Bellevue Properties, Inc. v. Town of Conway & a.

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THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
Carroll
No. 2019-0302
BELLEVUE PROPERTIES, INC.
v.
TOWN OF CONWAY & a.
Argued: May 27, 2020
Opinion Issued: August 25, 2020
Bernstein, Shur, Sawyer & Nelson, P.A., of Manchester (Roy W. Tilsley,
Jr. and Christina A. Ferrari on the brief, and Mr. Tilsley orally), for the plaintiff.
Hastings Malia P.A., of Fryeburg, Maine (Peter J. Malia, Jr. on the brief
and orally), for defendant Town of Conway.
Sulloway & Hollis, P.L.L.C., of Concord (Derek D. Lick orally), for
defendants 13 Green Street Properties, LLC, 1675 W.M.H., LLC, and Settlers’
R2, Inc., joined in the brief of Town of Conway.
DONOVAN, J. The plaintiff, Bellevue Properties, Inc., appeals an order of
the Superior Court (Ignatius, J.), affirming the Town of Conway’s decision to
discontinue a public way that provides access to the plaintiff’s property. The
plaintiff argues that the trial court applied an incorrect legal standard to
evaluate the Town’s decision and erred in concluding that the Town’s interests
in discontinuing the road outweighed the plaintiff’s interest in its continuance.
Because the trial court applied the proper legal standard and its decision is
supported by the record, we affirm.
I. Facts
The trial court found, or the record supports, the following facts. The
plaintiff owns and operates a hotel located in North Conway. The hotel
property abuts a retail village known as Settlers’ Green, which is owned and
operated by defendants 13 Green Street Properties, LLC, 1675 W.M.H., LLC,
and Settlers’ R2, Inc. (collectively, “Settlers”). The hotel and Settlers’ Green are
located between United States Route 302/New Hampshire Route 16 (Route
302) and North-South Road, which run parallel to each other. A road named
Common Court encircles the hotel and much of Settlers’ Green, providing
access to the properties. Approximately half of Common Court is privately
owned and maintained by Settlers, whereas the other half is public, owned and
maintained by the Town.
The public can access the hotel in three ways: (1) from Route 302 by
turning onto Settlers’ Green Drive, a private road owned and maintained by
Settlers, which connects to the private section of Common Court; (2) from
Route 302 by turning onto Barnes Road, a public road, and then onto McMillan
Lane, which connects to the public section of Common Court; and (3) from
North-South Road by turning onto Fairway Lane, a public road that connects
to the public section of Common Court. A recorded easement allows hotel
guests to travel over Settlers’ Green Drive and the private section of Common
Court. Although the hotel itself is not visible from Route 302, two pylon signs
for the hotel are located at the intersection of Route 302 and Settlers’ Green
Drive. A sign for the hotel is also located in the area of Common Court and
Fairway Lane, near North-South Road. To reach the hotel, most of its guests
turn onto Settlers’ Green Drive from Route 302.
As part of its retail village, Settlers planned to construct a mixed-use
development, including a supermarket and parking lot on an undeveloped
parcel of land, known as Lot 92 on the Town of Conway tax map, and another
lot that abuts Lot 92’s western boundary, both of which Settlers owns.
McMillan Lane, however, runs through portions of both lots along Lot 92’s
western boundary. To enable it to construct a single, continuous development
across both lots, Settlers sought to remove McMillan Lane and replace it with a
newly constructed road along Lot 92’s eastern boundary. Like McMillan Lane,
the new road would run from Barnes Road to the public section of Common
Court. Settlers planned to build the new road at its own expense and would
construct sidewalks, bike paths, and other amenities along the road, similar to
its other private roads.
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Accordingly, in October 2016, Settlers submitted a subdivision
application to the Town’s planning board, seeking to create a parcel of land
within Lot 92 that runs along its eastern boundary, which would serve as the
new road. Settlers, however, was concerned about moving forward with its
planning board application without assurance that the Town would
discontinue McMillan Lane, which required a town vote. See RSA 231:43, I
(Supp. 2019). While the subdivision application was pending, representatives
from Settlers met with officials from the Town, including the town engineer, the
town planning director, and the town manager, to discuss the development
plan. The town engineer suggested that the Town first obtain the voters’
approval to discontinue McMillan Lane. It was agreed that, if that occurred,
Settlers would maintain McMillan Lane and keep it open to the public until
Settlers received planning board approval for the new road and completed
construction of it. Under this plan, the new road would remain privately
owned and maintained by Settlers, but it would be open to the public.
Subsequently, the Town’s attorney drafted a proposed warrant article
and the Town’s board of selectmen voted unanimously to recommend the
article for consideration at the next town meeting. The Town notified the
plaintiff of the warrant article, as required by RSA 231:43, II (Supp. 2019).
In February 2017, the Town issued a public notice for the upcoming
deliberative town meeting, which included the following warrant article
regarding McMillan Lane:
ARTICLE 27: To see if the Town will vote to discontinue completely
and absolutely an 870 foot long Town road known as McMillan
Lane. The road to be discontinued is described as follows: The
two-lane road beginning at the intersection of Barnes Road and
ending at the Common Court intersection. Discontinuance is
conditioned on the road being open, maintained, and unmodified
by the owners of the abutting parcels to which the road would
revert 13 Green Street Properties, LLC, 1675 W.M.H., LLC, and
Settlers’ R2, Inc. and their successors, (informally known as
Settlers OVP) until such time as Settlers OVP has obtained Site
Plan Review and/or Subdivision approval from the Conway
Planning Board to eliminate McMillan Lane and to construct and
complete, if found necessary by the Planning Board, an alternative
road prior to closing McMillan Lane.
On March 6, the Town held its deliberative town meeting, where
residents raised two primary concerns with the warrant article. First, some
residents expressed concern that the article provided no requirement that
Settlers create a replacement road. Second, because the article contained no
language restricting the location of a replacement road, residents expressed
concern that the new road would connect directly to North-South Road, a
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street constructed to alleviate traffic on Route 302. To address these concerns,
the residents voted to amend the warrant article by: (1) removing the language
“if found necessary by the Planning Board”; and (2) adding after the phrase “to
eliminate McMillan Lane,” the condition “and shall construct and complete an
alternate road with no new egress to the North-South Road prior to closing
McMillan Lane.”
Thereafter, at the annual meeting on April 11, the article was adopted.
See RSA 231:43, I. At no time during the deliberative process did the Town
hear from the plaintiff regarding the impact of the discontinuance on the hotel.
After the adoption of the warrant article, McMillan Lane was
conditionally discontinued and the Town ceased maintaining it. See RSA
231:50 (2009). Since then, Settlers has taken control of McMillan Lane by,
inter alia, maintaining the road with the same consistency as it maintains
Settlers’ Green Drive and the private section of Common Court. Settlers has
also kept McMillan Lane open to the public.
The plaintiff appealed the Town’s decision to discontinue McMillan Lane
to the superior court, see RSA 231:48 (Supp. 2019), requesting that the court
reverse the Town’s decision. In November 2018, while that appeal was pending
in the trial court, the Town’s planning board conditionally approved a site plan
and boundary line adjustment application submitted by Settlers, allowing
Settlers to construct the new road. As a condition subsequent to its final
approval, the planning board required Settlers to “substantially complete and
open to public use” the new road “prior to closure of McMillan Lane.” (Bolding
omitted.)
Following a bench trial, the court affirmed the Town’s decision to
discontinue McMillan Lane. Based upon the evidence presented at trial, the
court found that the discontinuance of McMillan Lane will result in the Town
saving approximately $7,821 per year in maintenance costs, will allow the
development of a parcel of land “consistent with Conway’s town plan,” and will
bring economic benefits and additional housing to the community. The trial
court further noted that the new road will “serve the same purpose as McMillan
Lane has done for Conway residents to avoid traffic congestion along Route
302” because the Town’s authorization for the discontinuance required Settlers
to keep the new road open to the public. Based upon these factors, the trial
court found that “the benefits to Conway of discontinuing McMillan Lane
outweigh [the plaintiff’s] interests in” its continuance.
The trial court rejected the plaintiff’s argument that the discontinuance
of McMillan Lane would cause harm to the plaintiff’s business interests by
depriving it of a public road and requiring that it rely upon Settlers, a private
entity, to maintain and provide public access to the new road. The trial court
concluded that any “potential harm” that might result from the discontinuance
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was “too uncertain to outweigh Conway’s interests in discontinuing McMillan
Lane,” finding that Settlers has never failed to maintain the private section of
Common Court or Settlers’ Green Drive and that no evidence suggests that
Settlers or its successors would cease doing so. The trial court also noted that
the discontinuance of McMillan Lane would not impact the ability of the hotel’s
guests to access the hotel using other routes.
The plaintiff filed a motion for reconsideration, which the trial court
denied. This appeal followed.
II. Analysis
On appeal, the plaintiff makes two primary arguments. First, it argues
that the trial court applied an incorrect legal standard to evaluate the decision
to discontinue McMillan Lane — specifically, that the trial court utilized a
balancing test that was inconsistent with the balancing test we set forth in
Town of Hinsdale v. Town of Chesterfield, 153 N.H. 70, 73-74 (2005). Second,
the plaintiff argues that the trial court erroneously concluded that the Town’s
interests in discontinuing the road outweighed the interests of the plaintiff and
the public in the road’s continuance. We first address the plaintiff’s argument
challenging the legal standard applied by the trial court.
A. Legal Standard
Because the trial court’s decision to apply a particular legal standard is a
question of law, we review the decision de novo. See Town of Hinsdale, 153
N.H. at 72. Moreover, to the extent that this appeal requires that we engage in
statutory interpretation, our review is also de novo. Balise v. Balise, 170 N.H.
521, 524 (2017). In matters of statutory interpretation, we are the final arbiter
of legislative intent as expressed in the words of the statute considered as a
whole. Id. We first examine the language of the statute and ascribe the plain
and ordinary meanings to the words used. Id. We interpret legislative intent
from the statute as written and will not consider what the legislature might
have said or add language that the legislature did not see fit to include. Id.Unless we find statutory language to be ambiguous, we need not examine
legislative history. See id.RSA 231:48 governs appeals from the discontinuance of a public way. It
provides, in relevant part:
Any person or other town aggrieved by the vote of a town to
discontinue any highway . . . may appeal therefrom to the superior
court for the county in which such highway is situate by petition
within 6 months after the town has voted such discontinuance. . . .
[L]ike proceedings shall be had on such petition as in the case of
appeals in the laying out of class IV, V and VI highways.
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We have held that the statute “plainly requires that appeals of the
discontinuance of any highway should proceed similarly to appeals of the
laying out of such a highway.” Town of Hinsdale, 153 N.H. at 72-73.
Therefore, like appeals of a town’s decision to lay out a highway, an appeal of a
town’s decision to discontinue a highway receives de novo review by the
superior court. See id. at 73; Rodgers Dev. Co. v. Town of Tilton, 147 N.H. 57,
61 (2001) (explaining that, in an appeal of a town’s decision to lay out a
highway, the superior court reviews the town’s decision de novo).
However, “[a]lthough RSA 231:48 provides for like proceedings, the
statute does not set forth the substantive legal standard to apply in
discontinuance appeals.” Town of Hinsdale, 153 N.H. at 73. In Town of
Hinsdale, we addressed, for the first time, the substantive legal standard to be
applied to discontinuance appeals. See id. at 73-74. There, the Town of
Hinsdale appealed the Town of Chesterfield’s decision to discontinue a portion
of a highway that extended into both towns. See id. at 71. The trial court
reversed Chesterfield’s decision, concluding that the numerous negative
consequences that resulted from the discontinuance — including the
elimination of access to the only reasonable route for Hinsdale residents to
reach a main highway and to escape from potential disasters in the area —
outweighed Chesterfield’s burden of maintaining that discontinued portion of
the highway. See id. at 71, 74-75. On appeal, Chesterfield argued that the
trial court applied an incorrect legal standard. Id. at 72.
To determine the proper standard, we “consider[ed] the policy sought to
be advanced by the statutory scheme.” Id. at 73. We first reasoned that,
because the legislature “manifested an intent to protect the interests of
adjoining towns” by requiring notice to adjoining towns of the discontinuation,
see RSA 231:44 (2009), “the legal standard in this case must consider the
interest that an aggrieved town has in continued use of the highway.” Town of
Hinsdale, 153 N.H. at 73. As for the town that voted to discontinue the
highway, we noted that we have previously recognized the burden of
maintaining a highway as a “significant consideration for a town in deciding
whether or not to discontinue the highway.” Id. at 73-74; see New London v.
Davis, 73 N.H. 72, 74 (1904). Thus, we also reasoned that “the legal standard
in this case must also consider the burden that the appellee town would bear
in continuing the road.” Id. at 74. Based upon these considerations, we
concluded that the standard “in this case balances the aggrieved town’s
interest in the road’s continuance against the burden that maintenance of the
road would impose on the town that voted to discontinue the road,” and upheld
the trial court’s decision under that standard. Id. at 74-75.
The trial court here correctly noted that we have not yet addressed the
substantive legal standard that applies when, as here, an appeal of a public
highway discontinuance is brought by an abutting property owner, rather than
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an abutting town. Nevertheless, the trial court found that a “similar balancing
test” to that in Town of Hinsdale was appropriate “[b]ecause abutting property
owners are afforded similar statutory protections as adjoining towns, and
because Conway clearly has an interest in the discontinuance of McMillan
Lane.” However, the trial court determined, based upon the language of RSA
231:43, I, that “a town’s statutory authority to discontinue roads need not be
premised solely upon reduced maintenance costs.” The trial court therefore
determined that it would consider the Town’s “other interests in discontinuing
McMillan Lane,” in addition to the burden of maintaining the road, and
“balance Bellevue’s interests in the road’s continuance against Conway’s
interests in discontinuing the road.”
The plaintiff does not contend that the trial court erred in utilizing the
balancing test in Town of Hinsdale as the substantive legal standard in this
case. Rather, it argues that the substantive legal standard we articulated in
Town of Hinsdale “specifically restricts the trial court’s consideration of a
Town’s interest to the burden that maintenance of the road would impose on
the Town.” The plaintiff contends that the trial court erred in considering the
Town’s other interests in the road’s discontinuance, rather than limiting its
analysis to the burden of maintaining the road. We disagree.
RSA 231:43, I, authorizes a town to discontinue a class IV, V, or VI
highway. As relevant here, it provides, simply, that “[a]ny class IV, V or VI
highway, or any portion thereof, in a town may be discontinued by vote of a
town.” RSA 231:43, I. Accordingly, the statute does not “specifically require
that there be any particular grounds to justify discontinuance.” 16 Peter J.
Loughlin, New Hampshire Practice: Municipal Taxation and Road Law § 54.04,
at 54-7 (2008); see RSA 231:43, I. Thus, it follows that, when the town’s
decision to discontinue a highway is based upon other interests, in addition to
the interest in alleviating the burden of maintenance, the trial court may
consider those interests in reviewing the town’s decision. See Town of
Hinsdale, 153 N.H. at 73-74.
Our articulation of the balancing test in Town of Hinsdale implicitly
recognized this principle. See id. In determining the proper legal standard, we
characterized the burden of maintaining a highway — the only factor that
could have reasonably supported Chesterfield’s decision, see id. at 71, 74-75 —
as “a significant consideration” for a town in deciding whether to discontinue a
highway, and determined that the legal standard “in this case must . . .
consider the burden that the appellee town would bear in continuing the road.”
Id. at 74 (emphases added). Thus, while we recognized that the burden of
maintaining a highway was a relevant consideration in evaluating
Chesterfield’s decision to discontinue the highway based upon the specific facts
of the case, we did not state that it was the only factor a town may consider in
every case. See id. We further highlighted the narrow application of the
balancing test to the specific facts of the case when we expressly noted that the
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balancing test was “the substantive legal standard” to be applied “in this case,”
thereby leaving open the consideration of other factors when they are relevant.
Id. at 74 (emphasis added). The plaintiff does not identify, nor can we find, any
language in Town of Hinsdale that restricts a trial court from considering
factors other than the burden of maintenance costs when other considerations
are relevant in evaluating a town’s decision to discontinue a road.1 See id. at
73-74.
In light of the language of RSA 231:43, I, and our articulation of the
balancing test in Town of Hinsdale as applied to that particular case, we
conclude that Town of Hinsdale does not limit a trial court to considering only
the burden of maintenance costs in reviewing a town’s decision to discontinue
a highway. The plaintiff makes no argument that the legal standard set forth
in Town of Hinsdale or the trial court’s consideration of specific interests of the
Town — such as indirect economic benefits that may result from the road
discontinuance — is unconstitutional or otherwise legally erroneous. See N.H.
CONST. pt. I, art. 12-a. Therefore, we conclude that the trial court did not err
when it considered the Town’s other interests in addition to maintenance cost
savings.
B. Balancing the Interests
The plaintiff next argues that, “even if it were appropriate for the trial
court to consider factors in addition to the maintenance burden on the Town,”
the benefits to the Town that would result from the discontinuance of McMillan
Lane do not outweigh the plaintiff’s interest in its continuance. The plaintiff
contends that, because the new road will remain privately owned and
maintained by Settlers, the discontinuance of McMillan Lane as a public road
deprives the plaintiff and its employees, guests, and other invitees of the
“unfettered legal right to access [its] property” from Route 302 “by a legally
protected public way.” Because the Town has no legal obligation to maintain
and provide public access to a private road, the plaintiff argues that it will have
no recourse if Settlers or its successors do not maintain or otherwise deny
access to the road due to the “fail[ure] to act cooperatively and in good faith” or
due to financial failure. The plaintiff contends that, in disregarding the
plaintiff’s concerns about future access as “too uncertain to outweigh Conway’s
interests,” the trial court erroneously overlooked the legal distinction between a
public road and a private road open for public use and the potential negative
consequences that may flow from the new road’s private status.
1 Such a limited scope of review is also contrary to the balancing test that applies to appeals of a
town’s decision to lay out a public highway, see Rodgers Dev. Co., 147 N.H. at 59-60, upon which
we relied, in part, in Town of Hinsdale to determine the proper balancing test, see Town of
Hinsdale, 153 N.H. at 74.
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Our standard of review of a trial court’s decision in a discontinuance
appeal is deferential. See Town of Hinsdale, 153 N.H. at 74. We will uphold
the trial court’s decision in a discontinuance appeal if it is “supported by some
evidence.” Id. (quotation omitted). We will not disturb its determination in the
absence of gross mistake or fraud. Id. The burden of proof rests on the
plaintiff to demonstrate that its interests outweigh those of the Town. See id.
We find the plaintiff’s argument to be unavailing. As an initial matter,
evidence in the record supports the trial court’s conclusion that Settlers will
not cease maintaining the new road or close it to the public. Historically,
Settlers has not failed to maintain and provide public access to Settlers’ Green
Drive or the private portion of Common Court, and, once the Town voted to
discontinue McMillan Lane, Settlers has kept it open to the public and has
consistently maintained it. Indeed, it is in Settlers’ interest to continue to
maintain all of its private roads that provide access to Settlers’ Green,
including the new road, which will abut and provide public access to the
businesses within the retail village. As the principal of Settlers testified,
Settlers believes that the new road is “paramount” to ensure public access to
the development, and that, even if the proposed grocery store failed, Settlers
“would still maintain that road just like” it maintains Settlers’ Green Drive.
Additionally, Settlers’ principal understood the planning board’s site plan
approval to require Settlers to keep the new road open to the public, and that,
if Settlers failed to do so, the planning board could revoke its approval. Thus,
not only does the evidence demonstrate that the plaintiff currently has access
to the now-privately owned McMillan Lane, it shows that this access will
continue given Settlers’ significant business and legal interests in continuing to
keep the new road open to the public and maintained.
Furthermore, although the plaintiff contends that it has no legal recourse
to ensure its access to the new road, the evidence in the record suggests
otherwise. First, although the plaintiff complains that it has not been granted
an easement over the new road, the principal of Settlors provided undisputed
testimony that the plaintiff has never requested an easement, and that, if it
did, Settlers would “be happy to” provide it with one. Second, the trial court
heard testimony from the Town’s planning director that the planning board’s
conditional approval required Settlers to open the new road to the public prior
to closing McMillan Lane. He further testified that, “if there is a violation” of a
requirement set forth in the planning board’s approval, “anybody can bring
that [violation] to the attention of the Town,” which can then “take action on it”
by revoking the certificate of occupancy, obtaining injunctive relief, or imposing
fines. See RSA 676:4-a, I(c) (Supp. 2019), :15 (2016), :17 (2016). The plaintiff
makes no contention that these remedies are unavailable to it should Settlers
fail to maintain or provide access to the new road.
Finally, even if Settlers or its successors failed to maintain or provide
access to the new road — whether due to intentional malfeasance or
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circumstances beyond its control — the plaintiff fails to identify any evidence
demonstrating that the plaintiff would suffer harm as a result. According to
the record, hotel guests can continue to access the hotel from Settlers’ Green
Drive over which the plaintiff holds an easement, and which, unlike McMillan
Lane, connects directly to Route 302 and includes signs for the hotel.
According to the testimony of the plaintiff’s principal, Settlers’ Green Drive,
which he described as the hotel’s “main entrance,” is the primary way in which
guests access the hotel. Hotel guests can also access the hotel from North-
South Road by using Fairway Lane, a public road, where a sign for the hotel
also appears. The plaintiff does not contend, and the record fails to
demonstrate, that these two ways would not provide sufficient access to the
hotel should public access to the new road somehow become restricted. Thus,
based upon the record, it was reasonable for the trial court to give less weight
to the plaintiff’s concerns over future access when balancing the interests of
the parties.
The plaintiff further asserts that, in weighing the interests in favor of the
Town, the trial court considered factors that are not supported by the record.
First, it argues that the record does not support the trial court’s finding that
the new development would provide additional residential housing to the area.
However, even if we accept the plaintiff’s argument and cast aside any
consideration of the addition of residential housing or the other indirect
economic benefits that may flow from the private development, there is still
some evidence in the record to support the trial court’s decision, such as the
public benefits gained by the Town by virtue of: (1) the reduction in yearly
maintenance costs; and (2) the use of a new road, at no cost to the public, to
replace McMillan Lane — an approximately $1 million project, according to
undisputed testimony. See Town of Hinsdale, 153 N.H. at 74. According to the
record, Settlers and the Town agreed that the road would be built to current
standards and would include sidewalks, bike paths, and a 10-foot grass
esplanade, providing a significant upgrade from McMillan Lane, an older road
originally constructed in 1992. The cost-free construction of this new road
with additional amenities and the elimination of the Town’s yearly maintenance
obligations support the trial court’s conclusion that the benefits to the Town of
discontinuing McMillan Lane outweigh the plaintiff’s interests in continuing the
road. Accordingly, even if unsupported by the record, the trial court’s
consideration of residential housing did not constitute “gross mistake or fraud”
in light of the other evidence in the record that supports its decision. See Town
of Hinsdale, 153 N.H. at 74.
Second, the plaintiff argues that the trial court erroneously found that
the new road would revert to the Town when it stated that the road would be
“dedicated to public use.” The plaintiff contends that this statement is a
“faulty finding of fact and of law” that is not supported by the record. As a
legal matter, the dedication of land for public use occurs when an owner
devotes “land to a public use,” which, if accepted by the town, “turns the street
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into a public highway, and thereby renders the accepting . . . town liable for its
construction and maintenance.” Hersh v. Plonski, 156 N.H. 511, 515 (2007)
(quotations omitted). Despite the trial court’s use of this phrase, the trial
court’s findings and rulings demonstrate that it found that Settlers, not the
Town, would be responsible for operating and maintaining the new road upon
its completion. Specifically, in weighing the potential harm to the plaintiff
against the benefits to the Town, the trial court found “no evidence . . . to
suggest that Settlers or its successors will cease to maintain . . . [the new road]
once it is built.” The trial court also considered the amount of yearly
maintenance costs that the discontinuance would save the Town. Thus, the
trial court’s order demonstrates that its use of the phrase “dedicated to public
use” did not constitute a finding that Settlers would legally dedicate the new
road to the Town, but instead, that it would construct and maintain the new
road for public use.
III. Conclusion
We conclude that the trial court applied the proper legal standard in this
case. Furthermore, we conclude that, in applying that legal standard, the
evidence supports the trial court’s determination that the plaintiff failed to
establish that its interests in the continuance of McMillan Lane outweigh the
Town’s interests in discontinuing the road. We therefore uphold the trial
court’s decision affirming the Town’s vote to discontinue McMillan Lane.
Affirmed.
HICKS and HANTZ MARCONI, JJ., concurred.
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