Dartmouth College Appeals Ruling Against Practice Facility

Valley News Staff Writer
Thursday, August 10, 2017

North Haverhill — A ruling by the Hanover Planning Board denying a permit for a proposed 70,000-square-foot practice facility east of downtown was based on a standard that was too subjective to enforce, a lawyer representing Dartmouth College argued in Grafton County Superior Court on Wednesday.

Robert Carey, a lawyer for the college, said the $17.5 million building, which Dartmouth officials said was needed for its athletes to practice in the winter, had met all relevant zoning codes, as well as all specific site plan regulations.

That word — specific — was the key to Carey’s argument.

Reading from transcripts of the Dec. 13 meeting where the Planning Board denied the permit, Carey noted several instances where board members acknowledged the project’s compliance with zoning and site plan regulations that articulated a specific, objective standard.

Four of the five board members proceeded to vote against granting the proposed project a permit based on other town site plan regulations that call, among other things, for projects to be “harmonious and aesthetically pleasing” — a standard that Carey said was too subjective and should be struck down.

“How do you judge them?” Carey asked of those town rules. “How do you measure them? What does it mean? It is an entirely subjective standard.”

For more than a year, abutting residents, especially those in the Tyler Road neighborhood, have opposed the project at each step of the process, citing its size, appearance and proximity to their homes.

The town of Hanover’s attorney, Laura Spector-Morgan, left the defense of the Planning Board’s decision to a lawyer for the neighbors, who are intervenors in the case.

“Any reason the town isn’t weighing in on this?” Judge Peter Bornstein asked.

Spector-Morgan replied that Hanover officials felt the residents were best suited to the task.

“Because they were the ones who truly objected to the approval of the athletic practice facility, we would defer to them,” she said.

David Rayment, an attorney from the Concord-based firm Cleveland, Waters and Bass who is representing the neighborhood, said the Planning Board thoroughly examined the project and its potential effect on residents.

The board last year held 16 meetings — an “extraordinary” number, he said — and visited the site multiple times.

“We’ve heard many times from opposing counsel that these are vague standards and you can’t know what they mean,” he said. “Well, the way you know what they mean is you go to the hearings.”

Rayment also cited cases where courts upheld other subjective regulations that he said were “no less squishy.”

Earlier in the hearing, Carey — from the Concord-based Orr & Reno law firm, which also has the Valley News among its clients — asked the judge to apply what he called the “builder’s remedy,” a court order that would grant Dartmouth a site plan permit without further review by the Hanover Planning Board.

Spector-Morgan, the town’s attorney, said Hanover officials would not object to the remedy if the judge concluded that the project should be granted a permit, provided Dartmouth were still required to comply with project suggestions from town staff.

Rayment said the neighbors would object.

No decision came at the end of the hearing, which adjourned after about an hour with Bornstein asking attorneys for additional information to help reach a ruling.

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