application for the proposed driveway should be denied because the proposed driveway would cause an "unreasonable hazard."

         Upon remand, the hearings examiner determined that the proposed driveway would "create[] an unreasonable hazard for the traveling public." The hearings examiner explained that the proposed driveway would "add[] additional conflict points to an already busy State highway, fail[] to remove or improve existing conflict points, fail[] to remove or improve the existing driveway, and in general, decreas[e] safety to the overall highway system."

         The petitioner again appealed to the TAB. The TAB observed that it "is seemingly nonsensical that simultaneously with" finding that the proposed driveway would adequately protect the safety of the traveling public, the DOT "could also find that the proposed driveway somehow constitutes an unreasonable hazard to the traveling public." The TAB also stated:

The Board is sympathetic to the predicament faced by [the petitioner]. [The petitioner] seeks to expand a business and to do so in a way that adds a driveway with direct access onto a highway seemingly better suited to handle traffic than the current Greenleaf Avenue. On the surface the design of the driveway appears to flow with existing traffic patterns and the additional vehicles entering onto the state highway do not appear to create any hazard beyond that which is generally a part of a growing population. In all respects [the petitioner's] request for the driveway seems reasonable.

         Notwithstanding these comments, the TAB upheld the hearings examiner's conclusion that the proposed driveway would cause an unreasonable hazard to the traveling public. The TAB explained that, given the hearings examiner's findings regarding an unreasonable hazard, it could not conclude that the denial of the permit ...


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