Burgess v. City of Concord, 78-117

• Decision Date: 18 September 1978
• Docket Number: No. 78-117,78-117
• Citation: 391 A.2d 896,118 N.H. 579
• Parties: Wilfred G. BURGESS et al. v. CITY OF CONCORD.
• Court: New Hampshire Supreme Court

Page 896

391 A.2d 896

118 N.H. 579

Wilfred G. BURGESS et al. v. CITY OF CONCORD.

No. 78-117.

Supreme Court of New Hampshire.

Sept. 18, 1978.

Upton, Sanders & Smith, Concord (J. Gilbert Upton, Concord, orally), for plaintiffs.

Paul F. Cavanaugh, City Sol., by brief and orally for the city of Concord.

BOIS, Justice.

Petition for declaratory judgment heard by a Master (Robert A. Carrignan, Esq.). Brock, J., approved the master's recommendation and entered a decree in accordance therewith. The defendant city objected and excepted to the findings, recommendations, and decree of the master as being against the evidence and contrary to law. All questions of law raised by the foregoing exceptions or any exceptions appearing in the transcript or appendix were reserved and transferred by Johnson, J.

The plaintiffs have owned a home on Pleasant Street in Concord since 1954. On January 4, 1944, by ordinance (amended March 6, 1945 and August 1, 1950), the city adopted an official map of the city showing the locations and exterior lines of streets and parks. See RSA 36:10, :13. On July 10, 1961, the city enacted ordinances which prohibited, with certain exceptions, the construction of any building within the bed of a mapped street. See Concord, N.H., Municipal Code of Ordinances ch. 14, art. 3, §§ 14, 7-14, 12.

By letter dated January 11, 1961, the plaintiffs were advised of a city vote to map the lines of a future street from Pleasant to State Streets. The letter stated that city crews would be working on this project and that as soon as the survey was completed the plaintiffs would be advised as to the proposed location of the street and the anticipated development schedule. No further notification was received by the Burgesses. Subsequently, from May 1963 to September 1965, the lines of a future street, to be known as the "Northwest By-Pass," were mapped and filed with the board of aldermen (renamed "City Council" in 1967).

During the spring of 1976, the plaintiffs attempted to sell the real estate in question. Prospective purchasers were unwilling to buy because they considered the mapped street an encumbrance on the title. The city planning director, on inquiry, informed prospective buyers that the by pass will be built within 5 to 10 years, that the city has already begun the acquisition of other properties within the bed of said street, and that certain alterations are prohibited by the existing ordinances. The plaintiffs have offered the property to the city at a price determined by the city's own appraiser. The Concord planning board has twice recommended that the city purchase the plaintiffs' property. Not only has the city council refused to follow the recommendations of the board, but it has also denied plaintiffs' petition to discontinue the mapped street.

The plaintiffs in their petition sought a declaration that the mapped street is null and void because the city failed to comply with constitutional due process, and, in the alternative, a declaration that the actions of the city constitute a taking of the plaintiffs' property for which they are...