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College to Appeal Zoning Decision

The College has taken a principled stand: it will appeal to the New Hampshire Supreme Court the Hanover Planning Board’s denial — subsequently supported by a decision by Grafton County Judge Peter Bornstein — of the College’s application for planning permission to build a large new fieldhouse next to the Boss tennis center:


The Office of Communications issued a short statement last week about the appeal:

The College believes that the New Hampshire Superior Court decision of Sept. 21 significantly and mistakenly expands Planning Board discretion in the review of building projects. The potential impact of the decision extends well beyond Dartmouth and is relevant to others in the state committed to responsible development based upon clear and definite standards of design and review. We are concerned about appropriately defining the scope of a planning board’s power to interpret and apply zoning and planning regulations. It is for this reason that we intend to appeal.

I commented on the matter on January 9 this year:

The issue here is one of property rights. The landowners who own homes next to the College’s institutional district have no right to assume that the pretty “sunken field” across the street from them will remain green and untouched for eternity. Dartmouth had already built Thompson Arena, the Boss Tennis Center and the Scully-Fahey stadium in that area, and the Town’s zoning ordinance does not stand in the way of an additional facility. While Hanover’s overall planning ordinance does take into account the Town’s aesthetics (maximum building heights; no commercial buildings in residential neighborhoods, etc.), the Planning Board itself does not sit in arbitrary and unlimited judgement on the look and impact of individual new buildings. It is duty bound to uphold the law. That the Board now arrogates to itself such a subjective and unfettered power should put fear in the hearts of citizens.

Put a different way, when an individual owner or an institution like the College wants to build on a property, it deserves to be able to understand the legal limitations on development by consulting the relevants statutes, building codes and zoning laws well before it spends time and large sums of money on planning and design. To do all of this work and then face a citizen’s planning board that judges if a structure is “harmonious and aesthetically pleasing” is a process that is both inefficient and open to endless abuse.

On the other side of the equation, the people who purchase land next to the institutional district should accept that they do so in the full knowledge of the College’s legal rights to build as enshrined in the law. They probably purchased their homes at a discount because of this specific location.

For the neighbors now to plead that they find the fieldhouse building too large — when it fully complies with zoning regulations — is akin to the paradigmatic first-year-of-law-school case wherein people build a house next to a hog farm and then sue over the smell. They knew what they were getting into, and so did the College’s neighbors.

This dispute is decidedly not a town-gown issue. It involves only the respect of a property owner’s right to rely on the clear terms of the written law, and not risk having a project upended by a citizens’ board that caves into pressure from noisy, NIMBY neighbors.

Addendum: If the Supreme Court upholds the Hanover Planning Board’s decision, the consequences will be certain: businesses will shy away from Hanover out of a concern that late in the planning/permitting process, the untrained and unrestrained citizens on the Planning Board can derail a project on little more than a whim. De gustibus non est disputandum is certainly true when a citizens’ board can wield unrestrained power based on no more than their personal sense of aesthetics.


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