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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Grafton

No. 2017-0595

TRUSTEES OF DARTMOUTH COLLEGE

v.

TOWN OF HANOVER

Argued: June 27, 2018

Opinion Issued: November 6, 2018

McLane Middleton, P.A., of Manchester (Bruce W. Felmly and Wilbur A. 

Glahn on the brief, and Mr. Felmly orally), and Orr & Reno, P.A., of Concord

(William C. Chapman and Jeremy D. Eggleton on the brief), for the plaintiff.

Town of Hanover, filed no brief.

Cleveland, Waters and Bass, P.A., of Concord (David W. Rayment and

Mark S. Derby on the brief, and Mr. Rayment orally), for the intervenors.

DONOVAN, J. The plaintiff, the Trustees of Dartmouth College, appeals

an order of the Superior Court (Bornstein, J.) upholding the denial of its 

application for site plan approval by the Town of Hanover’s Planning Board for 

the construction of an Indoor Practice Facility (IPF). The planning board 
2

denied approval of the application upon finding that it failed to comply with 

three general considerations of Hanover’s site plan regulations. The trial court 

upheld the planning board’s decision following a hearing at which several 

Hanover residents owning properties abutting the proposed site intervened to

defend the board’s decision (abutters). We reverse and remand because the 

evidence does not reasonably support the trial court’s findings. The certified 

record confirms that the board based its denial of Dartmouth’s application 

upon subjective and personal feelings and the trial court unreasonably adopted 

a rationale not supported by the record to affirm the board’s decision.

The following facts were found by the trial court or are otherwise evident 

from the certified record. In March 2016, Dartmouth submitted its site plan 

application seeking approval of the construction of a 69,860 square foot IPF 

within the college’s 41-acre athletic complex located in Hanover’s Institutional 

Zoning District (I-District). The athletic complex includes two, similarly-sized, 

indoor sports facilities — the Thompson Arena and the Boss Tennis Center —

as well as several outdoor athletic fields, tennis courts, and a large parking lot. 

Dartmouth proposed building the IPF next to the Boss Tennis Center on an 

area known as the “sunken garden,” at the northeast corner of the athletic 

complex. The proposed site abuts a neighborhood of single-family homes on

Tyler Road and Chase Road located in Hanover’s Single Residence zoning 

district (SR-District).

Hanover created the I-District as a “special district” to meet certain needs

of the institution, here, the college — by permitting the development of facilities 

for educational and recreational purposes and large buildings that could 

accommodate warehouse and medical center uses. Town of Hanover Zoning 

Ordinance (HZO) § 405.6(A), (B). The town enacted stringent height limitations 

and setback requirements for buildings within the I-District that are in close 

proximity to residential zoning districts. Id. § 405.6(C)(2), (3). For example, no 

building within the I-District may be placed within 75 feet of a residential 

zoning district boundary, id. § 405.6(C)(2), buildings constructed within 150 

feet of a residential zone may not be more than 35 feet in height, and buildings 

set back 150 feet or more from a residential zone may be, on average, a 

maximum of 60 feet in height. Id. § 405.6(C)(3); see also HZO § 505.1(B)(2) 

(describing the method of calculating height of buildings in the I-District).

Hanover’s SR-District provides for one-family residences that are “typical

[to] many New England villages” along with other types of uses by special 

exception, including agricultural and governmental uses that complement and 

serve single-family homes. Id. § 405.8(A), (B). Additional uses are permitted 

within the SR-District by special exception, such as governmental uses for

public safety, education, and recreation. Id. § 405.8(B). The interplay and 

impacts, both real and potential, between the uses within the I-District and the 

abutting SR-District became a focal point of the opposition to the IPF and the 

board’s consideration of Dartmouth’s site plan application.
3

Between April and December 2016, the board held no fewer than 16 

meetings, including two site visits, during its consideration of the IPF. The 

abutters who reside on Tyler and Chase Roads and own properties closely 

abutting the athletic complex vigorously opposed the IPF.

1 Dartmouth revised 

its site plan application several times to address their concerns, by, inter alia: 

(1) adding plantings of landscape screening in coordination with the requests 

and preferences of the abutting neighbors; (2) modifying the size of the IPF’s 

windows and adding the installation of automatic shades and window glazing 

to reduce light spill from the proposed building; and (3) adjusting the IPF’s roof 

line to lower the building’s height profile.

Although the Hanover Zoning Administrator informed the board that the 

IPF would be fully compliant with the town’s zoning ordinances, including 

ordinances regulating height restrictions, setback requirements and buildingto-lot size ratio limitations, the abutters complained about the negative impacts 

the IPF would impose on their neighborhood, including a concern that the 

building’s height would block an unreasonable amount of sunlight and cast 

shadows on their homes. In response, Dartmouth conducted a study of this 

potential impact and presented its findings to the board by way of an animated 

shadow study.2 The abutters prepared their own interpretation of the college’s 

shadow study that purported to calculate the duration of time that the IPF 

would cast shadows on their residences.

In anticipation of the board’s final deliberations on the college’s 

application, Hanover’s planning board staff prepared a final memorandum

recommending the approval of the application with 21 conditions. Dartmouth 

agreed to comply with all 21 conditions. In December 2016, the board 

 

1 In its filings, Dartmouth alleges that the vice-chair of the planning board improperly influenced 

the board’s decision by actively participating in the opposition to the college’s site plan. This

board member recused herself from the board’s deliberations on the application because her 

residence closely abuts the athletic complex. Dartmouth argues that, despite this member’s 

recusal, she represented the abutters and voiced her strong opposition to the project in letters, 

e-mails and formal presentations to her fellow board members. The college complains that the 

recused board member’s influence on the board was apparent, given that the board ultimately 

decided to deny the application based upon the three general considerations that she advanced 

throughout the site plan review process. The abutters counter that Dartmouth did not raise this 

issue with the trial court. We agree with the abutters. Dartmouth did not raise this issue with 

the trial court or identify it in the college’s notice of appeal. Thus, we do not opine on the 

propriety of the recused board member’s participation in the opposition to the college’s 

application.

2 The record reveals that the abutters’ opposition maintained numerous objections that were not 

relied upon by either the board or the trial court and, thus, are not pertinent to this appeal, 

including complaints with: (1) the project’s impact on the town’s storm water management 

system; (2) the building’s lack of architectural detail; (3) the negative impact the IPF posed to the 

abutters’ property values; and (4) the potential noise and sound pollution created by the proposed 

building. In response to these complaints, Dartmouth retained professionals to study these 

potential impacts and either modified its site plan to address these concerns or presented 

sufficient evidence to rebut them.
4

deliberated on the final site plan application and discussed, among other 

things, the members’ feelings about the project’s scale and the aesthetic effect

it would have on the adjacent neighborhood. Following deliberations, the 

board voted 4-1 to deny the application and issued a notice that enumerated 

three reasons for its decision. In doing so, the board found that the college’s 

site plan application:

1) Does not conform with the Hanover Master Plan (As cited in 

Article IX A 2b of the Site Plan Review Regulations);

2) Negatively impacts the abutters, neighborhood and others, town 

services and fiscal health (As cited in Article IX A 2c Site Plan 

Review Regulations); and

3) Does not relate to the harmonious and aesthetically pleasing 

development of the town and its environs (As cited in Article IX 

A 2h Site Plan Review Regulations).

Dartmouth appealed the board’s decision to the trial court, arguing that 

the three regulations relied upon by the board are vague, ambiguous, and not 

proper standards by which to review a site plan application under either RSA 

674:44 (2016), or the New Hampshire and United States Constitutions. N.H.

CONST. pt. I, art. 15; U.S. CONST. amend. XIV. The college also maintained 

that the board impermissibly based its decision on personal and subjective 

feelings, rather than objective and discernible standards. Hanover appeared 

but deferred to the intervening abutters with respect to Dartmouth’s appeal. 

The abutters argued that the board’s decision was legal and reasonable and 

maintained that the IPF: (1) is massive and out of character with the abutting 

residential neighborhood; (2) fails to provide for the harmonious, aesthetically 

pleasing, or attractive development of the town; and (3) is capable of blotting 

out the sun and shadowing homes in the abutting neighborhood for 7 months 

of the year.

The trial court held a one-hour hearing in August 2017 following 

substantial briefing and arguments submitted by the college and the abutters.

3 

The record of the hearing establishes that the parties did not dispute that the 

application complied with the requirements of Hanover’s zoning ordinances 

applicable to the I-District. Nonetheless, the trial court subsequently upheld 

the board’s decision, ruling that the regulations the board relied upon are 

valid. The trial court also ruled that the board did not err by basing its

decision, “to a considerable degree on its concerns about the project’s impacts 

 

3 The Town of Hanover did not participate in the appeal other than to defer to the abutters and, 

assuming the college prevailed on appeal, agree to Dartmouth’s request for the “builder’s remedy” 

provided the college complied with the conditions to approval recommended by the town’s 

planning board staff.
5

on the abutting homes, as opposed to the entire ‘neighborhood’ of the proposed 

facility.” The trial court further ruled that the board members did not 

impermissibly rely upon their personal feelings, and concluded that the board’s 

decision was lawful and reasonably based upon a particular concern that the 

IPF “would block an unreasonable amount of sunlight from reaching abutting 

homes.”

On appeal, Dartmouth argues that: (1) the board and the trial court erred 

by relying upon general considerations of Hanover’s site plan regulations to 

deny the application because the general considerations are vague and fail to 

establish clear standards necessary to assess the application under our 

“average person” standard, see Town of Freedom v. Gillespie, 120 N.H. 576, 

580 (1980) (ordinance must be framed in terms sufficiently clear, definite, and 

certain, to enable an average man after reading it to understand when he is 

violating its provisions); and (2) the board improperly based its decision on 

personal feelings and engaged in ad hoc decision-making, while the trial court 

erroneously relied upon unsupported claims and adopted a rationale, not 

supported by the evidence or the board’s deliberations, to affirm the board’s 

decision. The abutters respond by maintaining that, in general and as applied 

to Dartmouth’s application, the location of the proposed IPF provided the 

necessary “observable character,” see Town of Deering v. Tibbetts, 105 N.H. 

481, 485-86 (1964), such that the “ordinary person” could understand and 

comply with the general considerations. The abutters also argue that,

pursuant to our deferential standard of review, the record supports the trial 

court’s determination that Dartmouth failed to meet the general considerations.

We now turn to the applicable standard of review. The trial court’s 

review of a planning board’s decision is governed by RSA 677:15, V (2016), 

which provides that the trial court “may reverse or affirm, wholly or partly, or 

may modify the decision brought up for review when there is an error of law or 

when the court is persuaded by the balance of probabilities, on the evidence 

before it, that [the board’s] decision is unreasonable.” As such, the trial court’s 

review is limited. Motorsports Holdings v. Town of Tamworth, 160 N.H. 95, 99 

(2010). The trial court must 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. The trial court determines, not

whether it agrees with a planning board’s findings, but rather whether there is 

evidence upon which its findings could have been reasonably based. Id. Our 

review is similarly limited. We will reverse a trial court’s decision on appeal 

only if it is not supported by the evidence or is legally erroneous. See id. We 

review the trial court’s decision to determine whether “a reasonable person 

could have reached the same decision as the trial court based on the evidence 

before it.” Star Vector Corp. v. Town of Windham, 146 N.H. 490, 493 (2001)

(quotation omitted).
6

Bearing in mind the foregoing standards of review, we consider

Dartmouth’s second argument on appeal. Specifically, we will address the 

college’s argument that the trial court’s decision is unreasonable and legally 

erroneous because the court: (1) relied upon factual claims and a rationale, not 

supported by the evidence or the board’s deliberations; and (2) upheld a 

planning board decision that was based upon ad hoc decision-making and 

personal feelings, rather than objective or discernible facts, to find that the 

application failed to meet the general considerations. Before assessing the 

merits of this argument, we briefly review the planning board’s duties and 

obligations in conducting the site plan review process.

“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.’” Summa Humma Enters. v. Town of Tilton, 151 N.H. 75, 78 (2004) 

(quoting 15 P. Loughlin, New Hampshire Practice, Land Use Planning and 

Zoning § 30.01, at 425 (2000)). Site plan review is intended to ensure “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. (quotation omitted). “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. (quotation omitted). Site plan 

review is, nonetheless, limited. Id. A planning board’s review “‘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. (quoting Loughlin, supra

§ 30.09, at 437).

Here, the trial court ruled that the board reasonably concluded that 

Dartmouth’s application failed to meet the general considerations set forth in 

Article IX 2(c) and (h) of Hanover’s site plan regulations. The trial court found 

that the board denied the application out of a concern that the IPF “would 

block an unreasonable amount of sunlight from reaching the abutting homes.” 

As support for this finding, the trial court cited certain statements made by 

board members during their deliberations and relied upon the report prepared 

by the abutters in response to Dartmouth’s shadow study. The trial court 

quoted this report and expressly relied upon its conclusion that “‘residents of 

neighboring homes will lose a significant portion of the direct sunlight when 

days are shortest,’ and in some cases, ‘more than 10 [percent] of direct sunlight 

will be lost.’” Based on this evidence, the trial court found that “[b]oard 

members could reasonably have concluded that the proposed facility would 

block a significant amount of sunlight from reaching abutting homes [which] is 

objectively both a negative impact upon abutters and inconsistent with the 
7

harmonious and aesthetically pleasing development of the environs of the 

proposed facility.”

The record of the board’s deliberations, however, does not support the 

trial court’s findings or its conclusion. On the record before us, a reasonable 

person would not have found, as the court did, that the board rejected the site 

plan due to a concern that the IPF would negatively impact the neighborhood 

by blocking “a significant amount of sunlight from reaching abutting homes.” 

Cf. Motorsport Holdings, 160 N.H. at 103-04 (discussing review of certified 

record to determine whether the board sufficiently apprised the applicant of its 

reasoning in denying an application for a special use permit). Our review of the 

transcript of the board’s deliberations reveals that two board members 

mentioned “general darkening,” “blocked views,” the “absence of light,” and 

“shading” as potential concerns with the IPF. But, the record also reflects that 

these board members did not base their decision on any one of these factors. 

Rather, board member Carter acknowledged that “our own site plan regulations 

are not sufficiently developed on these topics . . . to deny the IPF [on that 

basis].” Board member Sims reasoned that:

What we also have to recognize is that there is some shading 

probably already caused by the existing trees, which are already 

quite tall and will continue to grow, I hope, in some respects for 

many years to come. So the question is, how much more shading 

on top of the existing shading, will the building create, and is it 

excessive? And I don’t know how we can measure that.

The remaining two board members who voted to deny the application did not 

reference shadows, shading, or any other objective criteria. Instead, board 

member Mayor concluded that the “building itself, in its location as proposed, 

looms as an affront to the adjacent neighborhood,”4 and board member 

Criswell reasoned that “the crux of the matter has been the scale and proximity 

of the building to the neighborhood and how those things, in turn, affects [sic] 

the character.”

The trial court misinterpreted the record because, contrary to its

findings, the board did not deny Dartmouth’s application because the IPF 

would deprive abutting homes of sunlight. Although the trial court 

acknowledged our prior rulings prohibiting planning board decisions based 

upon personal opinions or “vague concerns,” see Ltd. Editions Props. v. Town 

of Hebron, 162 N.H. 488, 497 (2011), the court unreasonably relied upon facts

that are not supported by the record of the board’s deliberations to justify the 

board’s decision. Because the record does not support the trial court’s finding 

 

4 We recognize that board member Mayor also commented on his responsibility to protect the 

neighborhood from a loss of property values as a factor in his decision. We specifically address 

this issue later in this opinion.
8

that the board rejected the application out of a particular concern that the IPF 

would block an unreasonable amount of sunlight from reaching abutting 

homes, the trial court’s decision is erroneous.

Moreover, even if the trial court could have reasonably found that the 

board’s deliberations reflect a concern with the IPF’s potential impact on 

blocked sunlight and shading, the record does not reasonably support this

conclusion. In its order, the trial court relied upon the conclusions of the 

abutters’ analysis of the college’s shadow study that purported to calculate the 

hours in a day during which the IPF would cast shadows on five abutting 

homes between September 21 and March 21. Based upon these conclusions, 

the trial court gathered that “the facility would block up to over an hour of 

mostly afternoon sunlight from reaching certain homes during some months of 

the year.”5

Absent from the trial court’s analysis, however, is any recognition of the 

impact caused by the existing tree line within the border between the athletic 

complex and the abutting properties. Notably, the record includes evidence 

that the abutters’ analysis of the college’s shadow study acknowledged that 

“[t]he presence of foliage on the trees obscures the impact of the IPF shadows” 

and board member Sims identified shading caused by existing trees as a basis 

for not relying upon this potential impact as a rationale for denying the 

application. Dartmouth’s animated shadow study surveyed trees on the 

college’s property for height and foliage in an effort to accurately depict 

darkening or shadowing.6 The college’s study concluded that any shading that 

could be attributed to the IPF was heavily intertwined with the shadows cast by 

existing buildings and trees located within the athletic complex that bordered 

the abutters’ residences. The trial court ignored the findings reached by 

Dartmouth’s expert shadow study and unreasonably adopted the abutters’ 

conclusions without considering whether their conclusions were reasonably 

based upon objective facts, rather than vague and unsupported concerns.

The abutters argue that the board was justified in not crediting 

Dartmouth’s shadow study. This argument, however, misses the point because

the board did not rely upon shadowing, darkening, or the abutters’ shadow 

report to deny the application. While the board may have been free to question 

and reject the methodology or conclusions of the college’s expert study, see

Vannah v. Bedford, 111 N.H. 105, 112 (1971), overruled on other grounds by

Cook v. Town of Sanbornton, 118 N.H. 668 (1978), the trial court could not 

 

5 To the extent the trial court relied on the abutters’ report in making any findings with regard to 

shadows or darkening of the abutting neighborhood, these findings and conclusions are not 

reasonably supported by the abutters’ study of potential shading on the five closest, abutting 

residences.

6 We note that the college’s study did not include animations of shadowing created by the existing 

trees located on the neighboring properties on Tyler Road. We thus find it reasonable to conclude 

that the conclusions of the college’s shadow study are conservatively drawn.
9

have reasonably ignored the college’s study and adopted the abutters’ 

conclusory opinions when the record reflects that: (1) the board did not rely on 

the abutters’ analysis to deny the application; and (2) the abutters’ analysis 

was based upon vague and unsupported concerns and not objective facts.

Our previous rulings do not support the trial court’s deference to the

board’s decision under these circumstances. In Continental Paving v. Town of 

Litchfield, 158 N.H. 570 (2009), for example, we upheld the trial court’s 

reversal of the zoning board of adjustment’s denial of a special exception where 

the applicant presented uncontroverted expert evidence in support of the

exception and the opposing lay opinions and general information were 

insufficient to refute the experts’ conclusions. Continental Paving, 158 N.H. at 

573-74. Here, the record fails to support either of the trial court’s conclusions

that the board denied the application out of a concern that the IPF would 

deprive abutting homes of sunlight, or that there is sufficient support in the 

record to conclude that the IPF would negatively impact the abutting homes in 

this manner. Accordingly, we cannot conclude that a reasonable person could 

have reached the same decision as the trial court based on the evidence before 

it.

We next turn to Dartmouth’s contention that the trial court erroneously 

found that the board did not rely on personal feelings and ad hoc decisionmaking in deciding that the application failed to meet Hanover’s general 

considerations. As we have previously noted, the board’s notice of action relied 

upon three general considerations of Hanover’s site plan regulation when it 

denied the college’s application. The trial court, however, only considered the 

board’s determination that the site plan failed to meet two of these general 

considerations, Article IX 2(c) and (h) of Hanover’s site plan regulations, 

because the abutters implicitly conceded the illegality of the board’s denial of

the application based upon its nonconformance with the Hanover Master Plan.7 

We will similarly limit our review to the two general considerations relied upon 

by the board and considered by the trial court.

The interpretation of a planning board’s regulations presents a question 

of law for this court to decide and we are not bound by the interpretation of the 

planning board. Lemm Development Corp. v. Town of Bartlett, 133 N.H. 618, 

620 (1990). Moreover, a planning board’s decision “must be based upon more 

than the mere personal opinions of its members.” Ltd. Editions Props, 162 

N.H. at 497. Although the members of a planning board are entitled to rely, in 

 

7 In Rancourt v. Town of Barnstead, 129 N.H. 45, 48-49 (1986), we rejected a planning board’s 

reliance on limited growth recommendations in a master plan when no such limited growth 

legislation had been implemented by an action of the local legislative body pursuant to State 

statutes. Here, counsel for the abutters informed the trial court that the board members who 

voted to deny approval of the application did not base their decision on a lack of conformity with 

the master plan, although the record suggests otherwise. Nonetheless, we need not address this 

aspect of the board’s decision because this issue was not considered by the trial court.
10

part, on their own judgments and experiences, the board, as a whole, “may not 

deny approval on an ad hoc basis because of vague concerns.” Id.

The board decided that Dartmouth’s application failed to meet Article IX 

2(c) because the IPF “[n]egatively impacts the abutters, neighborhood and 

others, town services and fiscal health.” The board also found that the IPF 

failed to meet Article IX 2(h) of Hanover’s site plan regulations, which requires 

the board to assess the “relationship of the project to the harmonious and 

aesthetically pleasing development of the town and its environs.” The trial 

court ruled that the board could have reasonably found that the site plan

application failed to meet Article IX 2(c) because the IPF “would block a 

significant amount of sunlight from reaching abutting homes.” However, as we 

previously explained, this ruling is inconsistent with the reasoning articulated 

by the board during its final deliberations. Thus, the trial court erroneously 

interpreted the evidence and misconstrued the board’s deliberations in 

upholding the board’s decision that the application failed to satisfy this general 

consideration. The trial court similarly erred by sustaining the board’s 

determination that the IPF failed to meet Article IX 2(h). The trial court found 

that the board could properly “consider and give appropriate weight to a

proposal’s effects on abutting properties,” and with respect to Article IX 2(h), its 

relationship with the “‘environs’ of a project.” Yet, both general considerations

explicitly require an assessment of the project’s impact and relationship to the 

development of the neighborhood, the town, and its environs, not just its 

impact on, and relationship with, abutting properties, or “the environs of the 

project.”

When interpreting planning board regulations, which we do de novo, the 

general rules of statutory construction govern our review. See Doyle v. Town of 

Gilmanton, 155 N.H. 733, 735 (2007). Thus, the words and phrases of the 

regulations should be construed according to the common and approved usage 

of the language. Id. Webster’s Third New International Dictionary defines 

“environs” as “the enclosing limits or boundaries” and “the suburbs or districts 

round about a city or other populated place.” Webster’s Third New 

International Dictionary 760 (unabridged ed. 2002). Applying the approved 

and common usage of the term “environs” to Article IX 2(h) requires an 

assessment of the proposal’s relationship to the surrounding districts and not 

just to its relationship to the surroundings of the proposed site of the project. 

The trial court and the board applied this consideration too narrowly.

The environs to which this general consideration applies includes the 

I-District, as well as the SR-District, and a proper assessment of the project’s 

relationship to the harmonious and aesthetically pleasing development, must, 

at the very least, include both districts. The SR-District is zoned for one-family 

residences “as is typical [to] many New England villages,” with other types of 

uses allowed by special exception, including agricultural and governmental 

uses that complement and serve single-family homes. HZO § 405.8. The 
11

I-District is zoned to meet the needs of the institution, or the college, and 

permits the development of facilities for educational, recreational purposes,

including warehouses and other uses. Id. § 405.6(A), (B). Thus, the facts at 

issue here differ from the circumstances we addressed in Tibbetts, where 

Deering sought to protect its well-defined, historic and harmonious town

common. See Tibbetts, 105 N.H. at 483-84. In contrast, the “observable 

character” of the neighborhood here includes two similarly-sized, indoor 

athletic facilities within a zoning district that obviously permits the 

development of buildings like the IPF. See HZO § 405.6(B). Any conclusion 

that the IPF lacks conformity or is not harmonious with the character and 

development of this neighborhood, or the town and its environs, is directly 

contradicted by the applicable zoning regulation and is unreasonable.

The abutters further contend that the trial court properly upheld the 

board’s findings that the application failed to meet the general considerations, 

because: (1) the IPF represents a “dramatic and permanent change” to the open 

views enjoyed by the neighboring residences; and (2) is an “incongruous 

structure” that would constitute a “significant expansion” that “will certainly 

change the nature, feel and atmosphere of the neighborhood” without a 

“meaningful and harmonious transition” from the I-District to the Tyler Road 

neighborhood. They urge us to consider evidence allegedly supporting the trial 

court’s decision, such as the college’s refusal to consider alternative locations 

for the IPF, other than the sunken garden, and the project’s adverse impact on 

the property values of the abutters’ residences. Citing our decision in Quinlan

v. City of Dover, 136 N.H. 226 (1992), the abutters remind us that when “a trial 

court reaches the correct result, but on mistaken grounds, [we] will sustain the 

decision if there are valid alternative grounds to support it.” Quinlan, 136 N.H. 

at 230 (quotation omitted). Our review of the record, however, fails to identify a 

valid alternative ground that was considered by the board and which supports 

the trial court’s decision.

Undoubtedly, the Tyler and Chase Road neighborhood has benefited from

Dartmouth’s undeveloped, open fields, such as the sunken garden, within its 

athletic complex. The record confirms that the abutters opposed any 

development of the sunken garden to preserve the buffer of open space between 

the college’s athletic complex and their neighborhood. The record of the 

board’s deliberations evidences the board’s support for the abutters’ position. 

Nonetheless, a planning board cannot use the site plan review process to 

require a landowner to dedicate its own property as open space for essentially 

public use without proper compensation. See Robbins Auto Parts, Inc. v. City 

of Laconia, 117 N.H. 235, 236-37 (1977) (ruling that planning board could not 

require applicant to grant to the city an easement over the applicant’s property 

as a condition to site plan approval); Burrows v. City of Keene, 121 N.H. 590, 

598 (1981) (arbitrary or unreasonable zoning restrictions that substantially 

deprive an owner of the economically viable use of his land constitutes a 

taking). Moreover, the added setback and height restrictions governing 
12

I-District developments that abut residential areas already address the concern 

for a harmonious transition between zones. See HZO § 405.6(C) (2), (3). The 

record does not reasonably support a conclusion that Dartmouth should be 

prohibited from developing its property, in a manner consistent with the zoning 

requirements, and maintain open space to satisfy a general consideration for 

the harmonious and aesthetically pleasing development of the town and its 

environs. Accordingly, the trial court erred in upholding the board’s finding 

that the IPF failed to meet either Article IX 2(c) or 2(h).

To the extent that the abutters argue that the board relied upon the 

project’s potential impact on property values, the record shows that, while one 

board member referenced property values as a factor in his decision, the other 

board members either rejected or did not mention this rationale as a basis for 

denying the site plan application. The record includes studies submitted by 

Dartmouth and prepared by a licensed appraiser who determined that the IPF 

would not impact the property values of the abutting neighborhood. Evidence 

submitted by the abutters refuting this opinion consisted of anecdotal 

statements and conclusory estimates, without supporting data, from residents 

and retired or unidentified real estate agents. Even if the board denied site 

plan approval based upon the IPF’s negative impact on property values, the 

record fails to include evidence that would reasonably support such a finding. 

See Continental Paving, 158 N.H. at 574. If the board denied the college’s 

application because the IPF would negatively impact property values, its 

reliance upon this factor goes well beyond the board’s personal judgment and 

experience. See Condos East Corp. v. Town of Conway, 132 N.H. 431, 438 

(1989). Thus, to the extent that the trial court relied upon this same factor as 

a basis for upholding the board’s decision, the evidence does not reasonably 

support such a conclusion.

Finally, the abutters argue that the trial court’s decision is sustainable 

because the court reasonably concluded that Dartmouth refused to mitigate 

the negative impacts of the IPF by, inter alia, placing the IPF on an alternative 

location within the athletic complex, sinking the building deeper into the 

ground, reducing its height or otherwise pursuing less impactful alternatives. 

The abutters rely upon Bayson Properties v. City of Lebanon, 150 N.H. 167 

(2003), as support for the proposition that an applicant’s refusal or inability to 

meet conditions necessary for planning board approval is a sustainable reason 

for denial. Bayson Properties, 150 N.H. at 175-76. The circumstances at issue 

in Bayson, however, are inapposite to the facts in this case.

In Bayson, we upheld the trial court’s finding that the planning board’s 

denial of a site plan application was reasonable when: (1) the board conditioned 

approval on the development of an additional landscape buffer to abate 

negative sight, noise and pollution impacts the project imposed on a 

neighboring elder care facility; and (2) the board’s decision included detailed 

findings of non-compliance with the town’s site plan regulations. Id. at 174-75. 
13

In that case, the trial court found that the board’s decision was reasonable 

because an additional landscape buffer was necessary, the applicant refused to 

meet that condition, and the applicant’s offer to reduce pollution by limiting its 

vendors’ deliveries could not be realistically enforced on private vendors. Id. 

By contrast, in this case, the board did not condition approval of Dartmouth’s 

application on any condition that the college refused to meet. Rather, 

Dartmouth agreed to comply with all of the conditions the Hanover planning 

board staff recommended as conditions to site plan approval, and the board did 

not impose any other conditions as a requirement for approval.

Unlike the circumstances reported in Bayson, the board’s decision here 

fails to include any detailed findings of non-compliance with specific site plan 

regulations or zoning ordinances. Rather, the record reflects that the planning 

board staff concluded that the application met all requirements. The record 

also establishes that the college repeatedly revised its site plan and performed 

multiple studies to determine and address the IPF’s potential impacts on the 

abutting neighborhood with respect to sound, light, property values and storm 

water discharges. In its application and its subsequent submissions to the 

board, Dartmouth repeatedly and reasonably explained why the proposed 

location of the IPF was the most logical and feasible site to accommodate the 

new facility. During its final deliberative session, board members repeatedly 

praised Dartmouth for the time and effort the college devoted to addressing the 

concerns of its neighbors. On this record, we cannot find that the evidence 

reasonably supports the trial court’s conclusion that the college refused to alter 

its site plan to address the concerns of the abutters and to comply with 

Hanover’s site plan regulations.

Our review of the record of the board’s deliberative session supports 

Dartmouth’s contention that the board unreasonably relied upon personal 

feelings and ad hoc decision-making in denying the college’s application. This 

record reveals that the board was more concerned with the IPF’s scale and 

height, characteristics governed by specific zoning ordinances, than the 

building’s aesthetics or its allegedly negative impacts on the environs. There is 

no dispute that the application complies with all of the applicable and specific 

zoning and site plan regulations. Nonetheless, board member Criswell stated 

that, for him, “the crux of the matter [is] the scale and proximity of the building 

to the neighborhood and how those things, in turn, affect[ ] the character.” In 

explaining his vote, board member Mayor concluded simply that the “building

itself, in its location as proposed, looms as an affront to the adjacent 

neighborhood.” We recognize that, on appeal, a planning board’s factual 

findings are considered prima facie lawful and reasonable, Motorsports 

Holdings, 160 N.H. at 99, but the planning board’s deliberations in this case 

cannot logically be considered fact-finding. Rather, the board engaged in ad

hoc reasoning characterized by conclusory statements and personal feelings 

unsupported by the evidence or the applicable regulations.
14

The comments of board member Sims demonstrate the board’s reliance 

on personal feelings and ad hoc judgments to justify its finding that 

Dartmouth’s application did not meet the general considerations:

[T]here’s no data point that can be constructed, in my thinking, 

that will help us actually measure whether [the IPF is] harmonious 

and aesthetic [sic]. It comes to be a very personal judgment as to 

whether or not we think that this building, in fact, meets that 

standard. . . . And I have come to the conclusion that I feel that it 

doesn’t meet the standard of being harmonious development and 

aesthetically — an aesthetically pleasing development, so I will vote 

to reject the motion [for approval of the application].

(Emphases added.)

It is well settled that a planning board is entitled to rely in part on its 

own judgment and experience when acting upon applications for site plan 

approval. Condos East Corp., 132 N.H. at 438. Nonetheless, a board’s 

decision must be based on more than the mere personal opinion of its 

members. Id.; see also Derry Senior Dev. v. Town of Hebron, 157 N.H. 488, 

451 (2008) (board may not deny approval on an ad hoc basis because of vague 

concerns). In this case, the certified record fails to reveal any objective 

evidence supporting the trial court’s decision. Notwithstanding our deferential 

standard of review afforded to planning board decisions, we cannot, on the 

record before us, conclude that the evidence reasonably supports the trial 

court’s decision to uphold the board’s denial of the application.

Here, the planning board essentially decided that the IPF is: (1) too large

and imposing, despite the project’s compliance with Hanover’s I-District zoning 

ordinances regulating a structure’s height and size; (2) too close to the abutting 

neighborhood, despite the project’s compliance with the unique setback and 

height restrictions imposed by its proximity to a residential neighborhood; and 

(3) not a harmonious or aesthetically pleasing fit with the development of the 

town and its environs, despite the fact that the IPF constitutes a permitted use 

within a “special district” that not only contemplates large warehouse and 

recreational facilities, see HZO § 405.6(A), (B), but currently includes two 

indoor sports facilities of similar sizes. A planning board cannot supersede the 

specific regulations and ordinances that control the site plan review process 

with their own personal feelings and then justify their reasoning through the 

application of general considerations. See Summa Humma Enters., 151 N.H. 

at 78 (site plan review “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” (quoting Loughlin, supra § 30.09, at 437)).

We do not suggest that site plan review should be reduced to the 

mechanical process of determining conformity with specific zoning and site 
15

plan regulations. In this case, however, the planning board’s reliance solely 

upon general considerations to override the site plan’s conformity with specific 

regulations and ordinances, without sufficient evidentiary support for doing so,

was unreasonable. Sustaining the board’s decision here would sanction a 

denial of a property owner’s site plan application simply because board 

members felt that the owner’s permitted use of its own property was 

inappropriate. Such a finding would render zoning “obsolete, as it would afford 

no protection to the landowner.” Id. at 81 (Nadeau, J., dissenting) (quotation 

omitted); see also 15 P. Loughlin, New Hampshire Practice, Land Use Planning 

and Zoning, §30.09, at 556 (2010) (“If the use is permitted by the zoning 

ordinance, it cannot be barred by the site review process unless the use would 

create unusual public safety, health, or welfare concerns.”).

In light of our decision, we need not address the college’s claim that the 

general considerations are vague or ambiguous. For the foregoing reasons, we 

reverse the trial court’s order upholding the planning board’s denial of 

Dartmouth’s site plan application. As we previously found, the record 

establishes that the IPF complies with Hanover’s specific zoning ordinances 

and site plan regulations. Further deliberations or fact-finding are 

unnecessary to determine whether the college’s application is lawful or 

reasonable. Therefore, Dartmouth is entitled to relief which rewards its efforts 

challenging the legality of the board’s decision and prevents retributive action 

by the municipality. Britton v. Town of Chester, 134 N.H. 434, 442 (1991). 

“‘To forsake [the college’s] reasonable development plans after all the time, 

effort and capital invested in such a challenge [would be] grossly inequitable.’” 

Id. at 443 (quoting Casey v. Zoning Hearing Board of Warwick Township, 328 

A.2d 464, 469 (Pa. 1974)). Thus, we grant Dartmouth’s request for the 

Builder’s Remedy provided the college complies with each of the 21 conditions 

identified by Hanover’s planning board staff and considered by the planning 

board.

Reversed and remanded.

LYNN, C.J., and HICKS and HANTZ MARCONI, JJ., concurred.