Agenda - Planning Commission - 07/09/2009

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~~..:F-=:"~~""::';;;"':;:~ ~.... it ) .'\ a, ) 1 I I I 1 i Zoning Bulletin May 25,20091 Volume 31 No. 10 foot undisturbed buffer from wetlands and a 200 foot undisturbed buf- fer from vernal pools. Continental applied for a special exception from the town to build the proposed road. In support of its application, it presented the opinions of two experts-a certified wetland scientist and a field biologist. Both ex- perts tailored their analysis to the site at issue. One opined that the ver- nal pool would not be impacted by the proposed road. The other opined that it was unlikely the proposed road would have any measurable ad- verse impact to the amphibian habitat provided by that wetland system. Despite the expert testimony, the town's zoning board of adjustment ("ZBA") denied Continental's request for a special exception. In doing . so, the ZBA. relied on an Audubon Society conservation fact sheet, which suggested conservation measures for vernal pools. The ZBA noted that fact sheet stated that a 100 foot buffer would help protect the water quality of a vernal pool, but would not be sufficient to protect amphib- ians living around the pool. The ZBA concluded that the road would not satisfy the Ordinance's purposes of protecting unique areas, wildlife hab- itats and potential water supplies. It said that "having a road within 60 ft of the [vernal] pool [wa]s NOT protecting the vernal pool or the travel' pathways [for wildlife] leading to it." Continental eventually appealed the denial to the superior court. The court vacated the ZBA's decision. It found the ZBA's denial was unreasonable: It noted that Continental had presented evidence from two scientific experts that was tailored to the site at issue, while the ZBA had based its decision on an Audubon fact sheet that provided only general information. The town appealed. DECISION: Affirmed. t ) ~.../ On appeal, the Supreme Court of New Hampshire held that the ZBA's denial of Continental's requested special exception was unreasonable. In reaching its conclusion, the court found that the evidence did not support the ZBA's decision. The court acknowledged that the ZBA was "entitled to rely in part on its own judgment and experience" in reaching its decision. However, the court cautioned that although the ZBA could rely on its personal knowledge of certain factors, its decision had to be based on more than the mere personal opinion of its members. Here, the Audubon fact sheet could not be "transformed into 'personal knowl- edge' through individual ZBA members using such information to 'edu- cate themselves.''' Rather, that fact sheet was simply evidence before the . ZBA. The factors of water quality and safety of amphibians that were. discussed generally in the conservation fact sheet, and used by the ZBA to deny the special exception, were specifically addressed by Continen- @2009 Thomson Reuters 3 43