Three Ponds Resort, LLC v. Town of Milton

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2019-0278, Three Ponds Resort, LLC v. Town
of Milton, the court on June 3, 2020, issued the following
order:

Having considered the briefs and oral arguments of the parties and the
record submitted on appeal, the court concludes that a formal written opinion
is unnecessary in this case. We affirm.

The plaintiff, Three Ponds Resort, LLC (Three Ponds), appeals an order of
the Superior Court (Houran, J.) upholding a decision of the zoning board of
adjustment of the defendant, the Town of Milton, denying Three Ponds’
application for a special exception. Three Ponds contends that the trial court
erred when it ruled that the ZBA: (1) could have reasonably concluded on the
evidence before it that granting the special exception would cause “undue
nuisance or serious hazard to pedestrian or vehicular traffic”; and (2) correctly
interpreted and applied the regional impact statutes, see RSA 36:54-:58 (2019).

The following facts are derived from the record. Three Ponds owns a
campground in Milton. The campground is located adjacent to Northeast Pond
and has 223 campsites, 220 of which are suitable for use by recreational
vehicles (RVs), and amenities including four bath houses, a playground, sports
fields, beaches, seasonal docks, and a boat launch. Its single access is from
Townhouse Road, which the ZBA found to be no more than 20 feet wide.

In 2017, Three Ponds proposed adding 173 new campsites and
approximately three acres of amenities. Under the terms of the Milton zoning
ordinance, this expansion is allowed only by special exception, which requires
the ZBA to find that: (1) “the specific site is an appropriate location for the
proposed use or structure”; (2) “the use will not be injurious, noxious, offensive
or detrimental to the neighborhood”; (3) “there will be no undue nuisance or
serious hazard to pedestrian or vehicular traffic”; (4) “adequate and appropriate
facilities and utilities will be provided to insure the proper operation of the
proposed use and structure so that the use will not be contrary to the public
health, safety or welfare”; and (5) “the proposed use or structure is consistent
with the spirit of this ordinance and the intent of the Master Plan.”

Following a public hearing, the ZBA denied Three Ponds’ application,
concluding that it did not meet the third special exception criterion in regard to
pedestrian and vehicular traffic. The ZBA granted Three Ponds’ request for a
limited rehearing solely regarding the third criterion. Subsequently, Three
Ponds amended its application to seek 163, instead of 173, new campsites.

Three Ponds hired a consultant to prepare a traffic study. The traffic
consultant presented its findings to the ZBA at the rehearing and concluded
that adding 173 new sites would result in “no material or undue operational or
safety impact” on Townhouse Road. At the rehearing, ZBA members expressed
concerns regarding the traffic study and voted to obtain an independent
technical review. The technical review concluded that: (1) “[t]he traffic study
used typical methodology for these types of studies”; (2) “[a] review of crash
history . . . indicates that there is not a significant safety issue on Townhouse
Pond [sic] Road”; and (3) based solely upon the road’s crash history “there is no
reason to expect that additional campground traffic would have an undue or
inordinate safety impact.” Although Three Ponds subsequently reduced the
number of new sites it sought to 95, 75 of which would be suitable for use by
RVs, the record does not reflect that it submitted any information regarding the
traffic impact of that reduction.

When the ZBA resumed the rehearing, it announced that it had
concluded that the proposed expansion was a development of potential regional
impact, pursuant to RSA 36:54. It further concluded that it was required to re-
notice the public hearing on the special exception, to include potentially
impacted municipalities in Maine, and to consider anew all five special
exception criteria.

Subsequently, the ZBA held several hearings, at which it received
additional evidence. Ultimately, it denied the special exception by a
unanimous vote, finding that the application did not meet special exception
criteria two, three, and five. Regarding criterion three, in its notice of decision
denying Three Ponds’ application, the ZBA found

there would be undue nuisance or serious hazard to pedestrian or
vehicular traffic including the location and design of access ways
and off-street parking because of Townhouse [Road] being a
maximum of 20ft in width, that [the campground] has one access
road, lack of safe ways for passage of pedestrians and bicyclists on
Townhouse [Road], studies[’] disregard [of] the road between the
intersections studied, that the study was done at the end of August
and that the road cannot be brought up to a safer standard.

Three Ponds moved for another rehearing, which the ZBA denied, and then
appealed the ZBA’s decision to the superior court. See RSA 677:4 (2016).

Following a hearing, the superior court upheld the ZBA’s decision,
finding that: (1) “the ZBA could have reasonably concluded on the evidence
before it that there would be an undue nuisance or serious hazard to vehicular

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and pedestrian traffic”; and (2) its “application of the regional impact statute
was neither unlawful nor unreasonable.” Because the trial court upheld the
ZBA’s finding that Three Ponds did not satisfy criterion three for a special
exception, it declined to address the ZBA’s findings on criteria two and five.

We first address whether the trial court erred by upholding the ZBA’s
decision that Three Ponds’ proposed expansion did not meet the town’s third
criterion for a special exception. The trial court’s review of the ZBA’s decision
is limited. Rochester City Council v. Rochester Zoning Bd. of Adjustment, 171
N.H. 271, 275 (2018). The trial court will not set aside the ZBA’s decision,
absent errors of law, unless the court is persuaded by the balance of
probabilities, on the evidence before it, that the ZBA’s decision was
unreasonable. See RSA 677:6 (2016). The trial court must deem the ZBA’s
factual findings prima facie lawful and reasonable. Id. The trial court’s review
is not to determine whether it agrees with the ZBA’s findings, but to determine
whether there is evidence upon which they could have been reasonably based.
Rochester City Council, 171 N.H. at 275.

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. Id. As the appealing
party, Three Ponds has the burden of demonstrating that the trial court
committed reversible error. See Gallo v. Traina, 166 N.H. 737, 740 (2014).

On appeal, Three Ponds argues that the trial court erred because the
traffic study commissioned by Three Ponds was “uncontradicted” and “the ZBA
chose instead to rely upon its own personal, unsubstantiated, conclusory
opinions.” It contends that, as a result, the ZBA’s findings were not entitled to
deference by the trial court. We disagree.

The ZBA was entitled to question and reject the methodology or
conclusions of the expert’s traffic assessment. See Trustees of Dartmouth Coll.
v. Town of Hanover, 171 N.H. 497, 507 (2018) (stating that planning board has
this authority). Although the ZBA may not disregard an expert opinion based
upon the vague and unsupported concerns of town residents, it may rely upon
residents’ statements of objective facts. See id. Similarly, although the ZBA
may not reject expert opinion based upon its members’ subjective personal
feelings or vague unsupported conclusions, id. at 513, “the members of the
board can consider their own knowledge concerning such factors as traffic
conditions, surrounding uses, etc., resulting from their familiarity with the area
involved.” Vannah v. Bedford, 111 N.H. 105, 108 (1971), overruled on other
grounds by Cook v. Town of Sanbornton, 118 N.H. 668, 671 (1978).

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 To support its contention that the ZBA erred by not accepting the
conclusions of the traffic study, Three Ponds relies upon Condos East Corp. v.
Town of Conway, 132 N.H. 431 (1989), and Continental Paving v. Town of
Litchfield, 158 N.H. 570 (2009). Those cases, however, are readily
distinguishable from this case.

In Condos East, the planning board “chose blatantly to ignore . . . expert
advice, even though it was completely uncontradicted.” Condos East, 132 N.H.
at 438. The planning board attempted “to justify its complete disregard for the
opinions of these experts by stating that the experts did not address the
steepness and dead-end aspects” of the road at issue. Id. at 436. The
evidence, however, did not support this conclusion because the experts, having
viewed the site, “could not help but take into account the physical attributes of
the proposed access.” Id.

In Continental Paving, there was “no evidence that the ZBA actually did
question the credibility or methodology of [the applicant’s] experts.”
Continental Paving, 158 N.H. at 575. “[T]he only evidence opposing the
application, other than two abutter complaints, [was] the 1998 Audubon fact
sheet that deal[t] with vernal pools in general.” Id. at 574 (quotation omitted).
“The same factors discussed generally in the conservation fact sheet and used
by the ZBA to deny the special exception . . . were specifically addressed by [the
applicant’s] experts and determined by them to not be negatively affected by
the proposed road.” Id. at 577.

In direct contrast to the facts in Condos East and Continental Paving, in
this case the ZBA considered Three Ponds’ traffic study in detail and identified
at least three significant concerns, all of which are amply supported by the
certified record.

First, the traffic study did not consider pedestrian traffic on Townhouse
Road. Its data collection was limited to two intersections: (1) where the
campground’s sole driveway met Townhouse Road; and (2) where Townhouse
Road met a state route. It did not collect data from the portion of Townhouse
Road between those two sites. The ZBA received public testimony from
numerous people that children and adults walk along Townhouse Road to a
beach and bicycle and jog on the road, that Townhouse Road was narrowed by
beachgoers parking on the side of the road, and that Townhouse Road had no
shoulders or sidewalk to shelter people on the road from wide vehicles, like
delivery trucks and RVs.

One ZBA member recounted his own experience, stating that he avoided
riding his bicycle on Townhouse Road when the campground was open. See
Vannah, 111 N.H. at 108 (stating that ZBA members can consider their own
knowledge concerning such factors as traffic conditions and surrounding uses
resulting from their familiarity with area involved). Another ZBA member,

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relying upon his knowledge of the road, stated that the existing traffic already
made the lack of sidewalks an issue. These were not personal opinions, but
rather descriptions of the members’ actual experience. Compare id. (stating
that ZBA members may consider their own knowledge) with Trustees of
Dartmouth, 171 N.H. at 513 (stating that planning board members may not
rely upon their personal feelings unsupported by evidence).

Second, the traffic study stated that “Townhouse Road is a conforming
local roadway that provides ample width ranging from 20-feet to 22-feet to
accommodate existing and modest increases in traffic activity following
campground expansion.” The traffic study further stated, apparently
extrapolating from the data collected at the intersections, that Townhouse
Road currently carries approximately 3,000 vehicles per day during the
summer. This figure included a 25 percent upward adjustment, based upon
historical traffic counts, to account for the anticipated increase in traffic after
the reopening of the bridge on Townhouse Road into Maine. The ZBA was
presented with the New Hampshire Department of Transportation Minimum
Geometric & Structural Guides for Local Roads and Streets (Guidelines) that
contradicted the traffic study’s statement that Townhouse Road had “ample
width.” The Guidelines provide that a road carrying an average of 1,500 or
more vehicles per day should be a minimum of 24-feet wide, with 8- to 10-foot
shoulders.

Furthermore, the traffic study did not consider that most of the increase
in traffic from the campground’s proposed expansion would consist of RVs.
Three Ponds’ traffic engineer testified that the Department of Transportation
reported that four percent of the overall trips on Townhouse Road were made
by “larger vehicles[ ](recreation vehicles, tow behinds, trailers).” Three Ponds’
final amendment to its special exception application sought 95 new campsites,
of which approximately 80 percent would be for RVs. The campground had
216 existing RV sites, making this an increase of approximately 35 percent in
the potential number of RVs. Two members of the public also expressed
concern about the increase in delivery vehicles required to service the proposed
amenities.

On this evidence, the ZBA could have reasonably concluded the traffic
study did not fully reflect the current conditions of Townhouse Road, that the
road was not wide enough to accommodate existing traffic comfortably, and
that increasing the number of wide vehicles using the narrow road — with no
shoulders or sidewalk — would endanger people walking, cycling, or running
on the road.

Third, numerous members of the public testified before the ZBA that,
because of the timing of the traffic study, it did not accurately represent peak
traffic on Townhouse Road. The traffic at the two intersections was measured
on the Friday morning and evening, and mid-day the following Saturday of the

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last weekend in August. A ZBA member commented that the study tallied no
RVs entering the campground during these hours. Several members of the
public testified that, although the campground was nearly full at the time of
the study, the peak time for rentals of summer homes in the area is actually
July, not August. One member of the public testified that most of his seasonal
neighbors were gone by the week in which the study was conducted. From this
evidence, the ZBA could have reasonably concluded that the assessment of
existing traffic in the study did not accurately represent peak traffic on
Townhouse Road. Cf. Continental Paving, 158 N.H. at 577 (stating that ZBA
erred by relying on general evidence that did not address application or
applicant’s evidence).

Three Ponds, relying upon cases from other states, contends that “lay
opinions of the members of the public who opposed [its] special exception
application were entitled to no probative weight from the ZBA” because “[t]hese
individuals were not traffic experts.” In New Hampshire, however, all people
“who can demonstrate that they are affected directly by the proposal under
consideration” are entitled to submit testimony to the ZBA. RSA 676:7, I(a)
(Supp. 2019). In this case, the testimony of numerous members of the public,
set forth above, did not consist of mere lay opinions, but, rather, consisted
largely of statements of objective facts. See Trustees of Dartmouth Coll., 171
N.H. at 507 (stating that planning board may not rely upon residents’ vague
and unsupported concerns, but may rely upon their statements of objective
facts).

Finally, we note that, although the traffic study predicted that, based
upon the data collected at the two intersections, the proposed expansion would
result in 42 additional vehicle trips per hour at Saturday mid-day peak, the
study also acknowledged that the use of “industry standard” projections would
result in 67 additional trips per peak hour. This dichotomy is notable. From
these disparate figures the ZBA could have reasonably concluded that the
proposed expansion would have more than doubled the campground traffic at
peak hours, from the current 54 vehicle trips at Saturday mid-day to 121
vehicle trips per peak hour. Moreover, given that the traffic study stated that
Townhouse Road carried approximately 300 vehicles per hour during peak
hours, the ZBA could have reasonably concluded that, at peak hours, the
proposed expansion would add approximately one vehicle per minute to a
narrow road already carrying approximately five vehicles per minute at peak
hours.

In conclusion, in this case the trial court found that “[t]he members of
the ZBA drew on their own experience, in addition to the testimony of local
residents, to determine that the [traffic] survey simply did not account for all of
the hazards along Townhouse Road.” On this record, and applying our
deferential standard of review, we conclude that Three Ponds has failed to carry
its burden to establish that the trial court’s decision to uphold the ZBA’s denial

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of the application for a special exception is unsupported by the evidence or
legally erroneous. See Rochester City Council, 171 N.H. at 275. Because we
affirm the trial court’s decision as to special exception criterion three, we need
not address Three Ponds’ statutory arguments regarding the regional impact
statutes.

Affirmed.

HICKS, BASSETT, HANTZ MARCONI, and DONOVAN, JJ., concurred.

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