Posted by: Patricia Salkin | May 12, 2019

NH Supreme Court Upholds Grant of Special Exception to Water Company Dismissing Ethics Allegations Against ZBA Chair

This post was authored by Matthew Loeser, Esq.

Plaintiffs, Jeremiah J. and Laurie E. O’Sullivan, appealed a decision of the Superior Court which upheld a December 2017 decision of the Town of North Hampton’s zoning board of adjustment to grant a special exception to Aquarion Water Company. Plaintiffs, who participated in the ZBA proceedings from the outset, contended that the trial court erred when it determined that plaintiffs failed to seek recusal of the ZBA chair at the earliest possible opportunity. The plaintiffs further claimed that the ZBA chair was biased against them because he had worked as a “licensed general appraiser, consultant and expert for many electric public utility companies in tax abatement matters throughout New Hampshire and New England,” and because he had previously worked on tax abatement matters for Public Service Company of New Hampshire (PSNH), the predecessor of the company that owned Aquarion. In response, the Town argued that the chair’s “business of providing appraisals of hydroelectric utility facilities to electric utility companies,” in addition to providing appraisals to “a number of municipalities, corporations and banks,” did not create “a conflict of interest in a land use application to consolidate water treatment operations under one roof.”

The record reflected that the plaintiffs did not raise the issue of the ZBA chair’s alleged bias until they filed their request for a rehearing. The court agreed with the trial court that by so doing, the plaintiffs failed to raise the bias issue at the earliest possible time. Despite the fact the plaintiffs contended that they did not discover this information until after the ZBA granted the special exception, there was no evidence that the plaintiffs or their attorneys could not have discovered it before then, as the information upon which the plaintiffs relied on in their argument that the ZBA chair was biased was all publicly available.

The plaintiffs next claimed that the ZBA chair had a duty to disclose publicly his “35 year professional history in the public utility industry,” As the trial court found, however, there was no evidence that the ZBA chair had any direct involvement in this particular project, or that granting Aquarion a special exception would impact his future business dealings with Aquarion’s parent company.

The plaintiffs also contended that the trial court erred by upholding the ZBA’s reliance upon the opinion of Aquarion’s expert that the value of surrounding property would not be diminished by the construction of the water treatment plant. The record reflected that Aquarion’s expert opined that the surrounding properties would not suffer a diminution in value because the proposed water treatment facility “is not inconsistent with the property’s long-time use.” This opinion was shared by members of the ZBA, based upon their own knowledge, experience, and observations. As such, the court found no error in the trial court’s determination that the ZBA could properly rely upon the opinion of Aquarion’s expert that the property values of surrounding properties would not be diminished because of the proposed water treatment plant.

Finally, the plaintiffs claimed that the trial court erred by not considering information they submitted, for the first time, with their motion for reconsideration. Specifically, the plaintiffs appended to their motion records from the New Hampshire Department of Environmental Services (“DES”) regarding the water treatment chemicals that Aquarion used. The trial court declined to consider that evidence since the plaintiffs could have submitted it to the ZBA at the hearing on the special exception, but did not do so. The court found that the trial court was within its discretion not to consider information that could have been, but was not, presented to the ZBA.  The trial court’s holding was therefore affirmed.

Jeremiah J. O’Sullivan & a. v. Town of North Hampton, 2019 WL 2375381 (NH 5/3/2019)

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