Bellevue Properties, Inc. v. 13 Green Street Properties, LLC & a.

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THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
Carroll
No. 2020-0437
BELLEVUE PROPERTIES, INC.
v.
13 GREEN STREET PROPERTIES, LLC & a.
Argued: May 12, 2021
Opinion Issued: October 8, 2021
Bernstein, Shur, Sawyer & Nelson, P.A., of Manchester (Roy W. Tilsley,
Jr. and Christina A. Ferrari on the brief, and Roy W. Tilsley, Jr. orally), for the
plaintiff.
Sulloway & Hollis, P.L.L.C., of Concord (Derek D. Lick on the brief and
orally), for the defendants.
MACDONALD, C.J. The plaintiff, Bellevue Properties, Inc. (Bellevue),
appeals an order of the Superior Court (Ignatius, J.) dismissing its petition to
quiet title and for declaratory judgment brought against the defendants, 13
Green Street Properties, LLC and 1675 W.M.H., LLC (collectively, 13 Green
Street). We affirm.
I. Background
We recite the following facts, derived in part from a related case, Bellevue
Properties v. Town of Conway, 173 N.H. 510 (2020), for background purposes
only. The instant action is one of at least eleven between the parties. Bellevue
owns and operates the North Conway Grand Hotel, which abuts Settlers’
Green, an outlet shopping center owned by 13 Green Street. Bellevue Props.,
173 N.H. at 511-12. Common Court, a road that encircles the hotel and much
of Settlers’ Green, provides access to the properties. Id. at 512. Half of the
road is private, and half is public. Id.
The hotel and Settlers’ Green are located between North Conway’s main
thoroughfare, United States Route 302, and North-South Road. Id. From
Route 302, the most direct means of accessing Bellevue’s property along public
ways is by traveling west along Barnes Road, a public road, and then south
along McMillan Lane, which was a class V highway until 2017, to the public
section of Common Court. See id. Access to Bellevue’s property from Route
302 is also available via a private road that connects to the private section of
Common Court. Id. A recorded easement allows hotel guests to travel over the
private road and the private section of Common Court. Id. From North-South
Road, access to Bellevue’s property is via Fairway Lane, a public road that
connects to the public section of Common Court. Id.
13 Green Street plans to construct a mixed-use development in Settlers’
Green, including a supermarket and parking lot, on an undeveloped parcel of
land (Lot 92) and an abutting lot (Lot 85). Id. McMillan Lane runs through
Lots 92 and 85. See id. To construct a single, continuous development across
both lots, 13 Green Street seeks to replace McMillan Lane with a new private
road that, like McMillan Lane, would run from Barnes Road to the public
section of Common Court. Id.
In connection with 13 Green Street’s plans, in April 2017, Town voters
voted to discontinue McMillan Lane conditioned upon the road remaining open
until 13 Green Street obtained planning board approval to construct an
alternative road. See id. at 513. Thereafter, 13 Green Street maintained
McMillan Lane and kept it open to the public. Id. at 514. We subsequently
upheld the decision to discontinue McMillan Lane. Id. at 511.
In July 2018, 13 Green Street applied to the planning board to construct
the new road, eliminate McMillan Lane, and build the supermarket, parking
lot, and associated infrastructure. The planning board conditionally approved
13 Green Street’s application on November 8, 2018. See id. at 514. As a
condition subsequent to its final approval, the planning board required 13
Green Street to “substantially complete and open to public use” the new road
“prior to closure of McMillan Lane.” Id. (quotations omitted). We upheld the
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planning board’s decision in an unpublished order. Bellevue Properties, Inc. v.
Town of Conway, Case No. 2019-0475, 2020 WL 2306547, at *1 (N.H. Apr. 2,
2020).
In November 2019, Bellevue filed this petition to “[q]uiet title to the land”
underneath McMillan Lane “by declaring that [Bellevue] has an easement in the
form of a private right of access over same” pursuant to RSA 231:43, III. 13
Green Street moved to dismiss, arguing that Bellevue cannot assert a statutory
right of access under RSA 231:43, III because its property does not directly
abut McMillan Lane. The trial court agreed with 13 Green Street and
dismissed Bellevue’s petition. This appeal followed.
II. Analysis
Determining whether Bellevue may claim a statutory right of access
pursuant to RSA 231:43, III is a matter of statutory construction. We review
the trial court’s statutory interpretation de novo. In re A.D., 172 N.H. 438, 441
(2019). When interpreting statutes, we ascribe the plain and ordinary
meanings to the words used. Id.RSA 231:43, III provides, “No owner of land shall, without the owner’s
written consent, be deprived of access over [a discontinued class IV, V, or VI]
highway, at such owner’s own risk.” RSA 231:43, III (2009). The trial court
interpreted the statute as limiting the right of access only to owners of land
that directly abut a discontinued highway. The court determined that Bellevue
had no statutory right of access over McMillan Lane because its property does
not directly abut that road. Bellevue argues that in so ruling, the trial court
erred. Bellevue contends the plain language of the statute extends to an
“owner of land.” Id. Alternatively, Bellevue asserts, even if a statutory right of
access is limited to those with land abutting the discontinued highway,
Bellevue is an abutter either because the trial court classified it as such in a
prior case or because its property is directly across the street from McMillan
Lane. See RSA 672:3 (2016) (defining “abutter” for the purposes of providing
statutory notice of zoning board proceedings as “any person whose property . . .
adjoins or is directly across the street . . . from the land under consideration”).
We conclude that even under Bellevue’s preferred interpretation, Bellevue
has no right of access under RSA 231:43, III because, as a matter of law, such
a right is not “reasonably necessary for ingress and egress” to its property.
Shearer v. Raymond, 174 N.H. 24, 37 (2021) (describing the common law
easement that exists over a highway discontinued before RSA 231:43, III was
enacted). Thus, we uphold the trial court’s decision on alternative grounds.
See Sherryland v. Snuffer, 150 N.H. 262, 267 (2003) (“When a trial court
reaches the correct result, but on mistaken grounds, this court will sustain the
decision if there are valid alternative grounds to support it.”).
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Although, as Bellevue contends, the statute refers to an “owner of land,”
the phrase “deprived of access” limits the right to landowners for whom the
discontinued highway provides access to their property. RSA 231:43, III. The
plain meaning of the word “access” as used in the statute is “[t]he means,
place, or way by which a thing may be approached; passageway; as, the access
is by a neck of land.” Webster’s New International Dictionary 14 (2d
unabridged ed. 1948). The statute gives landowners for whom the
discontinued highway is a means by which they access their property a right to
continue to use the highway. If obstructing a discontinued highway deprives
an “owner of land” of “access” to that owner’s property, then the statute
protects the owner by ensuring that the owner retains the right to use the
highway as a means of access to the land. RSA 231:43, III.
The phrase “deprived of access” could be interpreted to mean that an
owner of land cannot be deprived of use of the discontinued highway to access
the owner’s land, even if the route over the discontinued highway is one of
many routes providing access thereto. However, such an interpretation could
render the statute unconstitutional, and we must construe a statute “to avoid a
conflict with constitutional rights whenever reasonably possible.” Appeal of
Public Serv. Co. of N.H., 122 N.H. 919, 922 (1982).
Private property ownership rights are fundamental rights under the New
Hampshire Constitution. Merrill v. City of Manchester, 124 N.H. 8, 14-15
(1983). “‘Property,’ in the constitutional sense, is not the physical thing itself
but is rather the group of rights which the owner of the thing has with respect
to it.” Burrows v. City of Keene, 121 N.H. 590, 597 (1981). “The term refers to
a person’s right to possess, use, enjoy and dispose of a thing and is not limited
to the thing itself.” Id. (quotation omitted). A property owner’s right to use the
owner’s property “necessarily includes the right to exclude others from using
[it], whether it be land or anything else.” Id. (quotation and ellipsis omitted).
Although an owner has an “important property right” to “have reasonable
access for ingress and egress,” Shearer, 174 N.H. at 34, that right must be
balanced against the property rights of persons who own the land underneath
the discontinued highway. See id. at 30 (explaining that when a public
highway is laid out, generally, the land underneath it remains in the
possession of the fee owner subject to the public easement). If we were to
construe RSA 231:43, III to provide any owner of land with a right to use a
discontinued highway, even if the highway is one of many ways of accessing
the owner’s property, the statute would unnecessarily infringe upon the real
property rights of the owners of the land underlying the discontinued highway.
See Burrows, 121 N.H. at 597. To avoid conflict with constitutional rights, the
statute must be construed so as to infringe upon the fundamental property
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rights of the owners of the land underneath the discontinued highway only to
the extent necessary to protect the fundamental property rights that other
landowners may have to access their property.
Consistent with the plain meaning of the statutory language and with
our obligations to construe the statute as constitutional, we conclude that the
phrase “deprived of access” refers to a landowner’s reasonable means of ingress
and egress. Thus, under the statute, a right of access over a discontinued
highway does not exist unless it is reasonably necessary for a landowner’s
ingress and egress.
We note that our construction of the statute is consistent with the
common law. In Shearer, we recognized that, at common law, “a landowner
whose property ha[d] no frontage on a public highway ha[d] an easement over
an abutting discontinued highway to access the landowner’s property” provided
that the easement was “reasonably necessary for ingress and egress.” Shearer,
174 N.H. at 32, 37. The landowner in Shearer owned property that lacked
frontage on Whipple Hill Road, a public highway, and abutted Bowker Road, a
public highway that had been discontinued in 1898. Id. at 27. Because
Bowker Road had been discontinued long before 1943, when the legislature
first codified a right of access over discontinued highways, see Laws 1943,
68:2, we had to decide whether a right of access had existed at common law.
Shearer, 174 N.H. at 31, 32.
We explained that “to have reasonable access for ingress and egress” is
“an important property right,” incidental to land ownership. Id. at 34. We held
that “[b]ecause, absent a statutory right of access as first codified in 1943, the
discontinuance of a highway could leave a landowner without reasonable
means to access the property, . . . an easement exists over a discontinued
highway when the easement is reasonably necessary for access.” Id. We
further held that a landowner need not show that the landowner has “no other
means of access” to establish that an easement over a discontinued highway is
“reasonably necessary for ingress and egress.” Id. at 33, 37. Rather, the
landowner need show only that “the alternative access imposed measurable
hardship that was unreasonable under the circumstances.” Id. at 33
(quotation omitted).
Whether an easement is reasonably necessary for ingress or egress
presents a question of fact. Id. We similarly conclude that whether a statutory
right of access is reasonably necessary for ingress or egress presents a
question of fact.
In Shearer, we vacated the trial court’s ruling that the plaintiff had a
common law easement across the defendants’ property to access his property
and remanded for the court to determine, in the first instance, whether such
an easement was “reasonably necessary for ingress or egress to his land.” Id.
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at 28-29, 37. In this case, we need not remand for the trial court to make the
determination in the first instance because we may decide the issue as a
matter of law based upon the undisputed facts and the record before us. See
Augur v. Town of Strafford, 158 N.H. 609, 614 (2009) (“Ordinarily, we will
remand unresolved factual issues for analysis . . . , unless the record reveals
that a reasonable fact finder necessarily would reach a certain conclusion, in
which case we may decide the issue as a matter of law.”).
Here, as a matter of law, the alternative access does not impose
“measurable hardship” on Bellevue “that [is] unreasonable under the
circumstances.” Shearer, 174 N.H. at 33 (quotations omitted). Even without
McMillan Lane, Bellevue has ample access to its property from Route 302 via a
private road, which connects to the private section of Common Court, and from
North-South Road via a public road that connects to the public section of
Common Court. Bellevue Props., 173 N.H. at 512. A recorded easement allows
Bellevue to travel over the private road and the private section of Common
Court to access its property. Id. Moreover, the new private road (that has yet
to be constructed) will, like McMillan Lane, enable public access to Bellevue’s
property from Route 302 to the public section of Common Court via Barnes
Road. Id. And as explained above, the planning board has required 13 Green
Street to “substantially complete and open to public use” the new road “prior to
closure of McMillan Lane.” Id. at 514. Under these circumstances, as a matter
of law, even without McMillan Lane, Bellevue has “adequate and reasonable”
access to its property. Mason v. State, 656 P.2d 465, 469 (Utah 1982)
(quotation omitted), superseded by statute as stated in Falula Farms, Inc. v.
Ludlow, 866 P.2d 569, 571-72 (Utah Ct. App. 1993); see Shearer, 174 N.H. at
32-33 (citing Mason with approval). Therefore, as a matter of law, a right of
access over McMillan Lane is not reasonably necessary for Bellevue’s ingress
and egress to its property. Accordingly, we uphold the trial court’s
determination that Bellevue cannot assert a statutory right of access over
McMillan Lane pursuant to RSA 231:43, III.
Affirmed.
HICKS, HANTZ MARCONI, and DONOVAN, JJ., concurred.
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