Continental Paving, Inc. v. Town of LitchfieldContinental Paving, Inc. v. Town of Litchfield
Thе appellant, Town of Litchfield (Town), appeals an order of the Superior Court (Groff, J.), adopting an order of the Judicial Referee (Perkins, J.), vacating a decision of the Town’s zoning board of adjustment (ZBA) that had denied a special exception to the appellees, Continental Paving, Inc. (Continental) and New England Power Company (NEPC). We affirm.
The trial court found, or the record supports, the following facts. Continental sought a special exception to build a gravel road over land owned by NEPC in order to access a parcel in Londonderry owned by the Londonderry Fish and Game Club. The road would be located in the Wetlands Conservation District (WCD) as delineated in section 1204.00 of the Town of Litchfield Zoning Ordinance (LZO). The proposed road would cross a wetland and would come within sixty-seven feet of a vernal pool.
After a hearing, the ZBA denied the special exception. The ZBA’s minutes indicate concern by some board members about the road’s proximity to the vernal pool. The ZBA held a rehearing and received a number of additional exhibits including a “Conservation Fact Sheet” promulgated by the New Hampshire Audubon Society. The ZBA again denied the special exception, referencing, among other things, a rеcom mendation by the New Hampshire Audubon Society that a 100-foot buffer of natural vegetation be maintained around vernal pools. The ZBA denied a second rehearing and the appellees appealed to the superior court. See RSA 677:4 (2008).
The trial court vacated the ZBA’s decision and granted the request for special exception. Upon reconsideration, the court vacated its grant of a special exception but remanded the matter to the ZBA with instructions to grant the special exception.
On appeal, the Town argues that the trial court erred: (1) in concluding that a determination of the relevant criteria for a special exception required specialized scientific knowledge; (2) in concluding that the ZBA was bound to accept thе conclusions
Our standard of review is well-settled:
We will uphold the trial court’s decision unless the evidence does not support it or it is legally erroneous. For its part, the trial court must treat all factual findings of the ZBA as prima facie lawful and reasonable. RSA 677:6 [(2008)]. It may set aside a ZBA decision if it finds by the balance of probabilities, based on the evidence before it, that the ZBA’s decision was unreasonable.
Chester Rod & Gun Club v. Town of Chester,
We first review the relevant provisions of the LZO and the ZBA’s findings. Under section 1208.00(a), roads are permitted in the WCD by special exception. Litchfield, N.H., Zoning Ordinance § 1208.00(a). Applications for a special exception must be referred for review and comment to the planning board, the conservation commission and the health officer, and the proposed uses must meet the criteriа listed in section 1208.01, 1 see id. § 1208.00, which provides, inter alia:
Criteria for Granting a Special Exception. Special exceptions for uses within the Wetlands Conservation District may be granted provided that the following conditions are met. The burden of proof shall be upon the applicant who shall furnish such engineering and hydrological data as is reasonably necessary. Economic advantage alone is not reason for granting a special exception.
b. It can bе shown that the proposed use is not in conflict with any and all of the purposes and intentions listed in Section 1200.01 of this Ordinance.
Id. § 1208.01. Section 1200.01, in turn, provides in relevant part:
Purpose and Intent. The purpose of this ordinance is to protect the public health, safety and general welfare by controlling and guiding the use of land areas which have been found to be subjected to high water tables for extended periods оf time. It is intended that this ordinance shall:
c. Protect unique, ecologically sensitive and unusual natural areas.
d. Protect wildlife habitats, wildlife corridors and maintain ecological balances.
e. Protect potential water supplies and existing aquifers (water-bearing stratum) and aquifer recharge areas.
Id. § 1200.01.
Finally, section 1207.03 of the LZO requires buffers in the WCD of “at least a fifty (50) foot wide area of undisturbed nаturally vegetated upland habitat along
At the first hearing on the respondent’s application, a board member stated that she “ha[d] an issue” with the asserted lack of conflict with purposes c and d of section 1200.01. The notice of decision cited lack of compliance with only section 1200.01 c, stating:
The board sees a problem on this one since the proposal is to build a private drive which has direct impact on the 200 ft Vernal Pool setback requirement described as required by the LZO. The ZBA does NOT agree that the applicant has satisfied this specific criterion. The concern here is that the proрosed roadway would only be 60 feet from the vernal pool which is already negatively impacted by development on other sides.
On rehearing, a ZBA member expressed concern over subsections 1200.01 c, d and e, stating, as recorded in the minutes, that “[s]he believes a vernal pool is unique in and of itself. A road within 60 feet of the pool is not protecting it.” The notice of decision denying the spеcial exception on rehearing made the following findings:
1200.01 c&d&e — Vernal pool is unique in and of itself. The Purpose of the ordinance is to conserve the pool. Having a road within 60 ft of the pool is NOT protecting the vernal pool or the travel pathways leading to it. The NH Audubon Society (from the Conservation Fact Sheet — part of Exhibit I) states that having a buffer of 100 ft of natural vegetation arоund the pool for as great a distance as possible back from the edge of the pool’s high water mark will help to maintain water quality but will do little to protect amphibians living around the pool. Vernal pool breeders require 300 yards of natural habitat around the pool to survive.
1200.01 c&d&e See Exhibit H, page 7 subsection B ref Spotted Salamanders — the entire section describes the unique and еcologically sensitive nature of vernal pools.
This section speaks of salamanders moving an average of 409 ft from the edge of the vernal pools in the course of several weeks to months following [breeding]. The road 60 feet from the pool will obstruct this.
Wildlife habitat (Blanding’s turtle, dragon fly, salamanders) are endangered and reside in this area.
The Town first challenges the trial court’s finding that the determination before the ZBA required specialized or scientific knowledge. Specifically, the trial court stated that subsections c, d and e “all require specialized scientific knowledge to make a determination as to whether those requirements have been satisfied.” It also stated that “[t]he reasons used by the majority [of the ZBA] to deny the application all require findings based on specialized or scientific knowledge. At no time does any member of the [ZBA] identify him or herself as having any specialized or scientific knowledge concerning this matter.”
The Town argues that the trial court erred in finding that the determination before the ZBA required specialized or scientific knowledge because such a finding would divest the ZBA of its authority to determine whether a special exception would conflict with the general purpose and intent of a zoning ordinance.
See
RSA 674:33, IV (2008). Specifically, the Town
contends that the trial court’s analysis would compel the ZBA to deny a special exception whenever an applicant fails to retain an expert with specialized scientific knowledge and, conversely, to grant a
The appellees counter that the Town “incorrectly characterizes” the trial court’s order and instead contend that the court, consistent with the statutory standard, simply “reviewed whether, based upon the evidence presented, the ZBA’s decision was unreasonable.” Because we agree with the appellees that the trial court’s ruling is sustainable under the statutory standard of review, we need not address the merits, in the abstract, of the court’s purportedly broad characterization of the evidence required by subsections 1200.01 c, d and e as “specialized scientific knowledge.”
The trial court assessed the evidence that was before the ZBA in this case and determined that the ZBA’s denial of a special exception was unreasonable. Specifically, the court noted that Continental “presented evidence from two scientific experts . .. [explaining how, in their opinions, its] proposal did satisfy Sections c, d and e.” On the other hand, the only evidence opposing the application, “other than two abutter complaints, is the 1998 Audubon fact sheet that deals with vernal pools in general.” The court noted that the Audubоn publication was “not addressed to this application and it doesn’t speak to the applicants’ evidence that the proposal complies with and satisfies Sections c,[ ]d and e of LZO 1200.01.” The court therefore concluded that “[t]here is no legitimate support in the record for the denial” of a special exception.
This case presents a situation similar to that in
Condos East Corp. v. Town of Conway,
The Town argues, however, that the ZBA’s denial of the special exceрtion implies that it did not accept Continental’s experts’ conclusions and that “the record contains sufficient evidence to support a finding that [those] experts lacked credibility.” The Town correctly notes that the ZBA does “not have to accept the conclusions of the experts.”
Vannah v. Bedford,
The Town posits a number of grounds upon which the “ZBA
could have
reasonably questioned” the findings and credibility of Continental’s experts, such as the time of year the experts performed their evaluations, and the circumstances under which they performed their assessments or prepared their reports. (Emphasis added.) These asserted grounds, however, are purely speculative, as the record contains
The Town next argues that the trial court erred in finding it unreasonable for the ZBA to give weight to general information about vernal pools. The Town asserts that “[t]he individual members of the ZBA may properly educate themselves, based on information contained within the record, and rely on their personal knowledge to evaluate the opinions of Continental’s experts.”
‘We have previously held that in arriving at a decision, the members of the ZBA can consider their own knowledgе concerning such factors as traffic conditions, surrounding uses, etc., resulting from their familiarity with the area involved.”
Nestor v. Town of Meredith,
Continental presented the opinions of two experts, Robert Procop, a New Hampshire certified wetland scientist with Wetland Consulting Services, and Scott D. Smyers, a field biologist with OxBow Associates, Inc. Procop testified that the proposed road would have no impact on any sensitive areas and little effect on wildlife. He further opined:
While some upland and wetland areas will be impacted by the proposed driveway, neither of these areas are considered habitat for the species that utilize the vernal pool. The pool itself will not be impacted by the project, and a sufficient corridor will remain to allow amphibian movement between the pool and the remaining upland habitat.
Procop tailored his analysis to the site at issue and explained his reasoning. For instance, he stated that “[t]he current project will not impact the pool itself since all work will occur at least 60 ft upslope of the
Similarly, Smyers opined that “it is unlikely that the installation of a gravel driveway across the shallowest portion of the wetland will have any measurable adverse impact to the amphibian habitat provided by [the] entire wetland system.” He reasoned:
The intended use of the driveway is to access a sportsman’s club, thus is unlikely to generate any significant traffic at any time, especially during rainy nights, which is when many vernal pool amphibians are most likely to travel over land and are at most risk to mortality from vehicle traffic.
On the other hand, the informatiоn upon which the ZBA based its findings of fact, namely, the Audubon Society conservation fact sheet and rules promulgated by the Maine Department of Environmental Protection, contained only general information. For instance, the conservation fact sheet suggests as a conservation measure:
Leave a buffer of natural vegetation around the pool for as great a distancе as possible back from the edge of the pool’s high-water mark. A buffer of at least 100 feet will help maintain water quality, but will do little to protect amphibians living around the pool. Vernal pool breeders require at least 300 yards of natural habitat around their pools in order to survive.
We find no error in the trial court’s conclusion that this evidence was “not addressed to this application” and did nоt “speak to the applicants’ evidence that the proposal complies with and satisfies Sections c,[ ]d and e of LZO 1200.01.” The same factors discussed generally in the conservation fact sheet and used by the ZBA to deny the special exception, namely, water quality and the safety of amphibians that use vernal pools to breed, were specifically addressed by Continental’s еxperts and determined by them to not be negatively affected by the proposed road. Based upon the evidence, the trial court could reasonably have found, by the balance of probabilities, that the ZBA’s decision was unreasonable.
See Chester Rod and Gun Club,
The Town also contends that by “decid[ing] factual matters in the first instance,”
id.
at 584, the trial court impermissibly substituted its own judgment for that of the ZBA.
See Thomas v. Town of Hooksett,
Finally, the Town argues:
Given that the express purpose and intent of the WCD is to “protect” sensitive wetlands such as the vernal pool in this case, which has already been negatively impacted [by prior development in the area], the ZBA could have reasonably concluded that а road within 60 feet of the vernal pool would be contrary to the purpose and intent [of] the WCD, and lawfully and reasonably denied the special exception.
Having previously determined that the trial court correctly applied the statutory standard of review, on the evidence before the ZBA, we necessarily reject this contention.
Affirmed.
Notes
Although section 1208.00 actually provides that the proposed uses must “meet the criteria listed in Section 1200.01,” the numerical reference appears to be a misprint. Section 1200.01 states the purpose and intent of the ordinance. Section 1208.01 is entitled “Criteria for Granting a Special Exception” and one of the criteria is itself that “[i]t can be shown that the proposed use is not in conflict with any and all of the purposes and intentions listed in Section 1200.01 of this Ordinance.”