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Trustees of Dartmouth College v. Town of Hanover

Supreme Court of New Hampshire, Grafton

November 6, 2018


          Argued: June 27, 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.

         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 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 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 ...

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