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NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Reporter, Supreme Court of New Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any editorial errors in order that corrections may be made before the opinion goes to press. Errors may be reported by E-mail at the following address: reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 a.m. on the morning of their release. The direct address of the court's home page is: http://www.courts.state.nh.us/supreme. THE SUPREME COURT OF NEW HAMPSHIRE ___________________________ Hillsborough-southern judicial district No. 2008-370 CONTINENTAL PAVING, INC. & a. v. TOWN OF LITCHFIELD Argued: February 18, 2009 Opinion Issued: April 9, 2009 Hage & Hodes, P.A., of Manchester (David E. LeFevre on the brief and orally), for the appellant. Gottesman & Hollis P.A., of Nashua (Morgan A. Hollis on the brief and orally), for the appellees. HICKS, J. The appellant, Town of Litchfield (Town), appeals an order of the Superior Court (Groff, J.), adopting an order of the Judicial Referee (Perkins, J.), vacating a decision of the Town's zoning board of adjustment (ZBA) that had denied a special exception to the appellees, Continental Paving, Inc. (Continental) and New England Power Company (NEPC). We affirm. The trial court found, or the record supports, the following facts. Continental sought a special exception to build a gravel road over land owned by NEPC in order to access a parcel in Londonderry owned by the Londonderry

Fish and Game Club. The road would be located in the Wetlands Conservation District (WCD) as delineated in section 1204.00 of the Town of Litchfield Zoning Ordinance (LZO). The proposed road would cross a wetland and would come within sixty-seven feet of a vernal pool. After a hearing, the ZBA denied the special exception. The ZBA's minutes indicate concern by some board members about the road's proximity to the vernal pool. The ZBA held a rehearing and received a number of additional exhibits including a "Conservation Fact Sheet" promulgated by the New Hampshire Audubon Society. The ZBA again denied the special exception, referencing, among other things, a recommendation by the New Hampshire Audubon Society that a 100-foot buffer of natural vegetation be maintained around vernal pools. The ZBA denied a second rehearing and the appellees appealed to the superior court. See RSA 677:4 (2008). The trial court vacated the ZBA's decision and granted the request for special exception. Upon reconsideration, the court vacated its grant of a special exception but remanded the matter to the ZBA with instructions to grant the special exception. On appeal, the Town argues that the trial court erred: (1) in concluding that a determination of the relevant criteria for a special exception required specialized scientific knowledge; (2) in concluding that the ZBA was bound to accept the conclusions of Continental's experts when the record supports a finding that those experts lacked credibility; (3) in concluding that the ZBA could not use information about vernal pools in general to educate itself, evaluate the experts' opinions and come to its own conclusions; and (4) by acting as a "`super zoning board' and substitut[ing] its own judgment for that of the ZBA." The Town also argues that the ZBA's denial of the special exception was lawful and reasonable. Our standard of review is well-settled: We will uphold the trial court's decision unless the evidence does not support it or it is legally erroneous. For its part, the trial court must treat all factual findings of the ZBA as prima facie lawful and reasonable. RSA 677:6 [(2008)]. It may set aside a ZBA decision if it finds by the balance of probabilities, based on the evidence before it, that the ZBA's decision was unreasonable. Chester Rod & Gun Club v. Town of Chester, 152 N.H. 577, 580 (2005) (quotation, citation and brackets omitted). We first review the relevant provisions of the LZO and the ZBA's findings. Under section 1208.00(a), roads are permitted in the WCD by special exception. Litchfield, N.H., Zoning Ordinance

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New Hampshire Law