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New Hampshire Alpha of Sae Trust v. Town of Hanover

Supreme Court of New Hampshire, Grafton

March 26, 2019

NEW HAMPSHIRE ALPHA OF SAE TRUST
v.
TOWN OF HANOVER

          Argued: September 27, 2018

          Cole 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.

          Myers 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 curiae.

          LYNN, C.J.

         The 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.

         I

         The 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.

         Since 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."

         In 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.

         SAE 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."

         On May 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.

         During 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.

         The ZBA 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 ...


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