New Hampshire Municipal Association
New Hampshire Municipal Association

Court Update

Condition of Approval ‘Reasonably Related’ to Purpose of Site Review Regulation

Summa Humma v. Tilton
No. 2003-398, 5/24/2004

In this case a heavy equipment sales company came before the Tilton Planning Board with an application for site plan review. As a part of the plan, the company proposed to erect a 90-foot flagpole to fly a 960 square-foot American flag. The board approved the plan on the condition that the height of the flag pole be restricted to 50 feet, which is the maximum building height allowed by the zoning ordinance. The applicant appealed the board’s decision with respect to the height of the flagpole. The superior and the Supreme courts both upheld the planning board decision. The Supreme Court commented on the scope of the planning board’s authority when reviewing site plans and concluded, “Where the role of site plan review is to ensure that uses permitted by the zoning ordinance are appropriately designed and developed, restricting the board’s authority to the specific limitations imposed by ordinances and statutes would render the site plan review process a mechanical exercise. The planning board properly exercised its authority to impose conditions that are reasonably related to the purposes set forth in the site plan regulations; namely, the ‘safe and attractive development’ of the site.”

This decision clearly supports the exercise of reasonable discretion by planning boards. However, it should be noted that dissenting Justice Nadeau questioned whether the board had given adequate opportunity for the applicant to explain and justify why it should be entitled to erect the taller pole and large flag. As a matter of policy, although not necessarily a matter of law, boards may be well advised to work with applicants to assure that they have had adequate opportunity to respond to board requests for additional information prior to the issuance of a decision.

Please be advised that the foregoing case summary is based upon a Supreme Court slip opinion. Slip opinions are subject to change following motions for rehearing and/or motions for reconsideration. The Court may also modify the opinion without motion. The final version of the Court’s opinion is that which appears in the New Hampshire Reports.

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