Rodgers Dev. Co. v. Town of Tilton

Citation781 A.2d 1029,147 N.H. 57
Decision Date03 October 2001
Docket NumberNo. 99–662.,99–662.
CourtSupreme Court of New Hampshire
Parties RODGERS DEVELOPMENT COMPANY and another v. TOWN OF TILTON and another.

Vittek Law Office, of Franklin (Paul C. Bordeau on the brief, and Joseph F. Vittek, Jr. orally), for plaintiff Rodgers Development Company.

Daniel D. Crean, of Concord, by brief and orally, for defendant Town of Tilton.

Mitchell & Bates, P.A., of Laconia (Walter L. Mitchell on the brief and orally), for intervenor Infinity Sherwood Properties, L.P.

Donahue, Tucker & Ciandella, of Exeter (Robert D. Ciandella and Robert M. Derosier on the brief, and Mr. Ciandella orally), for intervenor Market Basket, Inc.

Cleveland, Waters and Bass, P.A., of Concord (David W. Rayment and William B. Pribis on the brief), for Wal–Mart Stores, Inc., as amicus curiae.

DUGGAN, J.

The plaintiff, Rodgers Development Company (Rodgers), and intervenor Infinity Sherwood Properties, L.P. (Infinity) appeal the order of the Superior Court (McHugh , J.) affirming the decision of the Tilton Board of Selectmen conditionally laying out two roads across their property. See RSA 231:34 (1993). We affirm.

The following facts were found by the trial court or appear in the record before us. Rodgers, Infinity and intervenor Market Basket, Inc. (Market Basket) own abutting property in the commercial district of the defendant, Town of Tilton (town), in the vicinity of Route 3 and Exit 20 of Interstate 93. Infinity leases its property to Wal Mart Stores, Inc. (Wal Mart), which maintains a Wal Mart store thereon. In conjunction with its plans to open a large supermarket on its property, Market Basket petitioned the selectmen for conditional layout of two roads on existing rights-of-way over land owned by Rodgers and Infinity. See RSA 231:8,:23 (1993). The proposed layout included widening both roads and converting them to class V highways. The layout also included the elimination of one entrance into the Wal Mart parking lot on Infinity's property and the modification of a portion of its approved parking lot design. The layout was conditioned upon Market Basket's assumption of the costs of road construction and associated damages and improvements.

After a hearing, the selectmen granted the conditional layout. Rodgers appealed to the superior court, see RSA 231:34, and Infinity intervened on its side. Market Basket intervened on the town's behalf.

After a view and a two-day evidentiary hearing, the court affirmed the board's conditional layout. Rodgers and Infinity (hereinafter the landowners) then appealed to this court.

The landowners argue that the trial court erred in: (1) improperly concluding that there was "occasion" to lay out the roads, see RSA 231:8 ; (2) failing to consider the case de novo , see V.S.H. Realty, Inc. v. City of Manchester , 123 N.H. 505, 508, 464 A.2d 1111 (1983) ; and (3) unconstitutionally taking their property for the primary benefit of a private party, see N.H. CONST., pt. I, art.

We first consider whether the court properly concluded that there was occasion to lay out the roads in question as required by RSA 231:8. That statute provides:

Selectmen 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.

The question of what constitutes occasion to lay out roads has engaged our attention for nearly two hundred years. Indeed, we considered the question settled in 1832, when we decided Dudley v. Cilley , 5 N.H. 558, 560 (1832). Since that time, however, the language we have used to analyze whether occasion exists has varied. In cases in which subtle distinctions were not at issue, we have used different terms to describe our consideration of the same basic question-referring variously to the "need," "necessity," "exigency," "convenience," and "interest" of the public, and balancing those public considerations in various ways against the rights of the affected landowners and the burden of the layout on the town. Compare Dudley , 5 N.H. at 560–61, with Wolfeboro Neck Prop. Owners Assoc. v. Town of Wolfeboro , 146 N.H. 449, ––––, 773 A.2d 633, 635 (2001). The case before us is the first in many years involving landowners' objection to a proposed layout. Because such a case implicates all of the factors involved in the occasion analysis, it offers an opportunity to clarify the factors and the balancing process.

Determining whether occasion exists is a two-step process. See Dudley , 5 N.H. at 560–61; Wolfeboro , 146 N.H. at ––––, 773 A.2d at 635. The first step is to balance the public interest in the layout against the rights of the affected landowner. See Dudley , 5 N.H. at 560–61. If the rights of the affected landowner outweigh the public interest in the layout, the layout is not justified and there is no occasion for it. If, however, the public interest justifies the taking of the land without the landowner's consent, the second step is to balance the public interest in the layout against the burden it imposes upon the town. See id. If the balancing required by the second step favors the public interest, occasion for the layout exists.

The public interest in question encompasses a spectrum of levels of necessity ranging from "exigency," Dudley , 5 N.H. at 561, meaning "urgency," Webster's Third New International Dictionary 796 (unabridged ed.1961), to mere "convenienc[e]," Dudley , 5 N.H. at 561, and encompassing such intermediary levels of requirement as "need," Rockhouse Mt. Property Owners Assoc. v. Town of Conway , 133 N.H. 130, 133–34, 574 A.2d 380 (1990), and "necessity," Jackson v. Ray , 126 N.H. 759, 762, 497 A.2d 1191 (1985). Because the analysis involves balancing, the extent of the necessity for the layout will determine the weight attributed to the public interest. Thus, an exigent need for a road's layout may justify a significant invasion of the rights of the landowner, while a layout proposed for mere convenience may justify only a slight imposition on those rights.

We now consider the case at hand in light of this standard, mindful that "[t]he superior court's conclusion that occasion exists for the public layout of roads must be supported by some evidence,’ and we will not disturb its determination in the absence of gross mistake or fraud." Rockhouse , 133 N.H. at 134, 574 A.2d 380 (citation omitted); see Wolfeboro , 146 N.H. at ––––, 773 A.2d at 635.

The superior court assessed the public interest in the proposed layout in terms of an enhanced tax base, additional jobs, increased competition among grocers, keeping large commercial development in a particular section of town and the inability to develop this particular parcel for high-traffic retail use absent the layout. On the other side of the scales, the court considered the impact of the layout on the rights of the landowners, including the possibility that Wal Mart might use the reconfiguration of its entrances and parking lot as an excuse to abandon its lease with Infinity. Notwithstanding that possibility, the court concluded, and evidence in the record supports, that, on the whole, the proposed layout actually benefited the landowners rather than burdening them because it was conducive to future development of their property. Thus, the first step in the occasion analysis involved weighing a public interest that was more than mere convenience, but less than exigency, against virtually no imposition on the rights of...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT