Hanover
The residents, who opposed the 70,000-square-foot facility on the grounds that its size would have marred the character of their neighborhood, also have raised concerns about access to public records in light of an incident at Town Hall.
Dartmouth filed an appeal to the Planning Board’s decision in Grafton Superior Court on Jan. 9. The college argues that the board, among other errors, improperly used the town’s Master Plan, a document that college attorneys contend does not carry the legal weight of a regulation, as a basis for denial.
“Reliance on the 2003 Master Plan to deny the Petitioner’s application is illegal and unreasonable,” Dartmouth’s lawyers said in the appeal. “The New Hampshire Supreme Court has been clear that a Master Plan cannot be used as a basis to deny subdivision or site plan approval.”
Dartmouth’s court filing cites a “Notice of Action” from the Planning Board, which, as the official notice of a permit decision, cites three reasons for denial: nonconformance with the Master Plan and with two sections of site plan regulations.
Neighbors to the proposed facility, however, contend that the Master Plan was never part of the board’s reasoning, and that Chairwoman Judith Esmay, who was the sole board member to vote in favor of granting the permit, misrepresented the board’s decision making when she signed the notice of action.
“It would appear that, just as I feared, the distortions formalized by Judith Esmay in the Notice of Action had the consequence of encouraging Dartmouth’s resolve and strengthening Dartmouth’s case against the town,” Tyler Road resident Jeff Doyle said in an email.
Neighbors now have asked the town to amend the notice of action.
In a phone interview Monday, Esmay declined to comment on any aspect of the case, including on the notice of action or the board’s response to the request to amend it.
“I cannot discuss this matter in any manner, now that it has been appealed,” she said, directing questions to town staff.
Planning and Zoning Director Rob Houseman on Monday said that the Planning Board and town staff had declined the request to amend the notice of action. Instead, he said, a certified transcript of the Dec. 13 meeting where the board rejected the facility will be submitted to court.
Houseman said he and other planning and zoning staff members drafted the notice of action based on their personal notes from the Dec. 13 meeting. Minutes for that meeting, which usually are compiled from an audiotape of the gathering, were not yet available when the notice was drafted, he said.
Houseman declined to comment on whether he still believed the Master Plan should have been included among the reasons for the denial.
Residents said they ran into trouble obtaining records from the town as they attempted to build their case to have the notice of action amended. In an affidavit signed by a notary public, Tyler Road resident Nina Lloyd said on Jan. 9 that she initially was denied access to an audio recording of the Dec. 13 meeting by Houseman when she requested a copy at his office a few days after the decision.
Houseman told Lloyd the recording was unavailable because the town was not obligated to hold onto it after minutes were transcribed from it, the affidavit said. Once she returned with a copy of New Hampshire’s open records law, Houseman told her the recording was in the trash, according to the affidavit.
Town officials ultimately searched their recycling bin, found that the recording was still there and made a copy for Lloyd, Houseman said in a separate interview.
Lloyd said she concluded from this interaction that Houseman “did not want me to have a copy of the tape recording” and “authorized placement of the original tape recording in the office trash between 10:00 a.m. (when … I first requested the tape) and 11:35 a.m.,” when she returned to make another request.
Houseman on Monday declined to respond to the specifics of Lloyd’s account, other than to say that his office was “not trying to hide anything; we made everything available to her.”
“I still am in possession of that tape, at the request of Ms. Lloyd,” he said. “ … There was not malicious intent. We simply had adopted a new policy, and were carrying out that policy.”
Houseman and Town Manager Julia Griffin said the Planning and Zoning Department had adopted a new records retention policy that calls for audio tapes of meetings to be disposed of after boards approve minutes. The change, the town officials said, was meant to cut down on clutter as part of a transition to an electronic system, and might become townwide policy.
“That effort began this fall and its timing has nothing to do with the (athletic facility) case and the Planning Board’s decision,” Griffin said in an email Monday.
In its notice of action, the Planning Board cited two other reasons to deny Dartmouth’s application: that the facility proposal “negatively impacts the abutters, neighborhood and others, town services and fiscal health” and that it “does not relate to the harmonious and aesthetically pleasing development of the town and its environs.”
Both of those considerations come from state site plan review regulations. Dartmouth’s attorneys worked to counter them in their appeal letter, arguing that the college had presented ample evidence that the facility would not have an adverse effect on the surrounding neighborhood — evidence that, during the board’s review process, the neighbors have disputed.
Rob Wolfe can be reached at rwolfe@vnews.com or at 603-727-3242.