Land/Vest Properties, Inc. v. Town of Plainfield, 7741

• Decision Date: 24 October 1977
• Docket Number: No. 7741,7741
• Citation: 379 A.2d 200,117 N.H. 817
• Parties: LAND/VEST PROPERTIES, INC. v. TOWN OF PLAINFIELD.
• Court: New Hampshire Supreme Court

Page 200

379 A.2d 200

117 N.H. 817

LAND/VEST PROPERTIES, INC. v. TOWN OF PLAINFIELD.

No. 7741.

Supreme Court of New Hampshire.

Oct. 24, 1977.

Stebbins & Bradley, Hanover (Michael L. Slive, Hanover, orally), for plaintiff.

Leahy & Denault, Claremont (Peter Hoe Burling, Claremont, orally), for defendant.

BOIS, Justice.

Pursuant to RSA 36:19, :21 (Supp.1975), and :22, the defendant town planning board denied plaintiff developer's application for subdivision approval after plaintiff refused to comply with the defendant's precondition to approval. The planning board conditioned its approval on the plaintiff's upgrading at its own expense and to standards established by the town the two class V highways leading to but located outside plaintiff's proposed subdivision.

The plaintiff challenges the propriety of this subdivision exaction and claims that defendant's denial of subdivision approval, on the basis of plaintiff's refusal to provide the required offsite improvements, is unlawful. Claiming illegality in the extent of the required improvements and the imposition of their entire expense, plaintiff brought this action seeking reversal of the board's decision and an order compelling approval of its application without precondition. Hearing was before Johnson, J., who found that the precondition "exact(s) an unreasonable road building cost from this plaintiff as a price for subdivision approval." The court further found "that the conditions (sic) . . . constitutes an unreasonable attempt to shift a town burden to a single developer." The case was ordered "remanded to the Planning Board with the instruction that offsite exactions may be required only in proportion as such improvements bear a rational nexus to the needs created by the subdivision and the benefits conferred upon the subdivision." All questions of law raised by the pleadings and at trial were reserved and transferred.

Plaintiff owns two parcels of undeveloped land in Plainfield. Proposing to divide this land into fifteen lots ranging in size from approximately fifteen to ninety-six acres, plaintiff applied for subdivision approval. Two class V highways known as Black Hill Road and Porter Road provide the only access to plaintiff's proposed subdivision. Lying completely offsite, Black Hill Road becomes Porter Road, which continues as a class V highway until it enters plaintiff's proposed subdivision, where it terminates. The relevant distance over the offsite extent of Black Hill and Porter Roads is 5,000 feet. Three of the plaintiff's lots border Porter Road for approximately 950 feet. Plaintiff has no frontage on Black Hill Road. There are presently two year-round residences and, in addition to the plaintiff, three other owners of undeveloped land located on and fronting these access roads. Both of these roads are maintained by the defendant at a standard marginally adequate to handle the present traffic, and an emergency would create a hazard for access due to their present condition. Increased traffic from plaintiff's proposed fifteen lots would also increase the present danger. As a precondition to subdivision approval, the defendant requires the plaintiff to unilaterally finance the upgrading of these offsite access roads to safety standards established by the town's subdivision regulations.

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 . . . safety . . . 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." RSA 36:22 additionally authorizes the defendant to "stipulate, as a condition precedent to the approval of (the subdivision), the extent to which and the manner in which streets shall be graded and improved. . . ." These statutes "plainly empower the planning board to (consider) offsite factors . . . insofar as they render subdivisions 'scattered or premature,' " Garipay v. Town of Hanover, 116 N.H. 34, 36, 351 A.2d 64, 65 (1976), and to condition approval of the plaintiff's proposal on an upgrading of these offsite factors through improvements necessitated by the subdivision. KBW, Inc. v. Town of Bennington, 115 N.H. 392, 342 A.2d 653 (1975).

As a threshold determination, "(t)he board must ascertain what amount of development, in relation to what quantum of services available, will present the (danger or injury) described in the statute . . .. At the point where such a hazard is created, further development becomes premature." Garipay, supra at 36, 351 A.2d at 65. The trial court found that traffic over Black Hill Road and Porter Road, due to the proposed subdivision, will increase the hazard that "an emergency would create as things stand now." It further found that "there is no question there must be improvement to the access road(s) if the subdivision is fully developed and homes are built." The record supports these findings and compels the conclusion that, with respect to the criterion of safety, the proposed subdivision was "premature." The town, therefore, could legitimately condition its approval of the subdivision on the provision of improvements to the offsite access roads. See KBW, Inc. supra. As an exercise of the state's police power, however, such condition must not only be reasonably necessary to protect the public safety but also otherwise constitutional. See Blevens v. City of Manchester, 103 N.H. 284, 170 A.2d 121 (1961); Ayres v. City Council of Los Angeles, 34 Cal.2d 31, 207 P.2d 1 (1949).

In addition to specifying the standards that offsite improvements must satisfy as a precondition to subdivision approval, defendant imposed complete financial responsibility for these improvements upon the subdivider. This court's task in determining the propriety of such one-sided cost allocation requires "judgments about the . . . ambit of freedom from official regulation that is implicit in (this state's constitutional) concept of private property." Johnston, Constitutionality of Subdivision Control Exactions: The Quest for a Rationale, 52 Cornell L.Q. 871, 922 (1967). Metzger v. Brentwood, 117 N.H. ---, 374 A.2d 954 (1977); Robbins v. Laconia, 117 N.H. ---, 371 A.2d 1167 (1977); N.H.Const. pt. I, art. 2.

The town takes the position that:

"in determining the proper distribution of subdivision costs between the subdivider and the municipality, the appropriate test is the 'but-for' test. In other words, the Town has consistently asked the question(,) 'But for this subdivision, would these improvements be required now?' Finding, as it did, that the Answer to this inquiry is 'no,' the Planning Board placed the burden of improving the road on the party whose development proposal made the improvements necessary."

Though a majority of this court in KBW, Inc. supra, upheld a condition to subdivision approval that required the subdivider to bear the total cost of offsite road improvements necessitated by his proposed subdivision, defendant's reliance on KBW in this case is misplaced. This court found in KBW that "the improvements . . . were required only because of the plaintiff's proposed subdivision, since (these improvements) would not extend beyond the frontage of plaintiff's land and no residences are presently situated on the road within the town beyond the frontage of plaintiff's land." 115 N.H. at 395, 342 A.2d at 655 (Emphasis added). Here, however, two residences and three undeveloped lots, in addition to plaintiff's land, border on the access roads; moreover, the improvements required by defendant extend well beyond the proposed subdivision's frontage. We note that "(plaintiff agrees and understands its obligation to improve that part of the . . . highway and which is approximately 4,800 feet in distance contained within the bounds of the development." Since necessary improvements to the access roads here are feasible, Garipay supra, involving road improvements which were not feasible, is also factually distinguishable.

Defendant asserts that its "but-for" test "balances" the burden imposed on the town by the subdivision against the burden imposed on the subdivider by the town's precondition for subdivision approval. However, for the reasons set out below, it is our view that since defendant's test fails to give corresponding consideration to benefits, such a test is inconsistent with the protection afforded private property under the New Hampshire Constitution.

Part I, Article 12 of the New Hampshire Constitution requires that "no part of a man's property shall be . . . applied to public uses . . . without his own consent, or that of the representative body of the people." This provision allows the application of private property to public use only "on the implied condition . . . that (the landowner) is to receive a just compensation." Great Falls Mfg. Co. v. Fernald, 47 N.H. 444, 455 (1867). The defendant's but-for test dictates that the plaintiff provide necessary offsite improvements at its sole expense. This requirement applies plaintiff's property to public use, for it is obvious that the public will benefit from improvements in Porter and Black Hill Roads, which are both public class V highways bordered by other developed and undeveloped taxable properties. Defendant's subdivision exaction, therefore, brings into play part I, article 12...