Recent New Hampshire Supreme Court Case Places Limits on Planning Boards’ Site Review Authority

In Trustees of Dartmouth College v. Town of Hanover, _____ N.H. _____ (2018), decided November 6, 2018, the New Hampshire Supreme Court reversed the decision of the trial court, which had upheld the Hanover Planning Board’s decision denying Dartmouth College’s proposed construction of a new Indoor Practice Facility (“IPF”). Dartmouth sought approval for a 69,860 square foot IPF within the College’s existing athletic complex located in Hanover’s Institutional Zoning District (in which athletic facilities were an allowed use). The Planning Board, in a 4-1 decision, denied the site plan application on the grounds that it: (1) did not conform with the Hanover Master Plan; (2) negatively impacted abutters, the neighborhood, and others; and (3) did not promote the harmonious and aesthetically pleasing development of the town. The trial court upheld the Planning Board’s decision, finding that it was not unreasonable or unlawful.

The Supreme Court, however, overturned the Superior Court’s decision, finding that a reasonable person could not have reached the same decision based on the evidence before the Planning Board. The Supreme Court held that the Planning Board members had improperly denied the College’s site plan application based upon ad hoc reasoning characterized by conclusory statements and personal feelings unsupported by the evidence.

The case provides a number of issues for planning board members to consider when they are reviewing a site plan application, including the following:

1. Though a planning board is entitled to rely in part on its members’ own judgment and experience when acting upon a site plan application, the decision cannot be based solely upon personal opinions or “vague concerns” of its members.
2. Although on appeal a planning board’s factual findings are considered prima facie lawful and unreasonable, personal opinions and vague concerns are not factfinding entitled to deference.
3. A planning board cannot deny a proposed use simply because its members do not feel that the use is appropriate, where the use is allowed in the applicable zoning district.
4. A planning board cannot deny an application based upon general concerns if specific standards in the zoning ordinance addressing those concerns have been met. (For example, the Hanover Planning Board had denied the proposed IPF on the ground that it was too large and imposing, despite the building’s compliance with the zoning ordinance’s specific provisions relating to a structure’s height and size.)
5. If a use is permitted by the zoning ordinance, it cannot be barred by the site review process unless the use would create unusual public health, safety, or welfare concerns.

The case signals a subtle shift in the New Hampshire Supreme Court in favor of individual property rights (versus a planning board’s regulatory authority). This does not mean that a planning board cannot impose conditions that are reasonably designed to promote the public health, safety, or welfare. But where a proposed project meets the objective requirements of the zoning ordinance, a planning board must base a denial of that project upon specific facts showing a substantial risk of harm to the public health, safety, or welfare.