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Dartmouth Loses Appeal Over Ruling Against Indoor Practice Facility 

  • An artist's rendering of the front of Dartmouth College's proposed athletic facility, as seen from a loop road near South Park Street in Hanover, N.H. (Courtesy Dartmouth College)



Valley News Staff Writer
Thursday, September 21, 2017

Hanover — A Grafton Superior Court judge has upheld a Hanover Planning Board decision to deny site plan approval for a 70,000-square-foot indoor practice facility proposed by Dartmouth College.

Lawyers for Dartmouth had argued that the Planning Board’s denial last December was predicated on a standard that was too subjective to enforce.

In his ruling, Judge Peter Bornstein said that the college had “failed to persuade the court that the (Planning Board) impermissibly based its decision on personal feelings, as opposed to objective and discernable standards.”

Dartmouth administrators said the estimated $17.5 million facility was needed to give athletes a downtown practice space in winter.

The Planning Board in December ruled that the proposal was not “harmonious and aesthetically pleasing” as site plan regulations require.

The college’s attorneys fought back during a Superior Court hearing last month, saying “harmonious and aesthetically pleasing” was an “entirely subjective standard” that should be struck down.

Dartmouth also asked Bornstein to apply the “builder’s remedy,” a court order that would grant the school a site plan permit without further review by the Planning Board.

A lawyer for the town of Hanover declined to defend the Planning Board’s decision during the hearing. Instead, the lawyer, Laura Spector-Morgan, turned the job over to an attorney hired by abutters to the proposal, who she said was better positioned to make the case.

Residents in the Tyler Road neighborhood next to the proposed building site fought the facility throughout the site plan process, citing its size and proximity to their homes. They later became parties to the court case and retained their own lawyer to support the Planning Board decision.

Those opponents included Planning Board Vice Chairwoman Kelly Dent, a Chase Road resident who hailed Bornstein’s decision and said neighbors were prepared to fight on if Dartmouth were to appeal to a higher court.

“We are prepared to go further to defend our homes, property values and neighborhood character,” Dent said in an email Thursday, adding that she was commenting as a neighbor, not as a Planning Board member.

Dent recused herself from the Planning Board’s hearings on the practice facility and from its final decision.

In his decision, dated Sept. 8, Bornstein cited several past New Hampshire cases resolved in town planning boards’ favor as basis to reject Dartmouth’s argument that Hanover’s site plan regulations were too vague and subjective.

The judge also hinted that Dartmouth officials could have judged for themselves prior to submitting their proposal whether it fit in with the surrounding residential neighborhood.

“The petitioner could have physically observed the character of this neighborhood to reasonably ascertain how the proposed project may ‘impact’ the ‘abutters, neighborhood and others’ or how it would relate to ‘harmonious and aesthetically pleasing development of the town and environs,’ ” Bornstein wrote, putting in quotes specific words and phrases from town site plan regulations.

Dartmouth officials on Thursday said they were considering what steps to take next, including whether to appeal again.

“We are reviewing the decision and considering all options,” college spokeswoman Diana Lawrence said in an email.

The facility would be built on a college-owned field on the east side of a parcel off South Park Street that contains other large Dartmouth athletic facilities, including Thompson Arena and the college’s indoor tennis center.

Rob Wolfe can be reached at rwolfe@vnews.com or at 603-727-3242.