Appeal of James G. Boyle, as Trustee of the 150 Greenleaf Avenue Realty Trust
169 N.H. 371
N.H.2016Background
- Petitioner James G. Boyle, trustee, owns a 13-acre auto-dealership parcel in Portsmouth with existing access to US Route 1 Bypass via Greenleaf Avenue and applied to DOT in 2010 for a second driveway providing direct access to the Bypass.
- DOT District Engineer denied the permit citing added conflict points on a heavily traveled highway and that existing Greenleaf access (signalized, lower speed/volume) was a safer alternative.
- Hearings examiner (on administrative appeal) upheld the denial, emphasizing the Driveway Policy’s purpose to maximize safety and minimize conflict points; noted different outcome might occur if petitioner were landlocked.
- The Transportation Appeals Board (TAB) concluded the proposed driveway would adequately protect public safety (N.H. Driveway Policy § 7(a)) but nonetheless affirmed the denial based on the hearings examiner’s finding that the driveway would cause an "unreasonable hazard" (§ 7(e)).
- Petitioner appealed to the Supreme Court of New Hampshire arguing the two findings are incompatible: something cannot both "adequately protect safety" and be an "unreasonable hazard." DOT defended reading § 7(e) as broader than § 7(a).
- The Supreme Court held the terms are mutually exclusive under ordinary meaning and, because DOT did not appeal the TAB’s safety finding, reversed the TAB and ordered issuance of the permit under § 7(a).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a proposed driveway can "adequately protect" safety (§ 7(a)) and simultaneously create an "unreasonable hazard" (§ 7(e)) | They are mutually exclusive; if safety can be adequately protected, permit must be issued | § 7(e) addresses broader concerns and is not rendered superfluous; denial may still be justified | Held: Mutually exclusive; cannot both be true. If § 7(a) satisfied and unappealed, § 7(e) finding cannot stand |
| Whether TAB could affirm denial despite finding adequate safety | TAB erred by upholding an inconsistent denial | DOT argued TAB’s application of § 7(e) was permissible and entitled to deference | Held: TAB erred; inconsistent findings are capricious and insufficient to support denial |
| Proper interpretation of "safety" vs "unreasonable hazard" in Driveway Policy | Ordinary meaning supports incompatibility (safe = free from danger; unreasonable hazard = excessively dangerous) | DOT urged a broader, policy-driven reading to allow discretionary denial | Held: Court adopts ordinary dictionary meaning; "unreasonable hazard" = peril excessively dangerous; conflict resolves in favor of § 7(a) where unchallenged |
| Remedy when two mandatory provisions conflict and one finding unappealed | Require issuance under § 7(a) because “shall be issued” is mandatory and DOT did not appeal safety finding | DOT could revise Policy if it disagrees | Held: Reverse TAB; the § 7(e) denial cannot stand when § 7(a) finding is unchallenged; DOT free to amend Policy later |
Key Cases Cited
- Appeal of Hillsborough County Nursing Home, 166 N.H. 731 (2014) (standard of review: legal questions de novo)
- Appeal of N.H. Dep’t of Transportation, 152 N.H. 565 (2005) (DOT authority to regulate access and adopt driveway rules)
- Appeal of Lemire-Courville Associates, 127 N.H. 21 (1985) (contradictory findings on material issues are capricious)
- In the Matter of Bazemore & Jack, 153 N.H. 351 (2006) ("shall" denotes mandatory requirement)