Summa Humma Enters., LLC v. Town of Tilton

• Decision Date: 24 May 2004
• Docket Number: No. 2003–398.,2003–398.
• Citation: 151 N.H. 75,849 A.2d 146
• Court: New Hampshire Supreme Court
• Parties: SUMMA HUMMA ENTERPRISES, LLC d/b/a MB Tractor v. TOWN OF TILTON and another.

151 N.H. 75

849 A.2d 146

SUMMA HUMMA ENTERPRISES, LLC d/b/a MB Tractor

v.TOWN OF TILTON and another.

No. 2003–398.

Supreme Court of New Hampshire.

Argued: March 11, 2004.

Opinion Issued: May 24, 2004.

McLane, Graf, Raulerson & Middleton, P.A., of Manchester (Scott H. Harris on the brief and orally), for the plaintiff.

Barto and Puffer, P.A., of Concord (Mark H. Puffer on the brief and orally), for the defendants.

DUGGAN, J.

The plaintiff, Summa Humma Enterprises, LLC d/b/a MB Tractor, appeals an order of the Superior Court (Smukler , J.) upholding the denial of its application to amend its site plan by the defendants, Town of Tilton and Town of Tilton Planning Board (board). We affirm.

The following facts were found by the trial court or are evident from the record. The plaintiff is a commercial business engaged in heavy equipment sales and service. The business is located approximately one-half mile west of the intersection of Interstate 93 and Route 3 in a commercial zoning district in Tilton. The plaintiff, seeking to install a ninety-foot flagpole to fly a 960 square-foot American flag, filed an application to amend its site plan with the board.

At a December 3, 2002 public hearing, the board reviewed the plaintiff's application. The board's regulations set forth the purposes served by site plan review, which govern the board's review of site plans. The purposes are:

a. To provide for the safe and attractive development ... of the site and to guard against such conditions as would involve danger or injury to health, safety, or prosperity by reason of:

...

(3) Undesirable and preventable elements of pollution such as noise ...

.... b. To provide for the harmonious and aesthetically pleasing development of the municipality and its environs; [and]

....

h. To include such provisions as will tend to create conditions favorable for health, safety, convenience and prosperity.

Based on these regulations, the board noted the following concerns with the plaintiff's site plan: (1) the required lighting of the flag at night; (2) a ninety-foot flagpole would exceed the zoning ordinance's height limitations on buildings; (3) the noise associated with the flag in windy conditions; (4) the safety concerns from ice falling or the pole itself falling; and (5) improper use of the flag for advertising.

The board directed several questions to the plaintiff's representatives, Chris Rice and Jason Kahn. Mr. Rice was unable to answer the board's questions about the size of the pole, the effect on the neighborhood of the required lighting and the potential noise.

In answering why a ninety-foot flagpole was required, Mr. Kahn first stated the purpose was to draw awareness to the flag. The board's minutes also reflect that "Mr. Kahn stated [the plaintiff] was trying to develop a brand presence. [The plaintiff] was trying to develop this brand as one identity and a 90 foot flag was one of his identities." In addressing the safety and noise concerns, Mr. Kahn stated that the manufacturer could provide information about the noise generated by flags flying in the wind and that the flagpole would be "fully engineered." He also stated that ice would not adhere to the flag and that the pole was tapered.

The board approved the proposal conditioned on a height restriction of fifty feet, the same height restriction in the town's zoning ordinance for buildings. The board imposed the height restriction based upon concerns about safety, noise and aesthetics.

The plaintiff appealed the board's decision to the superior court. Following a hearing, the trial court noted that the plaintiff's first representative was unable to answer the board's questions and that the second representative, while able to answer some of the board's questions, was unable to offer documentation to support his answers and offered contradictory information regarding the purpose of the flag. Thus, the trial court found that the board "reasonably determined that the [plaintiff] failed to sustain its burden of addressing its concerns about safety, noise, and the effect on the area aesthetics of lighting [the flag and flagpole.]" Accordingly, the trial court concluded that the plaintiff "failed to sustain its burden of showing that the board's decision was unreasonable or unlawful."

On appeal, the plaintiff argues that the trial court erred because it: (1) upheld the board's decision, which was "unreasonable and unlawful"; and (2) declined to consider an affidavit that was not submitted to the board. We address each argument in turn.

The plaintiff first argues that the superior court erred in upholding the board's decision because there is no ordinance that precludes the installation of a ninety-foot flagpole. The plaintiff points to the zoning ordinance's specific height limitation for buildings to argue that the lack of a controlling statute or ordinance regulating the height of flagpoles precludes the board from denying the application to amend the site plan. We disagree.

Site plan review is designed to insure that uses permitted by a zoning ordinance are "constructed on a site in such a way that they fit into the area in which they are being constructed without causing drainage, traffic, or lighting problems." 15 P. Loughlin, New Hampshire Practice, Land Use Planning and Zoning § 30.01, at 425 (2000). Site plan review is also "designed to assure that sites will be developed in a safe and attractive manner and in a way that will not involve danger or injury to the health, safety, or prosperity of abutting property owners or the general public." Id. § 30.02, at 427. These purposes are "accomplished by subjecting the plan to the very expertise expected of a planning board in cases where it would not be feasible to set forth in the ordinance a set of specific requirements upon which a building inspector could readily grant or refuse a permit." Id.

Site plan review, however, is limited. It "does not give the planning board the authority to deny a particular use simply because it does not feel that the proposed use is an appropriate use of the land. Whether the use is appropriate is a zoning question." Id. § 30.09, at 437. Nevertheless, the board has authority under site plan review to impose requirements and conditions that are reasonably related to land use goals and considerations within its purview. See Nestor v. Town of Meredith, 138 N.H. 632, 635, 644 A.2d 548 (1994) ; Loughlin, supra § 30.09, at 438 (noting that the board "can and must condition approval upon installation of landscaping, curbing, and drainage facilities or other items which will make the proposed building fit into the area").

Here, the board approved the plaintiff's proposed flagpole with a fifty-foot height restriction. The board did not prohibit the plaintiff from using the property in a manner allowed by the zoning ordinance. Rather, it cited concerns with the safety, noise and aesthetics of the flagpole and conditioned the plaintiff's authorized use of the property to ensure that it was "developed in a safe and attractive manner" and would not involve "danger or injury to the health, safety, or prosperity of abutting property owners or the general public." Loughlin, supra § 30.02, at 427. 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. Therefore, the superior court did not err in upholding the board's decision.

The plaintiff next argues that the superior court erred in upholding the board's decision because the board had no evidence regarding the potential noise created by the flag or the existence of safety concerns from the flagpole falling over or ice falling from it. We disagree.

Superior court review of decisions of planning boards is limited. Bayson Properties v. City of Lebanon, 150 N.H. 167, 170, 834 A.2d 202 (2003). The superior court is obligated to treat the factual findings of the planning board as prima facie lawful and reasonable and cannot set aside its decision absent unreasonableness or an identified error of law. Id. The appealing party bears the burden of persuading the trial court that, by the balance of probabilities, the board's decision was unreasonable. Id. at 169, 834 A.2d 202. The review by the superior court is not to determine whether it agrees with the planning board's findings, but to determine whether there is evidence upon which they could have been reasonably based. Lone Pine Hunters' Club v. Town of Hollis, 149 N.H. 668, 670, 826 A.2d 582 (2003). Where, however, the applicant for site plan review does not provide sufficient information upon which the board can apply the site plan regulations, it is proper for the board to deny the site plan application. See 5 A.H. Rathkopf & D.A. Rathkopf, Rathkopf's The Law of Zoning and Planning § 87:10, at 87–18 to 87–19 (2003).

Our review of the superior court's decision is equally deferential. See Lone Pine Hunters' Club, 149 N.H. at 669, 826 A.2d 582. We will uphold the decision on appeal unless it is unsupported by the evidence or legally erroneous. Id.

Here, the superior court noted that the inquiry is "whether the [plaintiff] presented sufficient evidence to the board to sustain its burden and, if so, whether that evidence was...