Civil Law

Natalie Laflamme
Associate at Sulloway & Hollis in Concord practicing civil litigation
Copyright 2017 Robert C Strong II

No. 2017-0595
Nov. 6, 2018
Reversed and remanded

  • Whether the trial court’s order upholding a planning board’s decision to deny a site plan application, which complied with all relevant zoning regulations, was unreasonable and legally erroneous


The plaintiff, the Trustees of Dartmouth College, appealed a Superior Court order upholding a planning board decision to deny the plaintiff’s application for site plan approval to build an indoor practice facility within its existing athletic complex, located in Hanover’s Institutional Zoning District (I-District).

The I-District was created for the college to allow educational and recreational facilities and other large buildings, but is subject to height and setback requirements. The proposed site abuts a neighborhood in Hanover’s Single Residence zoning district (SR-District). Abutting residents strongly opposed the new building. Throughout 2016, the board held at least 16 meetings and made two site visits. Dartmouth also revised its site plan application several times to address the board’s concerns, even going so far as to present an animated shadow study to allay abutters’ concerns about the building blocking sunlight. Prior to final deliberations, the board staff prepared a memorandum recommending approval of the application with 21 conditions, to which Dartmouth agreed in full.

The board voted to deny the application, finding that the building did not conform with the Hanover Master Plan, negatively impacted the abutters and neighborhood, and did not relate to harmonious and aesthetically pleasing development. The trial court upheld the board’s decision, concluding that it was lawful and reasonably based upon the concern that the facility would block sunlight.

While Dartmouth raised several arguments on appeal, the Court specifically addressed whether the trial court’s decision was unreasonable and legally erroneous because it relied upon factual claims and a rationale that were not supported by the evidence or the board’s deliberations, and upheld a planning board decision that was based on ad hoc decision-making and personal feelings.

The Court held that the record did not support the trial court’s findings as it did not show that the board rejected the plan due to concerns about sunlight. Even if the board’s deliberations did reflect such a concern, the record would not support that the facility would actually cause lack of sunlight, especially given Dartmouth’s shadow study and the shadows already caused by the neighborhood’s trees.

The Court further held that the trial court erred in upholding the finding that the facility lacked conformity or was not harmonious with the neighborhood. That was unreasonable because the neighborhood containing the athletic complex, the I-District, already included two similar athletic facilities. The height and setback requirements around the I-District addressed any concern about harmony between it and the abutting zone.

The Court held that the record of the board’s deliberative session demonstrated that the board unreasonably relied upon personal feelings and ad hoc decision-making in denying the application. Although the Court recognized that a planning board’s factual findings are considered prima facie lawful and reasonable, it found that the planning board’s deliberations could not logically be considered fact-finding, as its reasoning was unsupported by the evidence or the applicable regulations. In fact, the record failed to reveal any objective evidence supporting the trial court’s decision. Thus, the Court could not conclude that the evidence reasonably supported upholding the board’s denial of the application. The Court cautioned that a board cannot rely solely upon general considerations to override a site plan’s conformity with regulations and ordinances, without sufficient evidentiary support.

The Court held that further deliberations or fact-finding were unnecessary to determine whether the application was lawful or reasonable, and could potentially lead to retribution by the town. Therefore, it granted Dartmouth its builder’s remedy, provided it complied with all 21 conditions identified by Hanover’s planning board staff.


Bruce W. Felmly and Wilbur A. Glahn, McLane Middleton, Manchester, and William C. Chapman and Jeremy D. Eggleton, Orr & Reno, Concord, for the plaintiff. David W. Rayment and Mark S. Derby, Cleveland, Waters and Bass, Concord, for the intervenors.