N.H. Supreme Court Overturns Practice Facility Site Ruling

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Copyright 2018 Valley News Nov 7, 2018

Valley News; White River Junction, Vt.


Hanover — The New Hampshire Supreme Court on Tuesday ruled that the Hanover Planning Board improperly denied site plan approval for a 70,000-square-foot indoor practice facility proposed by Dartmouth College, all but clearing the way for construction.

The opinion reversed a 2017 Superior Court ruling that upheld the Planning Board's rejection of the project in December 2016. The college hopes to build the facility on land it owns in a field near other athletic facilities off South Park Street.

The trial court that upheld the Planning Board ruling had determined that the board had appropriately denied the application, in part out of concern for how much sunlight would be blocked from abutting homes.

In reversing that, the Supreme Court found that the Planning Board's deliberations indicated that the rejection actually was based on other, more subjective considerations.

"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," the Supreme Court wrote in its 4-0 ruling issued on Tuesday.

The justices noted that Planning Board members must not rely on personal opinion for making decisions.

"(T)he planning board essentially decided that the (indoor practice facility) 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 (facility) constitutes a permitted use within a 'special district' that not only contemplates large warehouse and recreational facilities ... but currently includes two indoor sports facilities of similar sizes," the court wrote.

The court said Dartmouth can build the estimated $17.5 million structure without further review from local boards provided the college complies with 21 conditions previously identified by Hanover's planning staff.

A court spokeswoman said the town has 10 days to file a motion for reconsideration.

Dartmouth College still has at least one step it must take before breaking ground, said Robert Houseman, Hanover's director of planning, zoning and codes.

"Based on my quick read of the decision, Dartmouth College will need to file a building permit and comply with the original draft conditions of approval in order to proceed with the project," he said via email.

Dartmouth College spokeswoman Diana Lawrence said the college is pleased with the ruling.

"We look forward to working with the town of Hanover and the Planning Board as we advance construction planning," she said via email.

The indoor practice facility has been described by officials in the athletics department as a key facility that will give Dartmouth teams the ability to practice in bad weather and provide flexibility to coaches for scheduling practices. It will offer 56,000 square feet of artificial turf practice space and allow Leverone Field House to be more available for use by club teams and the college's track squad.

Dartmouth College athletic director Harry Sheehy was delighted by the news.

"This is a great day for our dedicated student-athletes and coaches who work tirelessly to represent the college and the Upper Valley community with pride," Sheehy said in an emailed statement.

The practice facility will serve football, lacrosse, softball, baseball and soccer teams.

Not everyone was happy with the Supreme Court's decision. The proposal drew steadfast opposition from some residents of the Tyler Road neighborhood, who became parties to the court case and retained their own lawyer.

Several people spoke out at public meetings on the topic, including Gert Assmus, a retired professor who lives on Conant Road, which intersects with Tyler Road.

Reached on Tuesday, Assmus said he was not surprised by the decision.

"I realize the land belongs to the college," Assmus said. "I wish they were a little more sensitive to the residents of the town."

Assmus, who has lived in Hanover for decades, said he has watched once-desirable properties on Park Street suffer from large building developments. He fears his neighborhood will be next.

"Once these go in, people don't want to live right across (from them)," he said, noting that his biggest problem with the facility is its size.

In its ruling, the court noted that the abutting neighborhood had benefited over the years from the undeveloped portion of the college's property and had opposed any development there as a way to maintain a buffer of open space between the college's athletic complex and the residential area.

"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," the court ruled.

Planning Board Chairwoman Judith Esmay, who cast the lone vote in favor of the project in December 2016, said the ruling speaks for itself.

At the time of the vote, Esmay said she "found nothing in our zoning ordinances or regulation that would permit me not to approve it."

Dartmouth submitted its application to construct the facility in March 2016. The building site is a college-owned field on the east side of a parcel off South Park Street that contains other athletic facilities, including Thompson Arena and an indoor tennis center.

After some neighbors expressed concern, the college made a number of revisions, including lighting changes and an adjustment to the roof line to lower the building's height profile.

When it rejected the college's application, the Planning Board cited three reasons: the proposal doesn't conform with the town's Master Plan; it would negatively affect abutters; and the indoor practice facility would not be a "harmonious and aesthetically pleasing development."

In appealing that ruling, the college argued that the standards used by the Planning Board were "vague, ambiguous and not proper standards by which to review a site plan application."

After Superior Court Judge Peter Bornstein upheld the Planning Board's decision in September 2017, Dartmouth appealed to the Supreme Court.

Messages left for the intervenors' attorney, David Rayment of Concord-based Cleveland, Waters and Bass, weren't returned.

Jordan Cuddemi can be reached at [email protected]


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November 7, 2018


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