Argued: September 27, 2018
Associates Civil Law, PLLC, of Lebanon (Carolyn K. Cole on
the brief and orally), for the plaintiff.
Mitchell Municipal Group, P.A., of Laconia (Laura
Spector-Morgan on the brief and orally), for the defendant.
Associates, PLLC, of Lebanon (Howard Myers on the brief), and
Manley Burke, LPA, of Cincinnati, Ohio (Sean P. Callan and
Patrick K. Hogan on the brief), for Phi Delta Alpha
Corporation, Zeta Association of Psi Upsilon, and Trustees of
Alpha Omega Chapter of Beta Theta Pi Fraternity, as amici
plaintiff, New Hampshire Alpha of SAE Trust (SAE), appeals an
order of the Superior Court (MacLeod, J.) upholding
a decision by the Zoning Board of Adjustment (ZBA) for the
defendant, Town of Hanover (Town), that the use of SAE's
property at 38 College Street (the property) violates the
Town's zoning ordinance. We affirm in part, vacate in
part, and remand.
following facts are derived from either the trial court's
order or the certified record. SAE built the property in the
late 1920s specifically to accommodate the Dartmouth College
(College) chapter of the Sigma Alpha Epsilon fraternity.
Fraternity members have continuously occupied the property
since 1931. SAE's use of the property as a student
residence was permitted as of right from the time the Town
adopted its first zoning ordinance in 1931 until the
ordinance was amended in 1976.
the 1976 amendment, the property has been zoned in the
"'I' Institution" district. Because the
purpose of the district is to "permit or allow
institutions to use their land for uses related to the
purposes of the institutions," all property uses within
the district "must relate to the uses of the
institutions having ownership interest in land in the
district." Student residences are not permitted as of
right, but may be permitted by special exception. The
ordinance defines "Student Residence" as a
"building designed for and occupied by students and
operated in conjunction with another institutional use."
February 2016, the College revoked its official recognition
of SAE after learning that the national charter of the
Dartmouth chapter had been suspended. As a result, the
College no longer recognized the fraternity as a
college-approved housing facility or provided insurance
coverage. The College then notified the Town that it no
longer recognized the fraternity as a student organization.
In light of the College's derecognition, the zoning
administrator informed SAE that its use of the property as a
student residence was now violating the zoning ordinance
because it was not operating "in conjunction with an
institutional use," and, if continued, would subject SAE
to daily fines.
appealed to the ZBA, arguing, in part, that its use of the
property was a lawful nonconforming use because the property
was never operated in conjunction with the College. In
support of its position, SAE submitted several exhibits
including affidavits from former fraternity members. The
College did not attend the hearing and no contrary evidence
was presented to rebut SAE's claims. The ZBA found that
SAE's use of the property as a student residence was a
lawful nonconforming use because it existed prior to the 1976
amendment that added the "in conjunction with another
institutional use" requirement. However, the ZBA noted
that "it is conceivable that contrary evidence could be
adduced if a party with standing to request a rehearing (such
as the College itself) were to present such evidence."
Additionally, before the decision was distributed, a ZBA
member urged the zoning administrator to send the decision to
the College so that the College would be aware of its
"chance to ask for a rehearing."
16, 2016, the College requested a rehearing, arguing that
"there is abundant evidence" establishing that
"SAE operated 'in conjunction with' the
College" prior to the 1976 zoning amendment. SAE
objected to the College's motion on two grounds: (1) the
ZBA member that urged the zoning administrator to contact the
College was biased against SAE; and (2) the College did not
have standing to request a rehearing because it did not
participate in the initial proceedings. The ZBA did not
address SAE's objections prior to granting the rehearing.
Instead, the ZBA explained in its final decision that: (1)
any potential bias by the ZBA member was moot because he did
not participate in the rehearing; (2) it had broad discretion
to grant the College's request; and (3) the College was
an interested party.
the rehearing, the College produced evidence that it provided
fire safety services to fraternities from 1949 to 1973. The
College also produced evidence that it established an
independent governing board for fraternities in 1971 and
appointed a business manager for fraternities in 1972. In
response, SAE produced evidence that the College did not
provide health or safety services to SAE from 1972 to 1976.
Likewise, SAE presented evidence that it attempted to
maintain independence from the College during this period and
was run and managed by SAE members. After weighing the
evidence, the ZBA found that the College had "engaged in
appreciable health and oversight activities with regard to
the fraternities generally and to [SAE] in particular prior
to 1976, especially in the area of fire safety."
Ultimately, the ZBA reversed its original decision and denied
SAE's administrative appeal.
subsequently denied SAE's request for rehearing, and SAE
appealed to the superior court. Following a hearing, the
trial court affirmed the ZBA's decision. First, the trial
court ruled that, based on our recent decision in
Dartmouth Corp. of Alpha Delta v. Town of Hanover,
169 N.H. 743 (2017): (1) the issue before it was "not
whether SAE's use of the building as a fraternity house
was nonconforming with the zoning ordinance, but whether its
use of the building as a student residence was nonconforming
with the 'in conjunction with' requirement"; (2)
the ZBA's interpretation of the "in conjunction
with" requirement was not unreasonable or illegal; and
(3) the Town's past lax enforcement of the zoning
ordinance did not bar enforcement against SAE. The court went
on to find "that there was sufficient evidence for the
ZBA to reasonably conclude that SAE operated ...