Summa Humma Enterprises, LLC v. Town of Tilton

Summa Humma Enterprises, LLC d/b/a MB Tractor (MB Tractor) (plaintiff) operated a commercial business that sold and serviced heavy equipment. MB Tractor sought permission to install a 90-foot flagpole with a 960 square-foot American flag, so it filed an application to amend its site plan, which is a plan to show the technical details of a proposed project, with the Town of Tilton Planning Board (planning board) (defendant). The planning board reviewed MB Tractor’s application at a public hearing. At the hearing, the planning-board members voiced concerns over the flag’s lighting at night, the fact that the flag exceeded the zoning ordinance’s 50-foot height restriction for buildings, the noise of the flag in the wind, safety concerns over ice falling from the pole or the pole itself falling, and the use of the flag as advertising. MB Tractor’s representatives at the public hearing were unable to answer questions about the pole’s size, the effect of the lighting of the pole, and the potential noise of the flag. Ultimately, the planning board approved MB Tractor’s application, but the planning board conditioned the approval on a 50-foot height restriction, which was the height restriction for buildings under the zoning ordinance. The planning board reasoned that the height restriction of 50 feet would address concerns about safety, noise, and aesthetics. MB Tractor appealed the planning board’s decision to the superior court. The superior court upheld the planning board’s decision. MB Tractor appealed to the New Hampshire Supreme Court, arguing that the restriction on the flagpole’s height was improper because flagpoles were not regulated under the zoning ordinance and that the planning board had no evidence regarding the potential noise that the flag would create or safety issues due to falling ice.