Zoning / Land Use

Sam Harkinson Previously employed as an Assistant County Attorney, and as an insurance adjuster, now as an associate at Hoefle, Phoenix, Gormley & Roberts

Sam Harkinson
Previously employed as an Assistant County Attorney, and as an insurance adjuster, now as an associate at Hoefle, Phoenix, Gormley & Roberts

No. 2017-0634
March 26, 2019
Affirmed in part, Vacated in part, and Remanded

  • Whether a fraternal organization is allowed to operate with a residential purpose when it has no affiliation with a college or university, as required by local zoning regulations.

The SAE Trust (Petitioner) appeals an order out of the Superior Court affirming the findings of the Zoning Board of Adjustment (the “Board”) for the Town of Hanover (Respondent). On appeal, the Superior Court applied the holding of Dartmouth Corp. of Alpha Delta v. Town of Hanover, 169 N.H. 743 (2017), and sustained the order from the Board denying the requested relief of the Petitioner.

On appeal, the Petitioner argued that the zoning ordinance in question unlawfully delegated authority to the local college since it leaves up to the college whether to recognize a fraternity for any reason it desires and that fraternities, therefore, had to act in conjecture with the college. The Court found that this issue was not determined in the prior Alpha Delta and held that derecognition of a fraternity is only one factor to be considered by the Board, and that notwithstanding derecognition, a fraternity, such as the Petitioner, could continue to use its property as a residential facility. Next, the Petitioner argued that it need not associate with the college, but could also choose to try to show that it was an “association” under the local zoning ordinance, and, therefore, could exist separate from the necessity to be recognized by the college. The Court found that the Board had not considered these issues and remanded the case so that the Board could address them at a further hearing.

The Court rejected an argument made by the Petitioner that the Respondent had violated its rights to due process by notifying the college of its initial decision sustaining the Petitioner’s request to operate as a residential facility after its derecognition by the college. The Court found that the Board’s notification of the college was within the appropriate notification for abutters notice that comes with zoning cases.

 

Carolyn K. Cole, of Cole Associates Civil Law, PLLC on the brief and orally for the Plaintiff. Laura Spector-Morgan, of Mitchell Municipal Group, P.A. on the brief and orally for the Defendants. Howard Myers, of Myers Associates, LLC on the brief, Sean P. Callan, Patrick K. Hogan, of Manley Burke, LPA on the brief as Amici Curiae.