Gordon v. Town of Rye.

• Decision Date: 15 June 2011
• Docket Number: No. 2009–836.,2009–836.
• Citation: 27 A.3d 644,162 N.H. 144
• Parties: Peter L. GORDON, Trustee of the Peter L. Gordon Revocable Trust of 1999 and anotherv.TOWN OF RYE.
• Court: New Hampshire Supreme Court

162 N.H. 144

27 A.3d 644

Peter L. GORDON, Trustee of the Peter L. Gordon Revocable Trust of 1999 and another

v.TOWN OF RYE.

No. 2009–836.

Supreme Court of New Hampshire.

Argued: Sept. 23, 2010.Opinion Issued: June 15, 2011.

Wadleigh, Starr & Peters, P.L.L.C., of Manchester (Robert E. Murphy, Jr. on the brief and orally), for the petitioners.Michael L. Donovan, of Concord, by brief and orally, for the respondent.HICKS, J.

The petitioners, owners of six properties situated on the Atlantic Ocean lying adjacent to and at the end of Harbor Road in Rye, appeal an order recommended by a Judicial Referee ( Hollman, J.) and approved by the Superior Court ( Nicolosi, J.) affirming a decision of the Rye Board of Selectmen (board) that a portion of the road had not become public by prescription. We affirm in part, vacate in part and remand.

The following facts are supported by the record. The section of Harbor Road at issue lies south of the jetty marking the entrance to Rye Harbor and runs approximately 350 feet around a bend and then southerly to a locked gate erected at the boundary between lot six and lot five (the McLaughlin property). This section of the road provides the only means of access to the petitioners' properties from the end of Harbor Road. The parties do not dispute that south of this gate, Harbor Road is a private road.

At a July 29, 1996 meeting of the board, petitioner Peter L. Gordon and another Harbor Road resident asked the town to plow the end of Harbor Road. Subsequently, at its September 9 meeting, the board discussed the question and noted that a decision needed to be made whether the town would plow the road and whether it was a town road. The board discussed the issue again at its December 16 meeting and on January 13, 1997, the board informed Gordon that “he would be plowed.”

On January 9, 2001, the board directed the public works director to “plow Harbor Road as far as the McLaughlin property line, as the road is a town road down to that point.” The town continued to plow the disputed section of the road until the McLaughlins erected a gate across the private right-of-way continuing off the end of Harbor Road, making it difficult for the town to turn its snow removal equipment around. At its November 10, 2005 meeting, the board noted that

[w]ith winter approaching, the question of whether or not the gate at the entrance to the McLaughlin property at the end of Harbor Road is still in place must be resolved prior to the first plowing. If the gate is down, our plows cannot turn around or clear the snow in front of the gate.

At its December 12 meeting, the selectmen noted that “[a]uthorization has been received from [the] property owners beyond the McLaughlin gate at the terminus of Harbor Road for the Town to access their R.O.W.'s in order to plow and turn around.”

On December 28, 2006, the board conducted a site visit to “review[ ] the situation at the end of Harbor Road adjacent to the McLaughlin property.” McLaughlin had notified the town that its plow trucks would not be able to use his property or the right-of-way through his property to turn around when plowing the town portion of Harbor Road, which meant that the town would not be able to plow approximately the last one hundred feet of Harbor Road.

On November 27, 2007, the town administrator notified the affected Harbor Road property owners by letter that “State law does not allow a town to lawfully spend public money to maintain a private road unless the maintenance is ‘subordinate and incidental’ to the needs of the Town's own highways and the benefited persons fully compensate the Town.” In his letter, the administrator stated that the board would defer deciding on the public or private status of the disputed section of Harbor Road because some of the affected property owners were away for the winter months. The letter stated that the town would continue plowing the disputed section of road during the 2007–2008 winter but that this action “should not be construed by any property owner as a representation by the [town] that the section of Harbor Road beyond the jetty is a town road.”

On September 19, 2008, the board issued a notice of hearing stating:

[O]n October 20, 2008 at 6:30 p.m. at the Rye Town Hall, the Town of Rye Board of Selectmen will hold a hearing on whether the section of Harbor Road between the Rye Harbor south jetty and the lot owned by Family Harbor Realty Trust (i.e. the “McLaughlin's Lot”) is a town road or a private right-of-way.

After the hearing, the Board of Selectmen is expected to make a decision concerning the legal status of this section of Harbor Road. If the Board of Selectmen determines that this section of road is a private right-of[-]way, the Town will discontinue maintenance of it.

As a property owner whose lot is accessed by this section of Harbor Road, your property rights may be affected by the decision which the Board of Selectmen makes. You may attend the hearing and provide the Board of Selectmen with testimony and evidence relative to the legal status of this section of Harbor Road.

Please be advised that Town Counsel has reviewed the legal status of this section of Harbor Road and opined that it is a private right-of-way and not a town road. A copy of Town Counsel's opinion and his analysis ... is appended to this notice. A notebook containing the deeds and plans of record and other information reviewed by Town Counsel is available for inspection and copying at the Selectmen's Office, Rye Town Hall.

After summarizing the purpose of the hearing, the chairman of the board opened the October hearing by stating that the hearing would be held under the provisions of RSA chapter 43. At the hearing, the board considered maps and aerial photographs, property deeds and written and oral testimony.

On November 17, 2008, the board decided that “due to the lack of convincing evidence showing this to be a public road, and because the deeds clearly state that the road is to be maintained by the property owners, that [the disputed section of Harbor Road] is and has always been a private road.” On December 1, 2008, the board issued its written decision. The petitioners filed a motion for rehearing, arguing that the board's decision was unlawful because the board “lacked subject matter jurisdiction to rule on the issue whether Rye Harbor Road south of the jetty to the McLaughlin property was a public road under chapter 43.” The petitioners also argued that “[t]here was no petition to layout or alter a highway before the Board” and “[t]he sole jurisdiction to discontinue maintenance of a road is RSA 231:45–a, I. If the road was public in 1997, the only way it may be discontinued is by legislative action at Town meeting.” Denying the motion for rehearing, the board stated that the jurisdiction argument “could have been raised in 2007 when the selectmen first notified the property owners that it would hold a hearing to determine the status of this section of Harbor Road” and that RSA 231:45–a, I, does not apply because “[i]n order for a town meeting to vote to discontinue a town road, the town road must lawfully exist as a town road. This proceeding was intended to determine whether or not the section of Harbor Rd. south of the jetty was or was not a lawfully established town road.”

The petitioners filed a petition for a writ of certiorari, mandamus and declaratory relief in the superior court, seeking a review of the board's decision and a declaration that the disputed section of Harbor Road is a public road. At the merits hearing, the petitioners argued that RSA chapter 43 does not provide the board with subject matter jurisdiction to decide whether a road is public or private. The town argued that the board's jurisdiction over roads is conferred by RSA 41:11, which, it argued, gives the board “total authority to regulate roads without any action by the town meeting.”

The trial court's order notes that the petitioners and the board agreed that the standard to be applied by the board would be whether the disputed portion of Harbor Road became a public road by prescription. The trial court reviewed the board's decision on this issue and found it to be lawful. Regarding the board's 1997 decision to resume plowing the disputed section of Harbor Road, the court ruled that it did not qualify as a final decision subjecting the proceedings to the doctrine of res judicata. Regarding the board's subject matter jurisdiction, the court ruled that

RSA Chapter 43 is not merely limited to petitions to layout or alter a highway, but also applies to a petition for “the purpose of deciding any question affecting the conflicting rights or claims of different persons.” Because the Board analyzed whether the Disputed Road Section is a public road, which is a question affecting the conflicting rights and claims of both the Town and the petitioners, the Board properly exercised subject matter jurisdiction pursuant to RSA 43:1.

(Citation omitted.)

The petitioners appealed, arguing that the trial court erred in ruling: (1) that the board's 1997 decision that the road was a public road was not a decision entitled to preclusive effect; (2) that the board's 1997 decision was limited to snowplowing; and (3) that the board correctly decided that petitioners did not establish a public road by prescription. Following oral argument, we ordered the parties to submit supplemental briefs addressing whether the board had jurisdiction to decide whether the section of Harbor Road at issue became public by prescription. The petitioners argue that RSA chapter 43 does not confer upon the board subject matter jurisdiction to change a roadway's status other than by a petition for layout. The town argues that, pursuant to RSA 41:8, the board “has the prudential responsibility for managing town affairs and for performing the duties prescribed by law” and, accordingly, “[i]f a dispute arises in a town as to whether a...