Manley Burke Files Amici Brief in Hanover NH Zoning Case

Sean Callan, Manley Burke, sean.callan@manleyburke.com

In September, 2017, we reported on New Hampshire Alpha of SAE Trust v. Town of Hanover, and Town of Hanover Zoning Board of Adjustment, (Docket No. 16-CV-283), a case then pending in the Grafton County Superior Court.  To recap, the case involved the de-recognition of the SAE chapter by Dartmouth College and the subsequent revocation of the house corporation’s zoning permit under the Town of Hanover zoning ordinance.¹

Under the Hanover zoning ordinance, a “student residence” is defined in part as follows:  “A building designed for and occupied by students and operated in conjunction with another institutional use . . .” In Hanover’s view, the other “institutional use” referred to the College.  Accordingly, because the College revoked its recognition of the SAE chapter, the chapter house was no longer “operated in conjunction with another institutional use” and therefore became unlawful.

At the time of our prior report, the SAE house corporation had lost its administrative appeal, and had lost on appeal to the trial court.  However, there remained a pending motion for reconsideration focused on the argument that the Ordinance unlawfully delegated the Town’s zoning authority to a private actor, namely Dartmouth College.  We believed that this argument had promise.  Under Hanover’s interpretation of its Ordinance, the lawfulness of a use as a “student residence” lay squarely on the determination of a third-party private actor, namely Dartmouth College.  On October 5, 2017, the Grafton Superior Court denied the motion for reconsideration without comment.

After the trial court denied the motion for reconsideration, the SAE house corporation filed an appeal to the New Hampshire Supreme Court.  (New Hampshire Alpha of SAE Trust v. Town Of Hanover, Case No. 2017-0634).  In its merit brief, the SAE house corporation asserted several grounds for appeal including (i) that the Ordinance unlawfully delegates the Town’s zoning authority to Dartmouth College, (ii) that the application of the Ordinance amounted to a taking, (iii) that the trial court improperly construed the term “institution” as used in the Ordinance, (iv) equal protection violations, (v) that the chapter house use was a lawful, non-conforming use and (vi) procedural due process violations.

In support of the merit brief, Manley Burke/Fraternal Law Partners filed an amici brief on behalf of several other house corporations owning chapter houses in Hanover including Phi Delta Alpha Corporation, Zeta Association of Psi Upsilon and the Trustees of Alpha Omega Chapter of Beta Theta Pi Fraternity.²  The amici brief is focused entirely on the idea that the Ordinance unlawfully delegates the Town’s zoning authority to Dartmouth College.

New Hampshire precedent allows a governmental delegation of authority only if it is accompanied by meaningful standards and procedural protections.  In Guillou v. Div. of Motor Vehicles, 127 N.H. 579 (1986), the New Hampshire Supreme Court struck down a statute that permitted the director of motor vehicles to order “any license issued to any person under the provisions of this title to be suspended or revoked, after due hearing, for any cause which he may deem sufficient.”  Id. at 580.  As the Court explained, the statutory grant of authority to the director was invalid because it was overbroad and lacked “any express or implied qualifications” to guide the director’s discretion.  Id. at 581 (emphasis in original).  The Court expressed concern that, under this regime of unchecked and unbounded authority, “the potential for arbitrary and unprincipled decisions is great.”  Id.; see also Fernald v. Bassett, 107 N.H. 282, 284 (1966) (striking down zoning ordinance on grounds of unlawful delegation because the ordinance “failed to establish standards by which the board should be governed” in its decision making).

Here, however, the Ordinance contains no standards or procedural safeguards.  There is no protection against arbitrary action.  To the contrary, the Ordinance delegates completely the decision about “institutional use” to the College, a private party.

Moreover, the College is a private party that adamantly asserts its right to make arbitrary decisions.  The College representative that testified at the ZBA hearing confirmed that the College was “entitled through whatever process we want to decide whether we are going to continue to have a relationship with an organization or not.  That’s a right we have.”

Finally, the College is no disinterested party.  To the contrary, the ZBA determined that as an abutting landowner, the College would be “directly affected” by the outcome of the SAE house corporation appeal.  Beyond being directly affected legally by the outcome of this case, the College is financially interested in seeing the Town prevail in this case.  The College has enunciated a strategy to (1) report derecognized chapters to the Town and (2) acquire their facilities and repurpose them for the College’s residential, social and academic purposes.  (See “Report of the Presidential Steering Committee for Moving Dartmouth Forward”, p.44).  In other words, the College is counting on the Town to revoke zoning permits.

The delegation contained in the Ordinance appears unlawful.  As of this writing, the Town has yet to respond to the initial briefing.  Accordingly, there is still a long way to go in this case.  We will keep our readers updated as events warrant.

1 A more detailed description of the facts of the case can be found at this link:  https://fraternallaw.com/wp-content/uploads/2017/09/Fraternal-Law-Newsletter-Sept-2017.pdf

2 The amici brief can be reviewed at this link:  https://fraternallaw.com/wp-content/uploads/2018/06/2018.4.30-Final-Amicis-Brief.pdf