Posted by: Patricia Salkin | July 11, 2016

NH Supreme Court Finds Stadium Lighting in Compliance with Approved Conditional Use Permit

The petitioners, James Alger and Lois Alger, appealed an order of the Superior Court that affirmed a decision of the zoning board of adjustment (ZBA) for defendant Town of Goffstown. The ZBA approved an administrative determination by the town’s code enforcement officer (CEO) that defendant St. Anselm College installed its stadium lighting in compliance with a conditional use permit issued by the town’s planning board, and that the board had not imposed any “additional conditions of approval for the project.” On appeal, the abutters contended that the trial court’s order upholding the ZBA was both factually and legally erroneous.

The court found that there was evidence before the trial court from which it could have reasonably found that, based upon the balance of probabilities, the ZBA’s decision that the CEO’s determination that the college’s permit did not contain any implied conditions was lawful and reasonable. Here, the CEO’s final determination letter stated that the college complied with the approved plan and that the board “made no additional conditions of approval for the project.” To the extent that the abutters contend that simply displaying the out-of-date aerial photograph, showing a buffer between the parties’ properties in a condition that no longer existed, the court noted that the college “was not relying on the vegetation to block light, but rather was relying on … the type and height of the fixtures to address the light impact on its neighbor.” Furthermore, the trial court noted that the ZBA did not address “the specifics of the buffer, such as the height, width, and type of the trees, as would be typical”, and the aerial photograph used by the Board contained no such detail. Accordingly, because the court concluded that the trial court’s finding that the college did not make any representation regarding the vegetative area’s function as a buffer was supported by the record, it did not address the trial court’s further finding that the board did not rely up such a representation.

Alger v Town of Goffstown, 2016 WL 3748661 (NH 5/13/2016)

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