Jeremiah J. O'Sullivan & a. v. Town of North Hampton

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2018-0576, Jeremiah J. O’Sullivan & a. v. Town
of North Hampton, the court on May 3, 2019, issued the
following order:

Having considered the opening and reply briefs submitted by the
plaintiffs, Jeremiah J. and Laurie E. O’Sullivan, the brief submitted by the
defendant, the Town of North Hampton (Town), the brief submitted by the
intervenor, Aquarion Water Company (Aquarion), and the record submitted on
appeal, we conclude that oral argument is unnecessary in this case. See Sup.
Ct. R. 18(1). The plaintiffs appeal a decision of the Superior Court (Wageling,
J.), which, following a hearing and a view, upheld a December 2017 decision of
the Town’s zoning board of adjustment (ZBA) to grant a special exception to
Aquarion. We affirm.

The trial court’s review of the ZBA’s decision is limited. See Kalil v. Town
of Dummer Zoning Bd. of Adjustment, 155 N.H. 307, 309 (2007). The trial
court will not set aside the ZBA’s decision, absent errors of law, unless the
court is persuaded by a balance of probabilities that the ZBA’s decision was
unlawful or unreasonable. See RSA 677:6 (2016). The trial court must deem
the ZBA’s factual findings prima facie lawful and reasonable. Id. The review by
the trial court is not to determine whether it agrees with the zoning board of
adjustment’s findings, but to determine whether there is evidence upon which
they could have been reasonably based. Rochester City Council v. Rochester
Zoning Bd. of Adjustment, 171 N.H. 271, 275 (2018). “The trial court does not
sit as a ‘super zoning board.’” Id. (quotation omitted).

Our review of the trial court’s decision is similarly deferential. We will
uphold its decision on appeal unless it is unsupported by the evidence or
legally erroneous. Id. “Our inquiry is not whether we would find as the trial
court found, but rather whether the evidence before the court reasonably
supports its findings.” Vigeant v. Town of Hudson, 151 N.H. 747, 750 (2005).
The trial court’s findings are within its sound discretion, particularly when, as
in this case, a view has been taken. See id. As the appealing parties, the
plaintiffs have the burden of demonstrating that the trial court committed
reversible error. See Gallo v. Traina, 166 N.H. 737, 740 (2014).

The plaintiffs, who participated in the ZBA proceedings from the outset,
first argue that the trial court erred when it determined that they failed to seek
recusal of the ZBA chair at the earliest possible opportunity. The plaintiffs
allege that the ZBA chair was biased against them because he has 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 previously worked on tax abatement matters for
Public Service Company of New Hampshire (PSNH), the predecessor of the
company that now owns Aquarion. The Town counters 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,” does not create “a conflict of interest
in a land use application to consolidate water treatment operations under one
roof.”

We require disqualification issues to be raised at the earliest possible
time because “trial forums should have a full opportunity to come to sound
conclusions and to correct errors in the first instance.” Fox v. Greenland, 151
N.H. 600, 604 (2004) (quotation omitted). Here, the plaintiffs did not raise the
issue of the ZBA chair’s alleged bias until they filed their request for a
rehearing. We agree with the trial court that by so doing, the plaintiffs failed to
raise the bias issue at the earliest possible time.

The information upon which the plaintiffs relied to argue that the ZBA
chair was biased was all publicly available, and could have been discovered by
the plaintiffs (or by the attorneys who represented them in the ZBA
proceedings) before the ZBA heard Aquarion’s application for a special
exception. While the plaintiffs contend that they did not discover this
information until after the ZBA granted the special exception, there is no
evidence that they or their attorneys could not have discovered it before then.
“Interested parties,” such as the plaintiffs, “are entitled to object to any error
they perceive in governmental proceedings, but they are not entitled to take
later advantage of error they could have discovered or chose to ignore at the
very moment when it could have been corrected.” Id. (quotation omitted).
Because we uphold the trial court’s determination that the plaintiffs failed to
seek recusal of the ZBA chair at the earliest possible opportunity, we need not
address the parties’ arguments as to the trial court’s alternative conclusion
that the ZBA chair was not, in fact, biased.

To the extent that the plaintiffs argue that the ZBA chair had a duty to
disclose publicly his “35 year professional history in the public utility
industry,” we disagree. The municipal code of ethics upon which the plaintiffs
rely for this assertion requires a municipal board member to “publicly disclose
. . . any and all conflicts of interest.” We are not persuaded that the ZBA chair
had a conflict of interest in this matter that he was required to disclose. As the
trial court found, and as the record supports, there is 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, if any,
with Aquarion’s parent company.

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 The plaintiffs next assert 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. According to the plaintiffs, the expert’s report does not
constitute competent evidence and, therefore, the ZBA erred by relying upon it.
However, it was the responsibility of the ZBA, not the trial court, to resolve any
conflicts in evidence, including conflicting expert opinions. See Harborside
Assocs. v. Parade Residence Hotel, 162 N.H. 508, 519-20 (2011). “[T]he ZBA
was also entitled to rely upon its own knowledge, experience and observations.”
Id. at 520.

Here, Aquarion’s expert opined that the surrounding properties would
not suffer a diminution in value, in part, because the proposed water treatment
facility “is not inconsistent with [the property’s] long-time use.” That opinion
was shared by members of the ZBA, based upon their own knowledge,
experience, and observations. For instance, one member stated that he was
not persuaded by the argument that there would be a diminution of
surrounding property values because “water treatment operations have existed
on the property for a long period of time,” and the “public is currently aware of
the activities occurring on the site.” Another opined that “property values for
the abutting property . . . will be at a greater risk to decrease if a modern,
reliable system to provide safe drinking water is not established.” In short, we
find 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.

The plaintiffs next contend that the trial court erred by upholding the
ZBA’s determination that the water treatment plant would not unreasonably
adversely affect the public interest, safety, health, or welfare. We conclude that
the trial court did not err in this respect.

The plaintiffs acknowledge that the ZBA’s determination is supported by
statements made by Aquarion’s engineer at the ZBA hearing. They argue that
his statements provide insufficient support because he failed “to present
evidence” to support his statements.

At the hearing, the engineer stated that the proposed water treatment
plant would “improve the safety and reliability of the water supply” for
Aquarion’s 9,100 customers by consolidating water treatment and chemical
storage “in one secure facility . . . that meets or exceeds all regulatory and
industry standards.” He also stated that, because with the water treatment
plant, water treatment chemicals will be introduced into the water with hoses,
rather than by humans “physically dumping” them, there would be less of a
chance for a chemical spill. The engineer also stated that there would be “no

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odors or fumes created by the proposed plant operations” and that the public
would not have “direct contact with the chemicals.”

The plaintiffs argue, in effect, that the ZBA erred by finding the engineer
to be credible. However, it was for the ZBA to assess the credibility of the
parties’ offers of proof. See id. at 519.

Finally, the plaintiffs argue that the trial court erred by not considering
information they submitted, for the first time, with their motion for
reconsideration. The plaintiffs appended to their motion records from the New
Hampshire Department of Environmental Services (DES) concerning the water
treatment chemicals that Aquarion uses. The trial court declined to consider
that evidence because the plaintiffs could have submitted it to the ZBA at the
hearing on the special exception, but chose not to do so.

“Whether to receive further evidence on a motion for reconsideration
rests in the sound discretion of the trial court.” Lillie-Putz Trust v. DownEast
Energy Corp., 160 N.H. 716, 726 (2010). We review the trial court’s ruling for
an unsustainable exercise of discretion and will not overturn it unless the
plaintiffs can show that it was clearly untenable or unreasonable to the
prejudice of their case. See id. Moreover, in the context of an appeal of a ZBA
decision, “[i]t is the trial court’s prerogative to determine whether admission of
further evidence would advance justice or judicial economy. The trial court is
in the best position to determine the sufficiency of the record before it.”
Robinson v. Town of Hudson, 149 N.H. 255, 258 (2003) (quotation omitted).

Here, we cannot conclude that the trial court unsustainably exercised its
discretion by declining to consider the DES information the plaintiffs submitted
for the first time with their motion for reconsideration. The trial court was well
within its discretion not to consider information that could have been, but was
not, presented to the ZBA. As the trial court observed: “The ZBA weighed the
evidence and assessed the credibility of offers of proof based upon the
information that it had at the time, and the process of appellate review is not
designed to afford the losing side an opportunity to undermine those credibility
determinations in this manner, particularly where such evidence is submitted,
for the first time, in . . . a motion for reconsideration.” We have reviewed the
plaintiffs’ remaining arguments and conclude that they do not warrant further
discussion. See Vogel v. Vogel, 137 N.H. 321, 322 (1993).

Affirmed.

Lynn, C.J., and Hicks, Hantz Marconi, and Donovan, JJ., concurred.

Eileen Fox,
Clerk

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