My Way Realty appealed a Superior Court decision upholding the denial of a special exception by the Manchester ZBA for the installation of a drive-through facility on its property. The Superior Court found that the property owner failed to satisfy the City’s special exception requirement that the drive-through facility would not create undue traffic congestion.
The plaintiff argued on appeal that the ZBA improperly rejected its expert’s uncontradicted opinion that the proposed drive-through facility would not create undue traffic congestion. However, the Supreme Court concluded that the trial record demonstrated the ZBA did not ignore that evidence but instead raised legitimate concerns about the traffic expert’s use of a traffic data manual, and statements regarding the effect of Covid on traffic. Thus, the ZBA was entitled to reject the methodology and conclusions of the expert’s traffic assessment.
The plaintiff also argued that the ZBA violated Part I, Article 1 of the NH Constitution by refusing to reopen the public hearing process to permit the submission of a supplemental traffic report. The Plaintiff’s attorney stated at a ZBA hearing that the plaintiff had presented all evidence available to the board on the issue of traffic congestion. Only after the board entered a deliberative session and started voting on a motion to deny the special exception, did plaintiff’s attorney offer to “come back with a traffic study.” The board denied the request and continued with the vote. The Supreme Court agreed with the trial court ruling that the refusal to accept the additional traffic report where the board had begun final deliberations did not constitute failure to fulfill its constitutional obligation to provide assistance.
Finally, the Supreme Court reaffirmed that the denial of plaintiff’s motion for rehearing by the ZBA was well supported by the record since that motion only sought to have the same engineering firm speak about the same traffic congestion conclusions using the same traffic data manual. As stated by the Court, a rehearing is not a matter of right and may be granted by the ZBA when in its opinion good reason supports it.
READ MORE IN COURT DECISION!
Practice Pointer: The duty to provide assistance and cooperate with land use board applicants does not require a ZBA to reopen a public hearing process to receive new evidence where the applicant’s attorney indicated all necessary evidence had been submitted prior to the start of final deliberations.
*This is a Final Order issued by the Supreme Court that disposes of a case that has been briefed but in which no opinion is issued. Although this Final Order has no precedential value it does provide helpful guidance for municipal officials.