2015-0471, Appeal of James G. Boyle, as Trustee of the 150 Greenleaf Avenue Realty Trust

declaratory ruling no. 2000 – 01; issued March 10, 2000) (hereinafter referred to Driveways and Other Accesses to the State Highway System (N.H. DOT Accesses to the State Highway System.” See Policy for the Permitting of Transportation’s (DOT) “Policy for the Permitting of Driveways and Other decision upon sections 7(a) and 7(e) of the New Hampshire Department of permit to construct a driveway onto a state highway. Th e TAB based its Transportation Appeals Board (TAB) affirming the denial of his application for a Greenleaf Avenue Realty Trust, appeals a decision of the New Hampshire BASSET T, J. The petitioner, James G. Boyle, as trustee of the 150

Transportation. general, on the brief and orally), for the New Hampshire Department of Joseph A. Foster, attorney general (John J. Conforti, assistant attorney

Kuzinevich on the brief and orally), for the petitioner. Law Offices of John Kuzinevich, of Duxbury, Massachusetts (John

(New Hampshire T ransportation Appeals Board)

No. 2015 - 0471 Transportatio n Appeals Board

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh. us. Opinions are available on the Internet by 9:00 to press. Errors may be reported by E - mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concor d, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

Hampshire Administrative Rule, Tra p. 2 202.01 (a), the commissioner appointed a The petitioner appealed to the DOT commissioner. Pursuant to New

traffic signal to access [the] Rout e 1 By - P ass.” “consists of lower traffic volumes and lower speeds, with the added benefit of a safer alternative” than the proposed driveway because Greenleaf Avenue roadway.” According to DePorter, the access by way of Greenleaf Avenue is “a Route 1 Bypass would introduce a new conflict point along a highly traveled Pass via Greenleaf Avenue,” and that the “requested direct access to [the] US the fact that the [petitioner] has historically had access to [the] Route 1 By permit application. DePorter explained that the “reason for the denial included In p. 2 2011, the District Engineer, Douglas DePorter, denied the petitioner’s

for the current and p roposed dealerships. his existing Bypass acc ess and the proposed driveway as entrances and exits driveway with direct access to the Bypass. The petitioner wanted to use both petitioner filed an application with the DOT for a permit to construct a part of a plan t o add a second automobile dealership to the parcel, the has access to the Bypass only by way of Greenleaf Avenue. Thus, in p. 2 2010, as Avenue. It has over 800 feet of frontage on the Bypass. Currently, t he parcel Portsmouth at the intersection of the US Route 1 Bypass and Greenleaf on which he operates an automobile dealershi p. The parcel is located in The pertinent facts follow. The petitioner owns a 13 - acre parcel of land,

and, therefore, reverse. — it affirmed the denial of his permit application. We agree with the petitioner, the safety of the traveling public — a determination that has not been appealed when, after concluding that the proposed driveway would adequately protect hazard to the traveling public. Thus, the petitioner asserts that the TAB erred safety of the traveling p ublic and simultaneously cause an unreasonable hazard, arguing that it is impossible for a driveway to adequately protect the On appeal, the petitioner challenges the finding of an un reasonable

permit application. the traveling public, it upheld the hearings examiner’s denial of the petitioner’s conclusion that the proposed driveway would cause an unreasonable hazard to determined that there was sufficient support for the hearings examiner’s would adequately protect the safety of the traveling public, because it also Here, although the TAB concluded that the petitioner’s proposed driveway unreasonable hazard to the traveling public.” Id. § 7(e) (e mphases added). that a “driveway permit shall be denied if the proposed driveway will cause an (emphases added). By contrast, section 7(e) of the Driveway Policy provides the traveling public can be adequately protected.” N.H. Driveway Policy § 7(a) if the application and supporting information demonstrates that the safety of the Driveway Policy state s that a “driveway construction permit shall be issued and cited as the “Driveway Policy” or “N.H. Driveway Policy”). Section 7(a) of p. 3 3

onto the state highway do not appear to create any hazard beyond with existing traffic patterns and the additional vehicles entering Avenue. On the surface the design of the driveway appears to flow seemingly better suited to handle traffic than the current Greenleaf so in a way that adds a driveway with direct access onto a highway petitioner]. [The petitioner] seeks to expand a business and to do The Board is sympathetic to the predicament faced by [the

unreasonable hazard to the traveling public.” The TAB also stated: “could also find that the proposed driveway somehow constitutes an driveway would adequately protect the safety of the traveling public, the DOT seemingly nonsensical that simultaneously with” finding that the proposed The petitioner again appealed to the TAB. T he TAB observed that i t “is

driveway, and in general, decreas [e] safety to the overall highway system.” improve existing conflict points, fail [] to remove or improve the existing additional conflict points to an already busy State highway, fail [] to remo ve or hearings examiner explained that the proposed driveway would “add [] driveway would “create [] an unreasonable hazard for the traveling public.” The Upon remand, the hearings examiner determined that t he proposed

w ould cause an “unreasonable hazard.” for the proposed driveway should be denied because the proposed driveway public of the existing and proposed access,” the petitioner’s permit ap plication determine whether, “taking into account the relative impact on the traveling protected.” It then remanded the matter for the hearings examiner to met his “burden of establishing that t he traveling public can be adequately public can be adequately protected.” T he TAB determined that the petitioner provide[s] maximum safety,” but rather only that the “safety of the traveling concluded that the petitioner “need not show that the proposed dri veway unreasonable hazard by virtue of this particular driveway permit,” t he TAB can simultaneously be adequately protected and yet somehow be subject to § 7(a), (e). Observing that it “is hard to envision . . . that the traveling public the [petitioner’s] property has on Greenleaf Avenue.” See N.H. Dr iveway Policy proposed driveway posed an unreasonable hazard in light of the existing access provided adequate safety to the traveling public,” he also testified that “the had testified before the hearings exami ner that “the proposed driveway sections 7(a) and 7(e) of the Driveway Policy, noting that, although DePorter T he petitioner appealed to the TAB. In its decision, the TAB r e ferenc ed

Bypass. different discussion” had the petitioner been “landlocked” with no access to the minimize conflict points.” She also observ ed that “there would likely be a keeping with the purpose” of the Driveway Policy: to “maximize safety and . . . denial of the petitio ner’s permit application, concluding that the “denial is in hearings examiner to adjudicate the appeal. The hearings examiner upheld the p. 4 4

Servs., 166 N.H. 755, 758 (201 p. 4 4) (quotation omitted). We note that we have administrative rul es as we use with statutes.” Bovaird v. N.H. Dep’t of Admin. interpretation. “We use the same principles of construction in interpreting Resolving th is threshold question requires statutory and regulatory

N.H. 731, 733 (201 p. 4 4). issues of law de novo, see Appeal of Hillsborough County Nursing Home, 166 presumed prima facie lawful and reasonable, id., and we review rulings on unreasonable.” RSA 541:13. The hearings examiner’s findings of fact are clear preponderance of the evidence,” that the TAB decision “is unjust or be “set aside or vacated except for errors of law,” unl ess we are “satisfied, by a the decision is “clearly unreasonable or unlawful.” The TAB decision will not seeking to set aside a decision of the TAB has the burden of demonstrating that 21 - L:18 (2012); RSA 541:2 (2007). Pursuant to RSA 541:13 (2007), a party public. RSA chapter 541 governs our review of the TAB decision. See RSA public and simultaneously cause an unreasonable hazard to the traveling Policy, a proposed driveway can adequately protect the safety of the traveling T he initial question that we must answer is whether, under the Driveway

hearings examiner. deference, especially in light of the “extensive factual findings” made by the interpretation and application of the Driveway Po licy should be granted a showing of adequate p rotection.” Finally, the DOT asserts that its as a whole, the Driveway Policy “does not require issuance of a permit solely on “superfluous” section 7 (e) of the Policy. The DOT also argues that, when read conflict. According to the DOT, accepting the petitioner’s position would render broader concerns than section 7(a), and, thus, the two sections are not in In response, the DOT argues that section 7(e) of the Driveway Policy covers section 7(a) of the Driveway Policy, to issue a permit for the proposed driveway. adequately protect the safety of the traveling public, the DOT is required, under DOT has not appealed the TAB’s conclusion that the proposed driveway would and an unreasonable hazard.” The petitioner also argues that, given that the and factually “impossible for something to simultaneously be adequately safe driveway would cause an unreasonable hazard, and asserts that it is legally On appeal, t he petitioner c hallenges the finding that the proposed

unreasonable.” This appeal followed. denial of the permit application was “arbitrary, capricious, unlawful, or findings regarding an unreasonable hazard, it could not conclude that the the traveling public. The TAB expla ined that, given the hearings examiner’s conclusion that the proposed driveway would cause an unreasonable hazard to Notwithstanding these comments, t he TAB upheld the hearings examiner’s

reasonable. respects [the petitioner’s] request for the driveway seems that which is generally a part of a growing population. In all p. 5 5

(2014). guidance.” K.L.N. Construction Co. v. Town of Pelham, 167 N.H. 180, 18 p. 5 5 236:13, we look to the terms’ “common usage, using the dictionary for “safety” nor “unreasonable hazard” is defined in the Driveway Policy or in RSA “unreasonable hazard” as used in sections 7(a) and 7(e). Because n either language of the Driveway Policy. We, therefore, examin e the terms “safety” and public. Whether these two conclusions can coexist turns on the specific proposed driveway would cause an unreasonable hazard to the traveling to be sufficient support for the hearings examiner’s conclusion that the would adequately protect the safety of the traveling public, yet also found t here In this case, the TAB concluded that the petitioner’s proposed driveway

conflict points.” N.H. Driveway Policy § 1. movement,” maintain “the serviceability of affected highways,” and “[m]inimize and protection to the traveling public through th e orderly control of traffic the purpose of the driveway permitting process is to “[p]rovide maximum safety In March 2000, the DOT adopted the Driveway Policy. It provides that

p. 5 568 - 69, 571 (quotation omitted). purpose of the statute.” Appeal of N.H. Dep’t of Trans portation, 152 N.H. at the DOT has the authority to adopt rules to “fill in details to effectuate the when determining whether and under what co nditions to grant such a permit,” RSA 236:13 merely “provides the DOT with baseline parameters to consider of N.H. Dep’t of Transportation, 152 N.H. at 568; see RSA 236:13, I - II. Because maintained portion of a class II highway,” which includes the Bypass. Appeal constructing driveway access to a class I or class III highwa y or to the State - RSA 236:13 “requires a person to obtain a permit from the DOT before N.H. at 568 (quotation and brackets omitted); see RSA 236:13 (Supp. 2015). permit obtained from the D OT.” Appeal of N.H. Dep’t of Transportation, 152 alter any entrance onto a State highway without complying with the terms of a access to State highways and has made it unlawful for anyone to construct or T he DOT has “broad power to regulate driveways and other means of

absurd or unjust result.” Id. (quotation omi tted). omitted). “We seek to effectuate the overall legislative purpose and to avoid an overall statutory or regulatory scheme and not in isolation.” Id. (quotation we interpret disputed languag e of a statute or regulation in the context of the different meaning was intended.” Id. at 7 p. 5 59 (quotation omitted). “Additionally, approved usage of the language unless from the statute it appears that a “W ords and phrases in a statute are construed according to the common and meanings to words used.” Bovaird, 1 p. 6 66 N.H. at 758 (quotation omitted). language used, and, where possible, we ascribe the plain and ord inary construing statutes and administrative regulations, we first examine the Appeal of N.H. Dep’t of Transportation, 152 N.H. 565, 569 - 76 (2005). “When treated the Driveway Policy in the same manner as an administrative rule. See 6

we reverse the TAB decision. that the finding regarding an unreasonable hazard cannot stand. Accordingly, that the DOT has not challenged the finding concerning safety, we conclude the traveling public. Given that the two findi ngs are mutually exclusive, and under section 7(e), the proposed driveway will cause an unreasonable hazard to Rather, the DOT argues only that the application must be denied because, proposed driveway will adequately protect the safety of the traveling public. H ere, it is significant that the DOT has not appealed the finding that the

mandatory.”). Thus, logically, one of these mandatory outcomes must yield. construction that . . . the word ‘shall’ makes enforcement of a provision Bazemore & Jack, 153 N.H. 351, 354 (200 p. 6 6) (“It is a gener al rule of statutory public.” N.H. Driveway Policy § 7(a), (e) (emphases added); see In the Matter of the “proposed driveway will cause an unreasonable hazard to the traveling traveling public can be adequately pr otected,” and it “shall be denied” because outcome s: the driveway permit “shall be issued” because “the safety of the In this case, under the Driveway Policy, t he findings compel i ncompatible

capricious and insufficient to support a judgment”). material issues, made on the basis of a given evidentiary record, ar e necessarily Associates, 127 N.H. 21, 32 (1985) (explaining that “contradictory findings on unreasonable hazard to the traveling public. See Appeal of Lemire - Courville examiner’s conclusion that the propos ed driveway would also cause an the safety of the traveling public, it, nevertheless, upheld the hearings burden of demonstrating that the proposed driveway would adequately protect T herefore, the TAB erred when, after concluding that the petitioner had met his traveling public and, at the same time, create an unreasonable hazard. Thus, a proposed driveway cannot adequately protect the safety of the

peril that is excessively dangerous. “unreasonable hazard” — as that term is used in the Driveway Policy — to be a “[n]ot guided by reason; irrational or capricious”). Accordingly, we interpret an also Black’s Law Dictionary 1772 (10th ed. 2014) (defining “unreasonable” as Webster’s Third New International Dictionary 250 7 (unabridged ed. 2002); see “[U]nreasonable” is defined as “exceeding the bounds of reason or moderation.” contributing to a peril.” Black’s Law Dictionary 834 (10th ed. 2014). Dictionary provides that a “hazard” is a “[d]anger or peril; esp[ecially], a factor Third New International Dictionary 1041 (unabridged ed. 2002). Black’s Law “hazard” as “a possible source of peril, danger, duress, or difficulty.” Webster’s By contrast, Webster’s Third New International Dictionary defines a

causing danger.” Black’s Law Dictionary 153 p. 6 6 (10th ed. 2014). 2002). Black’s Law Dictionary defines “safe” as “[n]ot exposed to danger; not danger.” Webster’s Third New International Dictionary 1998 (unabridged ed. part, as “freed from harm, injury, or r isk” and “affording protection from Webster’s Third New International Dictionary defines “safe,” in pertinent p. 7 7

DAL I ANIS, C.J.