## Facts

- A commercial heavy-equipment business in Tilton, New Hampshire applied to amend its approved site plan to install a 90-foot flagpole flying a 960-square-foot American flag.
- Tilton’s site plan review regulations stated purposes that included safe and attractive development, avoidance of preventable pollution such as noise, and harmonious and aesthetically pleasing development.
- At a public hearing, the planning board raised concerns about: (1) required nighttime lighting, (2) height relative to the zoning ordinance’s building height limit, (3) wind-related noise, (4) safety risks (including ice fall and structural failure), and (5) potential advertising use.
- The applicant’s representatives could not adequately answer questions about the pole’s specifications, neighborhood impact of lighting, or potential noise; the board also received inconsistent explanations of the flag’s purpose (including “brand presence”).
- The board approved the amendment on the condition that the flagpole be limited to 50 feet, using the zoning ordinance’s 50-foot building height limit as a benchmark, citing safety, noise, and aesthetics.
- The applicant appealed; the superior court affirmed, finding the applicant failed to provide sufficient information to address the board’s concerns.
- The applicant appealed again, challenging the board’s authority, the evidentiary support for the condition, and the superior court’s refusal to consider new evidence not presented to the board.

## Issues

1. Whether a planning board may impose a height restriction as a condition of site plan approval for a structure not expressly regulated by the zoning ordinance, when the condition is tied to site plan purposes (safety, noise, aesthetics).
2. Whether the 50-foot condition was unlawful or unreasonable due to asserted lack of record evidence supporting safety and noise concerns.
3. Whether the superior court erred or abused its discretion by declining to consider additional evidence not presented to the planning board.

## Decision

- The New Hampshire Supreme Court affirmed the superior court’s judgment.
- The planning board acted within its site plan review authority in imposing a 50-foot height condition based on safety, noise, and aesthetics.
- The condition was not unlawful or unreasonable where the board’s concerns fell within the site plan regulations’ purposes and the applicant failed to supply adequate information to address them.
- The superior court did not abuse its discretion in refusing to accept additional evidence beyond the administrative record.

## Legal Principles

- A planning board may impose reasonable conditions on site plan approval that are related to the stated purposes of the site plan regulations, including safety, noise control, and aesthetics.
- Site plan review authority may extend beyond matters expressly addressed in the zoning ordinance when conditions are grounded in the site plan regulations’ purposes and are reasonable.
- An applicant bears the burden to provide sufficient information for the board to evaluate potential impacts; failure to do so can justify restrictive conditions.
- Courts uphold local land-use determinations unless they are unlawful or unreasonable, and they do not reweigh evidence where the record supports the board’s decision.
- Whether to take additional evidence on appeal from a planning board decision is generally within the superior court’s discretion.

## Conclusion

The court upheld a planning board’s conditional approval limiting a proposed flagpole to 50 feet, holding that site plan review allowed reasonable, purpose-based conditions addressing safety, noise, and aesthetics, and that the applicant’s failure to substantiate responses to the board’s concerns supported the condition and foreclosed reliance on new evidence offered only on appeal.


Summa Humma Enters., LLC v. Town of Tilton, 151 N.H. 75, 849 A.2d 146 (N.H. 2004)