New Hampshire Municipal Association
New Hampshire Municipal Association

Court Update

Applicant’s Expert Opinions Outweigh Audubon Fact Sheet

Continental Paving, Inc. et al. v. Litchfield
No. 2008-370, 4/9/2009

Vannah v. Bedford, 111 N.H. 105, 112 (1971), established the principles that (1) a Zoning Board of Adjustment (ZBA) may rely on its own knowledge resulting from familiarity with the vicinity of the application and (2) a ZBA does not have to accept the conclusions of experts. Continental Paving is the latest in a line of cases that deals with the discretion of land use boards to rely on mixtures of personal knowledge; fact sheets, professional journal articles and similar general information; and specific expert opinions on the facts of the case. (ZBAs and planning boards are subject to the same deferential standard of review by the superior court.) Earlier cases include:

Condos East Corp. v. Conway, 132 N.H. 431 (1989): Held unreasonable for board to disregard two uncontroverted expert opinions on the safety of the road in absence of any facts to support board members’ personal opinions.

Star Vector Corp. v. Windham, 146 N.H. 490 (2001): Held reasonable for board to reject applicant’s architect and vendors’ testimony on adequacy of ventilation system for proposed shooting range and to rely instead on articles from medical journals about lead contamination and reports on effectiveness of air filtration systems in shooting ranges.

Malachy Glen Associates, Inc. v. Chichester, 155 N.H. 102 (2007): Held unreasonable for board to reject plaintiff’s expert’s opinion that drainage design would protect wetland and to rely instead on board member’s contrary opinion based on experience with nearby pond, especially because board did not list flooding concern in its written decision.

Continental Paving, Inc. applied for a special exception to build a gravel access road more than 60 feet from a vernal pool. The special exception criteria in the zoning ordinance included protection of ecologically sensitive areas and wildlife habitats. Continental presented the expert opinions of a wetland scientist and a field biologist that the proposed road would not contaminate sensitive areas nor adversely affect wildlife around the vernal pool in question. The ZBA denied the special exception, relying instead on a conservation fact sheet from New Hampshire Audubon and rules promulgated by the Maine Department of Environmental Protection that contained general information. The conservation fact sheet suggested a buffer of at least 100 feet around a vernal pool to protect water quality and a 300-yard radius of natural habitat for vernal pool breeders. Continental appealed to the superior court, which vacated the ZBA’s decision and remanded to the ZBA with instructions to grant the special exception. “[T]he trial court found the lay opinions of certain ZBA members, based upon general information not specifically addressed to the subject site, to be insufficient to counter the uncontroverted expert opinions presented by Continental.”

On appeal to the Supreme Court, the Town claimed that the trial court erred in finding it unreasonable for the ZBA to give weight to general information about vernal pools. Citing the principle that ZBA members may base their conclusion upon their own knowledge, experience and observations, the Town argued the ZBA members’ knowledge included information in the record that they could use to evaluate the opinions of Continental’s experts. The Court disagreed: “We reject … the Town’s contention that information contained in exhibits before the ZBA is transformed into ‘personal knowledge’ through individual ZBA members using such information to ‘educate themselves.’ Rather, the exhibits themselves were simply evidence before the ZBA.”

The Court likened the case to the Condos East case but did not refer to the Star Vector case. The Court noted that “[t]he 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 experts and determined by them to not be negatively affected by the proposed road.” There was no evidence that the ZBA questioned the credibility or methodology of Continental’s experts. Thus, the Court held that “trial court could reasonably have found, by the balance of probabilities, that the ZBA’s decision was unreasonable.”

Land use boards should be aware that they do not necessarily enjoy wide discretion to rely on general standards and values expressed in publications of reputable organizations, rather than the specific opinions of experts retained by parties to address the facts of the application. Specific opinions of experts can be reliably countered only by the specific opinions of equally qualified experts.

Please be advised that the foregoing case summary is based upon a Supreme Court slip opinion. Slip opinions are subject to change following motions for rehearing and/or motions for reconsideration. The Court may also modify the opinion without motion. The final version of the Court’s opinion is that which appears in the New Hampshire Reports.

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