2016-0304, Dartmouth Corporation of Alpha Delta v. Town of Hanover

affirm. Wheelock Street (the property) violates the Town’s z oning o rdinance. We Town of Hanover (Town), that the use of Alpha Delta’s property at 9 East the decision of the Z oning B oard of A djustment (ZBA) for the defendant, the (Alpha Delta), appeals an order of the Superior Court (MacLeod, J.) affirming DALIANIS, C. J. The plaintiff, Dartmouth Cor poration of Alpha Delta

brief and orally), for the defendant. Mitchell Municipal Group, P.A., of Laconia (Laura Spector - Morgan on the

and orally), for the plaintiff. Cole Associates Civil Law, PLLC, of Lebanon (Carolyn K. Cole on the brief

No. 2016 - 0304 Grafton

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

from the College’s rooming system under which student room rents are paid In addition, the College notified Alpha Delta that it would be removed

C o llege activities such as intramurals; and provision of insurance coverage.” residential facility; use of College facilities or resources; participation in any Dartmouth College u nde rgraduates; recognition as a ‘college approved’ that “derecognition” revoked the following privileges: “r ecruitment of condoned and long - standing practice of the organization.” The letter stated College also found that the practice of branding new members “is an overtly harm and . . . a subsequent threat to [the members ’] continuing safet y.” The branded with the Alpha Delta fraternity letters, which had “caused physical under suspension by the College, 11 new members of the fraternity were over two nights in November p. 2 2014, during a time when the fraternity was recognition of the fraternity as a student organization. The College found that the fraternity’s violation of the school’s standards of conduct, it had revoked O n April 13, 2015, the College notified Alpha De lta by letter that, due to

exception for the use of its property. facilities for any number of students.” Alpha Delta has never sought a special use, which may include individual living units with social rooms and kitchen occupied by students and operated in conjunction with another inst itutional a “s tudent residence” in the Institution d istrict as “[a] building design ed for and I nstitution d istrict is allowed only by special exception. T he ordinance defines property is located within the “Institution” d istrict. A s tudent residence in the In 1976, the T own enact ed its current zoning ordinance, u nder which the

Alpha Delta as a fraternity was allowed as of right. 1970s, the property was located in various zoning districts where its use by educational institution” was permitted as of right. B etween 1931 and the mid - “[e]ducational use, or dormitory . . . incidental to and controlled by an Delta’s property was located in the “Educational District” in which an In 1931, the T own enacted its first zoning ordinance. At that ti me, Alpha

undergraduate students who are members of the fraternity. used continuously since as housing for approximately 18 - p. 2 22 College 1920, Alpha Delt a sold that house and built its current structure, which it has until 1911, when a new house was built to the west of the College Green.” In Dartmouth in nature.” The fraternity “set up operations in Dartmouth Hall Delta, “to symbolize the return to the literary traditions, which were purely professor’s office. The fraternity subsequently changed its name to Alpha of the national organization of Alpha Delta Phi took place in a College Alpha Delta’s website included in the certified record, in 1846 the installation at Dartmouth College (College) since the 18 4 0s. According to the printout from The relevant facts follow. Alpha Delta has been a fraternity for students

I. Background p. 3 3

recognition/derecognition status as a zoning requirement, Alpha Delta should Delta’s argument that, to the extent the zoning administrator had adopted student residence violat ed the zoning ordinance. The ZBA rejected Alpha zoning administrator’s determination that Alpha Delta’s use of its property as a Following a hearing, t he ZBA issued a written decision affirm ing the

Delta is no longer part of the student residential life system.” “dialer system.” (Quotation omitted.) In addition, the let ter stated that “Alpha con nection to the T own’s police and fire departments through the College’s including Internet service provided by the College and the property’s fire alarm s afety and s ecurity. Other services w ere in the process of being terminated, safety checks or walk - throughs of the property” by the College’s d epartment of safety and student welfare have already been terminated,” including “routine College servic es to [the property] that could be terminated consistent with other Hanover property owner.” The letter further explained that “[a]ll. . . relationship to [Alpha Delta] . . . is no different from its relationship to any no longer has any official status relative to Dartmouth College and the College’s explaining that “[a]s a result of its derecognition, the Alpha Delta organization the ZBA. Prior to the hearing, t he College submitted a letter to the ZBA On April 29, Alpha Delta appealed the zoning administrator’s decision to

immediately.” continued occupancy of the property [by at least 18 individuals] must cease Accordingly, the zoning administrator informed Alpha Delta that “[t]he

zoning ordinance. use of the property as a residence is therefore a violation of the operated in conjunction with an inst itutional use. The continued been derecognized by Dartmouth College, the facility is no longer conjunction with another institutional use. . . . Because it has residences in the “I” Institution zoning district be operated in The Adopted Zoning Ordinance requires that student

stated: Alpha Delta’s use of the property viola t ed the zoning ordinance. The letter letter of its d ecision that, because the College had derecognized Alpha Delta, On Apr il 2 p. 3 3, the T own’s zoning administrator notified Alpha Delta by

three unrelated people will be allowed to reside on the property.” College ’ s “understanding that under the Town zoning ordinance no more than Delta no longer has a rela tionship with Dartmouth College” and that it was the differently.” The College stated that it would “no tify the [T own] that Alpha a student organization. . ., the [T own] zoning requirements are likely to apply that “[a]s the Alpha Delta chapter will no longer be recognized by the College as protection of the College’s department of safety and security. The letter stated through the College, and would no longer be under the jurisdiction or p. 4 4

overseen to some degree by that other institution (in this case by institutional use’ will potentially have their health and safety ‘ student residence ’ which is ‘ operated in conjunction with another enacting the Zoning Ordinance, to consider that students in a [i]t was rational and reasonable for the voters of Hanover, in

The ZBA reaso ned that the purpose of the requirement was to address health and safety concerns. institutional use’ certainly has to have some meaning,” the ZBA conclud ed that Thus, recognizing that “[t]he phrase ‘in conjunction with another

of residences may be occupied by [College] students.” dwelling unit — by contrast with a ‘Student Residence’ — even though bot h types disparate treatment of the number of unrelated persons living in a ‘family’ reaso ned that “fundamental health and safety concerns validly justify the than three unrelated persons. Given tho se different restrictions, t he ZBA “any number of students,” the “family” dwelling units are restricted to no more the C ollege.” Unlike the Institution district that allows a student residence for all, or primarily, [College] students, but where the property has no ties at all to other zoning districts allow “family” dwelling units “whose residents are also fraternity’s building are all students of the College. The ZBA considered that conjunction with” require ment was met as long as the residents in the In addition, the ZBA rejected Alpha Delta’s argument that the “in

nonconforming.” Delta did not sustain “its burden of showing that its property is lawfully with ’ [the] College, prior to the adoption of that zoning requirement,” Alpha that the fraternity ever operated in a manner which was not ‘in conjunction The ZBA concluded that, because Alpha Delta “failed to present any evidence

must be “operated in conjunction with another institutional use.” namely the requirement t hat a student residence in the “I” district requirement which unarguably is contained in the Ordinance – of its property continues to meet a voter - approved Town determine whether or not those facts show that [Alpha Delta’s] use particular instance of the Colle ge’s action of ‘de - recognition’ to she (and this Board) have considered the facts surrounding this ‘recognition’ standards as part of the Zoning Ordinance. Rather T he Zoning Administrator did not adopt a private institution’s

stated: the nature of the Zoning Administrat or’s finding of a violation.” T he ZBA was adopted. The ZBA explained that Alpha Delta’s argument “misconstrues and nature of recognition by the College had varied before the zoning ordinance be considered “grandfather ed” from such a requirement because the existence p. 5 5

and safety oversight by the College.” The trial court found that there “is more the proper relationship to, or association with, the College,” including “health purpose of the requirement “was to ensure that a student residence maintain of the zoning ordinance as a whole, the court agreed with the ZBA that the “conjunction” and interpreting the phrase “in conjunction with” in the context institutional use” requirement. Considering the plain meani ng of the word alumni,’” the ZBA erred in its interpretation of the “in conjunction with another to the Corporation and participate in operating the property are [College] students currently attending [the] Colle ge, and the only people who can belong “‘the only people who reside at [the property] are and have been [College] T he trial court also disagreed with Alpha Delta’s assertion that because

erroneous nor unreasonable.” (Quotation omitted.) requirement,” the trial court upheld the ZBA’s decision as “n either legally was not ‘in conjunction with’ [the] College, prior to the adoption of that zoning to present any evidence that the fraternity ever operated in a manner which C onclud ing that the record supported the ZB A’s finding that Alpha Delta “failed

with” requirement was adopted. with another institutional use” at the time the “in conjunction operated [the property] in a manner that was not “in conjunction with” requirem ent, Alpha Delta, therefore, needed to show that it order to prove that it was grandfathered from the “in conjunction conjunction with another institutional use” is grandfathered. In whether its use of the property in a manner that is not “in house [College] students is grandfathered. Rather, the issue is [t]he issue is not. . . whether Alpha Delta’s use of the property to

reasoned th at continuously since prior to the enactment of the Ordinance.” The trial court ... simply because it has used [the property] as a student residence from the ‘operated in conjunction with another institutional use’ requirement decision. The court rejected Alpha Delta’s assertion “that it is grandfathered the superior court. Following a hearing, the trial court affirmed the ZBA’s After t he ZBA deni ed its request for rehearing, Alpha Delta appealed to

the property as a student residence violated the zoning ordinance. longer “operated in conjunction with another institutional use” and its use of security. Accordingly, the ZBA concluded that Alpha Delta’s property was no “under the jurisdiction or protection” of the College’s department of safety and longer recognized as a College - approved residential facility and was no longer health and safety oversight by the College, including that Alpha Delta was no T he ZBA found that, as a result of derecognition, Alpha Delta had lost all

from that same protection. Dartmouth), whereas students residing elsewhere do not benefit p. 6 6

their uses were lawful prior to the enactment of a zoning ordinance or so that property owners may continue using and enjoying their property when protect property owners from a retrospective application of zoning ordinances, brackets omitted)). “The right to maintain nonconforming uses is meant to property that existed at the time the ordinance was enacted” (quotation and (explaining that “a zoning ordinance does not apply to structures or uses of the 330 (2001); see also Hurley v. Town of Hollis, 143 N.H. 5 p. 6 67, 571 (1999) requirements of the ordinance. See Town of Salem v. Wickson, 146 N.H. 328, of a zoning ordinance prohibiting such use, and t hat does not conform to the A nonconforming use is a lawful use existing since prior to the adoption

A. Nonconforming Uses

oversight by that other institution.” phra se “in conjunction with” to mean “the potential for health and safety defined in” the ordinance; and (2) affirming the ZBA’s interpretation of the matter of law is ‘grandfathered’ and not a ‘Student Residence’ as that term is Alpha Delta in violation of the zoning ordinance because its property, “as a On appeal, Alpha Delta argues that the trial court erre d by: (1) finding

Lone Pine Hunters’ Club, 149 N.H. at p. 6 670. whether there is evidence upon which they could have been reasonably based. determine whether it agrees with the zoning board’s findings, but to determine Club, 149 N.H. at 670; see RSA 677:6. The review by the trial court is not to findings are deemed prima facie lawful and reasonable. Lone Pine Hunters’ board made findings upon questions of fact properly before the court, those see Lone Pine Hunters’ Club, 149 N.H. at 669 - 70. To the extent the zoning probabilities, the decision was unlawful or unreasonable. RSA 677:6 (2016); adjustment, is limited to a determination of whether, on the balance of the For its part, the trial court, in reviewing the decision of a zoning board of

v. Town of Hollis, 149 N.H. p. 6 668, 669 (2003). is unsupported by the evidence or legally erroneous. Lone Pine Hunters’ Club unreasonable. Id. We will uphold the trial court’s de cision on appeal unless it adjustment’s decision has the burden to show that it is unlawful or 151 N.H. 795, 797 (2005). The party seeking to set aside a zoning board of Judicial review of zoning cases is limited. Greene v. Town of Deering,

I I. Analysis

This appeal followed. from the fact that the residents of [the property] are. . . College students.” any association or relationship with the College following derecognition apart derecognition. The court also found that Alpha Delta “offered no evidence of health and safety oversight by the College has been eliminated as a result of than sufficient evidence” to support the ZBA’s finding that the potential for p. 7 7

does not challenge th i s finding on appeal. Thus, when the amended zoning in 19 p. 7 76 when the “in conjunction with” requirement was enacted. Alpha Delta establish that it was operating in a manner not in conjunction with the College B oth the ZBA and the trial court found that Alpha Delta failed to

requir e ment. its property was lawful ly nonconforming with respect to the special exception Thus, in 19 p. 7 76, when the current ordinance was enacted, Alpha Delta’s use of as a student residence before the spe cial exception requirement was enacted. lawful without a special exception because Alpha Delta was using its property dispute, that Alpha Delta’s use of the property as a student residence was Both the ZBA and the trial court assumed, and the parties do not

institution having ownership interest in land in the district.” Institution district, a student residence “must relate to the uses of the student residence obtain a special exception. Third, as with all uses in the institutional use” in the same district. Second, the ordinance requires that a requires that a student residence operate “in conjunction with an other ordinance imposes three s eparate use requirements. First, the ordinance As applied to a student residence in the Institution district, the zoning

institutional use.” “that call for a Student Residence to operate in co njunction with another lawful non - conforming fraternity” not subject to the current zoning restrictions prohibiting the use.” Therefore, Alpha Delta asserts, it “uses its property as a that its use “legally existed pr ior to the adoption of a zoning provision obtained a Special Exception to operate as a Student Residence,” it has proven pre - existed all zoning ordinances and [Alpha Delta] has never sought or Alpha Delta argues that because its “use of its property as a fraternity

(1989). asserting that right. See Town of Wolfeboro v. Smith, 131 N.H. 449, 45 p. 7 7 at 664. The burden to prove a lawful nonconforming use is on the party and have continually existed since that time.” Vachon Management, 144 N.H. nonconforming use must lawfully exist at the time the res triction is adopted disturbed b y a subsequent land restriction”). “T o qualify for such protection, a and state statute “both recognize that an established use of land is not Management, 144 N.H. 660, 664 (2000) (stating that the State C onstitution v. Town of Pelham, 140 N.H. 139, 143 (1995); see Town of Sea brook v. Vachon A rticles 2 and 12 of the New Hampshire Constitution. Ray’s Stateline Market Nonconforming uses are protected by RSA 674:19 (2016) and by Part I,

created the nonconforming use. Wickson, 146 N.H. at 330 - 3 1. depends upon the facts existing at the time the change in the zoning ordinance Board, 130 N.H. 510, 516 (19 p. 8 88). The creation of a lawful nonconforming use amendment thereto.” New Lo ndon Land Use Assoc. v. New London Zoning 8

prior to the adoption of the requirement that a student resi dence obtain a zoning ordinance because, like Alpha Delta, it existed as a student residence property as a student residence was a lawful nonconforming use under the as applied to Alpha Delta. In Tri - Kap, the ZBA found that Tri - Kap ’s use of its The Tri - Kap decision supports our construction of the zoning ordinance

Kap decision is relevant to this case. that the ZBA is bound by the principle of stare decisis, we disagree that the Tri - Exception to operate as a ‘Student Residence.’” Assuming, without deciding, “only applies to those property owners who have been granted a Special Tri - Kap decision supports its position that the “in conjunction with” language this case. (Capitalizat ion and bolding omitted.) According to Alpha Delta, the exception,” the ZBA is bound by stare decisis to reach the same conclusion in as defined in [the ordinance] unless the landowner has obtained a special “ruled that a lawful non - conforming fraternity can never be a student residence fraternity (Tri - Kap), Alpha Delta argues that, b ecause the ZBA in that case C iting a 2014 zoning board decision regarding the Kappa Kappa Kappa

in conjunction with anot her institutional use. zoning requirement that a studen t residence in the Institution d istrict operate College’s derecogniti o n of the fraternity in 2015, continued to compl y with the is sue was whether Alpha Delta’s use as a student residence, following the nonconforming with respect to the special exception requirement. Rather, the residence nonconforming; it is undisputed that Alpha Delta is lawfully Alpha Delta’s lack of a special exception rendered its use as a student decision. T he issue before both the ZBA and the trial court was not whether In addition, t ho se arguments misconstrue the basis of the trial court’s

relieved of the requirement that a student residence obtain a special exception. above, Alpha Delta ’s use of its property was “grandfathered” in that it was obtain a special exception — are based upon a fa ulty assumption. As set forth Delta’s arguments — that in order to be a student residence it was required to student r esidence.” (Capitalization and bolding omitted.) However, Alpha because it “has never sought nor obtained a s pecial e xception to operate as a special exception” and, therefore, Alpha Delta’s use is lawfully nonconforming “comes into existence only via the ap plication for and actual issuance of a (Capitalization and bolding omitted.) According to Alpha Delta, such use residence as that term is defined in. . . the amended zoning ordinance.” that “as a matter of law, [its] property is ‘grandfathered’ and not a student students who are members of the fraternity, Alpha Delta, n onetheless, argues been, a student residence housing approximately 1 p. 8 8 - 22 College undergraduate Despite acknowledging t hat its use of the property is, and always has

in conjunction with the College. was conforming with respect to the requirement that the residence be operated ordinance was enacted, Alpha Delta’s use of its property as a student residence p. 9 9

student residence operate in conjunction with another institutional use. Alpha Delta’s us e of the property violat ed the T own’s zoning requirement that a 1 p. 9 976, it was not until the College derecognized the fraternity in 2015 that was lawfully operating a student residence “in conjunction with” the College in adoption of that z oning requirement.” (Emphasis added.) Because Alpha Delta a manner which was not ‘in conjunction with’ [the] College, prior to the Alpha Delta “failed to present any evidence that the fraternity ever operated in requirement was adopted.” The ZBA found, and the trial court affirmed, that conjunction with another institutional use’ at the time the ‘in conjunction with’ needed to show that it operated [the property] in a manner that was not ‘in grandfathered from the ‘in conjunction with’ requirement, Alpha Delta . . . at 51 5 - 16. As the trial court correctly stated, “I n order to prove that it was time of adoption of the ordinance. See New London Land Use Ass oc., 130 N.H. A lawful nonconforming use is a use in fact existing on the land at t he

preexisting nonconforming uses. the ZBA ’s finding and its interpretation of the legal principles applicable to Colleg e prior to 1 p. 9 931.” We disagree with both Alpha Delta’s characterization of did not present evidence that it had not operated ‘in conjunction with’ the grandfathering rights it had possessed since the 1920 s, because [Alpha Delta] stricter post - 1980’s regulatory regime, [Alpha Delta] in effect waived all of the ZBA, affirmed by the trial court, suggested that by ‘opting into’ the College’s College.” (Capitalization and bolding omitted.) Alpha Delta argues that “[t]he nonconforming use simply by any voluntary association with Dartmouth Finally, Alpha Delta contends that it did not “waive its rights as a lawful,

Holdings, 155 N.H. 4 p. 9 91, 499 (2007). does not prohibit enforcement in the present.” See Anderson v. Motorsports “[t]he mere fact that a Town may have been lax in its enforcement in the past enforcement by the T own of its zoning ordinance, we agree with the ZBA that that Alpha Delta is arguing that these zoning decisions are proof of selective language and, therefore, are not relevant to the issue before us. To the extent of its Property.” N one of those decisions address the “in conjunction with” a Student R esidence in conjunction with the College to allow the continued use from determining that the zoning ordina nce requires that Alpha Delta “operate by Alpha Delta in support of its argument that the ZBA should be “estopped” W e are likewise not persuaded by the other zoning board decisions cited

conjunction with” requirement. reside nce under the zoning ordinance a nd th ereby become subject to the “in special exception must be obtained in order for a fraternity to be a student assertions, t he Tri - Kap decision does not stand for the proposition that a footprint of its building and to expand its use. Contrary to Alpha Delta’s about whether Tri - Kap needed a variance or a special exception to expand the “in conjunction with” language in the ordinance. Rather, the decision was special exception. Moreover, the issue in Tri - Kap had nothing to do with the p. 10 10

nor legally erroneous. Accordingly, we affirm the trial court’s determination hold that the trial court’s decision was neither unsupported by the evidence Based upon our review of the relevant law a nd the record before us, we

longer “operating in conjunction with” the College. organization, Alpha Delta has no association with the College and thus is no that upon the College’s revocation of its recognition of Alpha Delta as a student agree that the record supports the trial court’s affirmance of the ZBA’s finding of any association or relationship with the College following derecognition.” We the ZBA’s determination, and concluded that “Alpha Delta offered no evidence other Hanover property owner.’” (Brackets omitted.) The trial court affirmed relationship to [Alpha Delta] . . . is now no different from its relationship to any evidence contradictin g the College Counsel’s statement that ‘the College’s The ZBA found that “in fact, [Alpha Delta] has failed to present any

combination with the College. word “conjunction,” Alpha Delta must have some union, association or 480 (unabridged ed. 2002). Thus, u nder the unambiguous meaning of the ASSOCIATION, COMBINATION.” Webster’s Third New International Dictionary defined as “the act of conjoining or state of being conjoined: UNION, Appeal of Town of Nottingham, 153 N.H. 539, 553 (2006). “Conjunction” is and, therefore, we ascribe to the words their plain and ordi nary meaning. See The phrase “in conjunction with” is not de fined in the zoning ordinance

N.H. 715, 719 (2007) (quotation omitted). not by construing isolated words or phrases.” Feins v. Town of Wilmot, 154 meaning of a zoning ordinance is determined “from its construction as a who le, have intended, or add words that they did not see fit to include.” Id. The 495. “Moreover, we will not guess what the drafters of the ordinance might beyond the ordinance itself for further indications of l egislative intent.” Id. at the language of an ordinance is plain and unambiguous, we need not look to the common and approved usage of the language.” Id. at 494 - 95. “When review, the words and phrases of an ordinance should be construed according “Because the traditional rules of statutory construction generally govern our question of law, which we review de novo. Anderson, 155 N.H. at 494. We observe, however, that t he interpretation of a zoning ordinance is a

Delta] was in violation of the Ordinance.” (Quotation omitted.) meaning of the words “in conjunction with” “in order to justify that [Alpha arbitrary and capricious.” Alpha Delta asserts that the ZBA “discovered” the erroneous, contrary to the plain language of the ordinance, . . . and [is] that other institution’ is unconstitutionally vague, speculative, legally conjunction with’ means . . . ‘the potential for health and safety oversight by Alpha Delta next argues that the ZBA’s “interpretation that the phrase ‘in

B. In Conjunction With Another Institutional Use p. 11 11

HICKS, CONBOY, and LYNN, JJ., concurre d.

See Vogel v. Vogel, 137 N.H. 321, 322 (1993). additional arguments, we conclude that they warrant no further discussion. T own’s zoning ordinance. To the extent that Alpha Delta’s brief raises that the use of Alpha Delta’s property as a studen t residence violates t he