Bourne v. Town of Madison

• Decision Date: 29 June 2007
• Docket Number: Civil No. 05-cv-365-JD.
• Parties: Samuel J. BOURNE v. TOWN OF MADISON et al.
• Court: U.S. District Court — District of New Hampshire

494 F.Supp.2d 80

2007 DNH 084

Samuel J. BOURNE v. TOWN OF MADISON et al.

Civil No. 05-cv-365-JD.

United States District Court, D. New Hampshire.

June 29, 2007.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Gerald F. Williamson, Law Office of Gerald F. Williamson, Brockton, MA, Rachel A. Hampe, Thomas J. Donovan, McLane Graf Raulerson & Middleton, Manchester, NH, for Samuel J. Bourne.

Brian J.S. Cullen, Catherine M. Costanzo, Devine Millimet & Branch PA, Manchester, NH, Richard D. Sager, Sager & Wunder, Ossipee, NH, for Town of Madison, Board of Selectmen Madison, John R. Arruda, Jr., Clifford A. Graves, Eileen T. Crafts, Robert D. King.

ORDER

DiCLERICO, District Judge.

Plaintiff Samuel J. Bourne sued the town of Madison, New Hampshire; its board of selectmen, John Arruda, Clifford Graves, and Eileen Crafts, each individually and in their official capacity; and Robert D. King, a Madison resident who had served on the town's road study committee in 1998, alleging that they violated state law and deprived him of his constitutional rights. All of the alleged violations arose from a land use dispute between Bourne and the town concerning an unpaved access road leading onto Bourne's property in Madison.¹ At the core of the dispute is Bourne's desire to prevent public traffic — viz., snowmobile traffic — on the access road, which the town claims is a public road.

The defendants move for summary judgment and Bourne objects. After Bourne filed his objection, the court granted, in part, Bourne's motion to amend the complaint and permitted both parties to file supplemental memoranda with regard to the defendants' summary judgment motion. See Order of December 5, 2006 (document no. 33).

In response to an order to show cause, the defendants also filed a motion to dismiss or to stay adjudication of Bourne's claims pending the resolution of related state proceedings in the Carroll County Superior Court. During a telephonic scheduling conference, the parties agreed to a stay of the trial in this case pending a final judgment by the state court. See Order of May 3, 2007 (document no. 93). The parties further agreed that the court should proceed to rule on any pending motions and the court accordingly ruled on the parties' respective motions in limine. See Order of May 9, 2007 (document no. 95). The court now considers the defendants' motion for summary judgment, Bourne's objection, and the parties' supplemental memoranda.

I. Background

Bourne, a resident of Massachusetts, retained a real estate agent in New Hampshire in the summer of 2002 for the purpose of finding a wooded lot on which to build a family vacation home. Bourne found a fifty-acre tract with a small preexisting cabin in the town of Madison in Carroll County. The property is accessible by an unpaved road, called "Solomon Harmon Road," that connects with East Madison Road on its north end. The southern side of the Bourne property abuts a large conservation parcel known as the "McNair property," on which the town permits snowmobile use.

Before Bourne purchased the property, his real estate agent informed him that Madison has historically considered Solomon Harmon Road to be a class VI highway under state law.² Earlier in the year, the town had adopted a regulation authorizing the use of snowmobiles on certain class VI roads, including Solomon Harmon Road. The town maintains that an easement that runs concurrently with the road and that was granted to the town in the 1970s, extends a north-south public trail from East Madison Road to the McNair property.

Before Bourne completed purchase of the fifty-acre lot, he was informed by the town administrator that, to obtain a building permit, he would first need to execute a waiver agreement relieving the town from maintenance responsibilities and from liability with respect to travelers on Solomon Harmon Road. A standard form waiver agreement was faxed to Bourne. He forwarded the agreement to his attorney who revised it by adding two terms favorable to Bourne: (1) that the public could not use the stretch of Solomon Harmon Road on his property, (with exceptions for police and fire emergencies), and (2) that the town "would never reclassify Solomon Harmon Road" without Bourne's consent. First Bourne Aff., Ex. 4.

Bourne mailed the "revised waiver" back to the selectmen with a cover letter. The parties dispute the substance of the cover letter and have each submitted what they claim to be the cover letter received by the selectmen on August 26, 2002. Bourne's version of the cover letter specifically requests the selectmen to "review" the "revised" waiver agreement. First Bourne Aff., Ex. 5. The cover letter produced by the town makes no mention of any revisions to the agreement and does not invite the selectmen to review it. Arruda Aff., Ex. 4. The defendants contend that the selectmen assumed that Bourne had simply signed the standard form waiver without change. The selectmen admit that they did not read the revised waiver before they signed and notarized it on August 28, 2002. Two days later, it was recorded at the Carroll County Registry of Deeds, and on September 30, 2002, Bourne completed purchase of the fifty-acre lot,

Bourne then erected a chain across Solomon Harmon Road at the entrance to his property. Robert Babine, the Madison code enforcement officer, learned of the chain and removed it. After Bourne complained to the town about the removal of his chain, Selectman John Arruda discovered that the executed waiver agreement was not the standard form waiver. Arruda sent Bourne a letter stating that the revised waiver was "invalid" because the selectmen lacked the authority to restrict public access to a town road without convening a town meeting. Arruda stated that if Bourne wanted a building permit, "it would be in [his] best interest to sign the attached [standard form waiver] agreement." First Bourne Aff., Ex. 7.

Undeterred, Bourne hired a contractor to install a gate across Solomon Harmon Road in early November 2002. Bourne's attorney told Bourne that counsel for the town had agreed that he could install a gate so long as it was held open at all times. Nevertheless, while Bourne's contractor was in the process of pouring a foundation for the gate, Babine approached him and told him that the town would remove any gate erected across the road. Bourne's contractor completed the installation.

On November 11, 2002, Robert King sent a memorandum to the board of selectmen with the subject heading: "Granting of building permits on Solomon Harmon Road and other Class VI roads." Id., Ex. 13. King had served on the 1998 Madison Class VI Road Study Committee that had created a report identifying Solomon Harmon Road as a class VI road. In his November 11 memorandum, King advised the selectmen concerning the town's dispute with Bourne. He stated that the revised waiver was invalid and that the selectmen should endeavor to have a new agreement executed and recorded to "cancel[] out the existing agreement." Id. He also recommended that the town remove Bourne's newly erected gate. Anticipating a lawsuit, King suggested that the town's defense should be "to show that the unlawful provisions were originated and sneaked into the [revised waiver] by the Bournes, [sic] not by the Selectmen, and that accordingly it is they, not the Selectmen, who caused the agreement to be legally invalid." Id.

The following day, Babine denied Bourne's application for a building permit citing five reasons: the revised waiver was void, Bourne's application did not show the location of the new house in relation to the land in "current use,"³ the application did not indicate the set-backs from the class VI road, construction of a second dwelling would violate a zoning ordinance, and Bourne needed approval from the State Wetlands Bureau. Babine Aff., Ex. 1.

On November 25, town counsel sent a letter to Bourne's attorney stating, inter alia, that Bourne would need to either remove his gate or position it in such a way that it is always open. The letter stated that if he refused to comply by December 1 the town would remove the gate. The letter also accused Bourne's attorney of "hiding" her involvement in revising the waiver agreement and of "sandbagging" the town by submitting the revised waiver without a cover letter alerting the selectmen to the changes. First Bourne Aff., Ex. 15. The town removed the gate on December 4.

On January 10, 2003, the town filed suit in Carroll County superior court seeking rescission of the revised waiver and an injunction to prevent Bourne from interfering with the public's access to Solomon Harmon Road. At the injunction hearing, the town produced its version of Bourne's August 26, 2002, cover letter. Bourne thereafter filed a petition with the superior court accusing the town of forging the cover letter. Bourne asked the superior court to uphold the revised waiver and to order the town to issue a building permit.

Before the superior court could rule, Arruda approached Bourne with a settlement proposal. He told Bourne that if he signed a new waiver agreement, the town would drop its lawsuit and grant him a building permit. According to Bourne,

Arruda also promised that, following a hearing, the selectmen would be able to relocate the public trail to the outside perimeter of the Bourne property so that public use of the trail would not interfere with his use and enjoyment of the property. Bourne accepted Arruda's offer.⁴

On April 12, 2003, Bourne signed a new waiver (the "second waiver"), which stated that it "supersede[s] an agreement dated August 28, 2002, recorded on August 30, 2002, at the Carroll County Registry of Deeds ..., which parties agree is void as ultra vires." Defense Counsel Aff., Ex. 4. In the second waiver, the town "agreed to issue a building permit for the construction of a residence ... and a license to maintain that portion of Solomon Harmon Road serving as access to the...