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Hermel and Denyse Fortier Revocable Trust v. Town of Loudon

Supreme Court of New Hampshire

August 9, 2013

Hermel and Denyse Fortier Revocable Trust, Hermel Fortier and Denyse Fortier, Trustees
Town of Loudon

The Town of Loudon (the Town) appeals a ruling of the superior court ordering the Town to accept and lay out a public highway. We reverse.

The petitioners constructed a 600-foot paved road, now called Fieldview Lane, as a condition of approval from the Town planning board to subdivide a 100-acre lot into three parcels. They then petitioned the board of selectmen to lay out Fieldview Lane as a public highway, pursuant to RSA 231:8 (2009). The board of selectmen unanimously denied that petition, and the petitioners appealed to the superior court, see RSA 231:34 &:38 (2009), asking it to require that the Town accept the road. The superior court ruled in favor of the petitioners, concluding that: (1) the planning board exceeded its authority in requiring the petitioners to build what "amounted to . . . a public roadway"; (2) the public interest required the board of selectmen to accept and lay out the road; and (3) the Town was estopped from denying the petition to lay out the road. The Town appeals.

The Town argues that the trial court erred in ruling that the planning board's authority to impose conditions on road construction "ended" when it determined that it would not accept Fieldview Lane as a private road – i.e., that the petitioners could not use the existing gravel driveway as the subdivision road on which newly created lots would have the required road frontage. The Town maintains that the planning board has authority to condition its approval of a subdivision on the construction of a road – regardless of whether the road is public or private – that satisfies the road construction standards set forth in the Town's regulations. We agree.

As the Town observes, under RSA 674:36, II(b) (2008), a town planning board has broad authority to "[p]rovide for the harmonious development of the municipality and its environs." A board may "[r]equire the proper arrangement and coordination of streets within subdivisions, " RSA 674:36, II(c) (2008), and "[r]equire suitably located streets of sufficient width to accommodate existing and prospective traffic and to afford adequate light, air, and access for firefighting apparatus and equipment to buildings, " RSA 674:36, II(e) (2008). Notably, RSA 674:35, I (2008) declares that "[a] municipality may by ordinance or resolution authorize the planning board to . . . approve or disapprove plans showing the extent to which and the manner in which streets within subdivisions shall be graded and improved." Indeed, RSA 674:36, III (2008) specifically declares that "[t]he subdivision regulations of the planning board may stipulate, as a condition precedent to the approval of the plat, the extent to which and the manner in which streets shall be graded and improved." (Emphasis added.).

The Town's subdivision regulations do just that. For example, Article 23, entitled "Additional Design Standards for Site Plans and Subdivision, " prescribes the "minimum requirements" an applicant must satisfy "when preparing and laying out a subdivision development." Article 23 contains specific design standards for, among other things, dead-end streets and street grades. The standards do not distinguish between public and private roads. Under section 23.2, entitled "Subdivisions Creating New Private Roads, " the planning board has discretion to "approve the layout of roads to be built and maintained exclusively by said roadway owner(s)" subject to conditions such as: (1) the posting of a surety to cover construction and maintenance costs; (2) the existence of a maintenance agreement stipulating who among the lot owners is responsible for the road's maintenance; and (3) an acknowledgment to be executed by the applicant confirming that he or she understands that the town is not obligated to "take over maintenance or other responsibility associated with" the roadway. In this case, the petitioners signed such an acknowledgment.

In short, the board acted within its authority when it conditioned approval of the petitioners' subdivision on the creation of a road that met the town's minimum road design standards. The trial court erred in concluding otherwise.

The trial court also concluded that, after the planning board denied their request to accept Fieldview Lane as a private subdivision road, the petitioners' plans would have "stalled" until they sought approval from the selectmen. It may have been prudent for the petitioners, before proceeding with construction, to seek assurances from the board of selectmen that the proposed road would be accepted as a public road. Any delay in the subdivision process, however, would have been the product of the petitioners' choice, since the planning board had the authority to require the petitioners to build a road meeting minimum design standards as a condition of approval, and the petitioners could have proceeded regardless of whether the road was to be private or public.

Nor was the trial court correct when it stated that the planning board "required the [p]etitioners to build a public highway." The planning board required the petitioners to build a road that would satisfy the Town's minimum design standards, irrespective of whether that road was to be accepted by the board of selectmen as a public highway. The planning board did not, and indeed could not, require the construction of a public highway.

Next, the Town argues that the trial court erred in ruling that there was an "occasion" for the layout of the subdivision road as a public highway. RSA 231:8 provides that the "[s]electmen of a town, upon petition, may lay out any new class IV highway not financed in whole or in part with federal aid highway funds, and class V or VI highway or alter any such existing highway within their town for which there shall be occasion." An "occasion" to lay out a public road exists if the public interest requires the town's acceptance of the road. Rockhouse Mt. Property Owners Assoc. v. Town of Conway, 133 N.H. 130, 134 (1990). This determination involves balancing the public need for the road against the burden the road would impose on the town. Id. We will uphold the decision of the trial court as to whether or not an occasion exists if it is supported by some evidence, is not based on fraud or gross mistake, and is not legally erroneous. Crowley v. Town of Loudon, 162 N.H. 768, 773 (2011).

Assessing occasion involves an equitable balancing of competing interests. Green Crow Corp. v. New Ipswich, 157 N.H. 344, 350 (2008). In making this determination, the trial court may consider the following factors: (1) integration within an existing road system; (2) ease of existing traffic flow; (3) improvement to convenience of travel; (4) facilitation of transportation for school children; (5) improved accessibility to business district and employment centers; (6) improved accessibility for fire, emergency and police services; (7) whether it would benefit a significant portion or just a small fraction of the town tax base or year-round residents; and (8) anticipated frequency of road use. Crowley, 162 N.H. at 773-74. In assessing the town burden, trial courts may consider anticipated construction and ongoing maintenance costs pertaining to the road itself, as well as the impact on the town's infrastructure due to municipal growth, such as increased costs for school, fire, police and emergency systems. Id.

We agree with the Town that the public interest did not require it to lay out a public highway. The benefits to the Town of requiring it to lay out Fieldview Lane as a public road are minimal. Fieldview Lane is a dead-end street serving one single-family residence. Thus, a public layout would benefit "just a small fraction of the town tax base" (factor 7) and would improve neither "convenience of travel" (factor 3) nor access to "business district and employment centers" (factor 5). Crowley, 162 N.H. at 773-74; cf. Rockhouse, 130 N.H. at 134 (observing that many of proposed public roads were dead-end streets that did not interconnect with other town streets). Furthermore, there is no reason to anticipate that Fieldview Lane would be used frequently by anyone other than the current occupants of the residence (factor 8), would "ease . . . existing traffic flow" (factor 2), or would improve fire, emergency, or police access (factor 6). Although Fieldview Lane is connected to Oak Hill Lane, it is not "integrat[ed] within an existing road system" (factor 1) simply because it satisfies Town road construction requirements, as the trial court believed. Finally, laying out Fieldview Lane as a public highway does nothing to facilitate transportation for school children, as the road is located roughly where the gravel driveway was previously.

In comparison to the minimal public benefits explained above, the burden to the Town of laying out Fieldview Lane is substantial. The Town would be required to maintain the road year-after-year, incurring costs associated with, among other things, plowing, salting, painting, mowing, and repaving. On balance, the costs associated with laying out Fieldview Lane as a public highway far outweigh its public benefits. See Jackson v. Ray, 126 N.H. 759, 762 (1985) (finding no error in master's conclusion that the public need did not require acceptance of .6 miles of roads serving four to seven residents). Accordingly, we conclude that the superior court's ruling on this issue was legally erroneous.

Finally, the Town argues that the trial court erred in ruling that the board of selectmen was estopped from refusing to lay out Fieldview Lane as a public highway. New Hampshire towns may be subject to estoppel, but the law disfavors doing so – "especially when a valuable public interest may be jeopardized by applying the doctrine . . . against the municipality." Hansel v. City of Keene, 138 N.H. 99, 102 (1993). The elements of estoppel are: first, a false representation or concealment of material facts must have been made with knowledge of those facts; second, the party to whom the representation was made must have been ignorant of the truth of the matter; third, the representation must have been made with the intention of inducing the other party to rely upon it; and fourth, the other party must have been induced to rely upon the representation to his or her injury. Town of Atkinson v. Malborn Realty Trust, 164 N.H. 62, 67 (2012). In addition, the reliance by the party bringing the estoppel claim must have been reasonable. City of Concord v. Tompkins, 124 N.H. 463, 468 (1984). "Existence of estoppel is a question of fact, and the burden of proving estoppel is on the party asserting it." Cardinal Dev. Corp. v. Town of Winchester Zoning Bd. of Adjustment, 157 N.H. 710, 715 (2008). We will uphold the trial court's decision unless it is not supported by the evidence or is legally erroneous. Id.

We agree with the Town that the petitioners failed to prove the elements of estoppel. The purported statements the petitioners rely upon to prove estoppel are those of the planning board – an independent body that has no authority to accept and lay out a public highway on behalf of the Town. "Governmental estoppel is appropriate when government officials are acting within their prescribed sphere and functions, and are exerting no excess of authority." Tompkins, 124 N.H. at 468 (quotations, brackets, and citation omitted). The planning board "has only those powers granted to it; it cannot usurp powers belonging to another town body or the town as a whole. Roads must be approved by the town, not the ...

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