Garipay v. Town of Hanover, 7146

• Decision Date: 31 January 1976
• Docket Number: No. 7146,7146
• Citation: 351 A.2d 64,116 N.H. 34
• Parties: L. Earle GARIPAY et al. v. TOWN OF HANOVER et al.
• Court: New Hampshire Supreme Court

Page 64

351 A.2d 64

116 N.H. 34

L. Earle GARIPAY et al. v. TOWN OF HANOVER et al.

No. 7146.

Supreme Court of New Hampshire.

Jan. 31, 1976.

Baker & Page, Lebanon (Ridler W. Page, Lebanon, orally), for plaintiffs.

Laurence F. Gardner, Hanover, by brief and orally, for defendants.

GRIFFITH, Justice.

This is an appeal under RSA 36:34 (Supp.1975) from a decision of the planning board of the town of Hanover denying plaintiffs' agents' requests for preliminary approval of a subdivision in that town. The issues were submitted to the trial court on an agreed statement of facts and transferred without ruling by Johnson, J. The planning board's denial of the request for approval of the subdivision was based on a finding that Hemlock Road, the access road connecting the proposed subdivision to the main network of town roads, would be inadequate to handle the increased traffic created by forty-nine new homes. The question presented to us is whether the planning board is authorized under RSA ch. 36 and the town ordinances to reject a subdivision proposal which intrinsically conforms to the requirements of the town zoning ordinance and regulations solely because of the inadequacy of an offsite, town-owned road.

The dangers posed by the inadequacy of Hemlock Road to accommodate increased traffic demands are discussed at length in the minutes of the planning board meetings of December 18, 1973, January 8, 1974, and January 15, 1975. The location of the proposed subdivision is on top of a hill to which Hemlock Road provides the only access. This road is described as 'narrow, steep and winding, having a width of fourteen to sixteen feet, shoulders only two feet wide, a grade which at times exceeds 15%, and a course which results in 'at least one horseshoe curve.' Consequently, the planning board found that the road would pose 'a serious danger to both pedestrian and vehicular traffic.' The town police chief expressed 'serious reservations about (his) department being able to respond to an emergency in this area, in the wintertime.' There was evidence that in winter the steepness of the road often forces residents to leave their cars at the foot of the hill, and that while the limited available space can accommodate the present vehicles, congestion created by further abandoned cars from the subdivision could cause serious hazards.

The plaintiffs do not contest the accuracy of these findings. Their argument is that the planning board is precluded from considering offsite factors and must limit its investigation to whether the subdivision internally complies with state and town requirements. In our opinion both the state-enabling legislation and the Hanover subdivision regulations provide authority for the board's decision.

RSA 36:21 (Supp.1975) provides that town planning boards may promulgate regulations which 'provide against such scattered or premature subdivision of land as would involve danger or injury to health, safety, or prosperity by reason of the lack of . . . transportation . . . or other public services, or necessitate an excessive expenditure of public funds for the supply of such services.' Pursuant to this statute, Hanover has enacted article III(B) of its subdivision regulations, which uses language identical to that quoted above. These...