Neville v. Highfields Farm, Inc.

• Decision Date: 13 December 1999
• Docket Number: No. 97–159.,97–159.
• Citation: 744 A.2d 89,144 N.H. 419
• Court: New Hampshire Supreme Court
• Parties: Richard NEVILLE and others v. HIGHFIELDS FARM, INC. and another.

144 N.H. 419

744 A.2d 89

Richard NEVILLE and others

v.HIGHFIELDS FARM, INC. and another.

No. 97–159.

Supreme Court of New Hampshire.

Dec. 13, 1999.

Sheehan Phinney Bass + Green, P.A., of Manchester (Stephen E. Weyl on the brief and orally), for the plaintiffs.

Cooper, Deans & Cargill, P.A., of North Conway (Randall F. Cooper on the defendants' joint brief), Upton, Sanders & Smith, of Concord (Russell F. Hilliard and Barton L. Mayer on the defendants' joint brief, and Mr. Hilliard orally), for the defendants.

THAYER, J.

The defendants, Highfields Farm, Inc. (Highfields) and the Town of Conway (town), appeal from a Superior Court (Mohl , J.) order finding a circumvention of the Town of Conway Planning Board's (planning board) authority and granting the plaintiffs' request for injunctive relief.

The plaintiffs, Richard Neville, September Neville, Edwin L. Neville, Jr., Whitney Harvey, and Charles Harvey, cross-appeal, arguing that the court erred in holding: (1) that the town's approval of Article 42 was not ultra vires; and (2) that the town did not enter into an unlawful indemnity agreement. We reverse in part and affirm in part.

This case arises from the relocation of a section of Baird Hill Road in Conway. The following facts were adduced after a bench trial and view of the property at issue. In 1972, Baird Hill Road was designated a scenic road and, therefore, became subject to restrictions regarding reconstruction as set forth in RSA 231:158 (1993).

Highfields owns property on Baird Hill Road and wished to relocate part of the road. The proffered reason was that the road's configuration and drainage system caused a nuisance and hazard to Highfields' property. Twice in 1991, Highfields sought approval from the planning board to relocate part of Baird Hill Road. The planning board denied both requests. Highfields did not appeal the planning board's decisions. Instead, it sent the board of selectmen a proposed warrant article (Article 42) for inclusion in the warrant for the 1992 town meeting.

Article 42 was adopted by secret ballot and provided:

ARTICLE 42. To see if the Town will vote to RELOCATE A PORTION OF BAIRD HILL ROAD subject to the following procedure:

(a) To initially remove the scenic road designation from [a] portion of Baird Hill Road....

(b) To then relocate that portion of the roadway as described in subparagraph (a) above onto other land of Highfields Farm, Inc., on such terms and conditions as may be established by the Board of Selectmen, so long as the same is at no expense to the town, with all such costs to be borne by Highfields Farm, Inc.

(c) Upon completion of construction of the relocated roadway to the full satisfaction of the Board of Selectmen, to authorize the Selectmen to accept an Easement Deed for the relocated roadway and correspondingly to convey to Highfields Farm, Inc. a Quitclaim Deed from the Town for its interest in the old roadway, subject to an easement of passage from its southerly end to the entrance to Labrador Pond Road, a Class VI highway of the Town.

(d) Upon acceptance of the Easement Deed, to thereafter designate the then relocated portion of Baird Hill Road as a scenic road, pursuant to the provisions to RSA 231:157, without further Town Meeting vote.

At Highfields' expense, the town selectmen engaged the services of an independent engineering firm to make specific recommendations with respect to the relocation. The firm submitted its recommendations with a proposed location entirely on Highfields' property. In 1993, the defendants executed a relocation and indemnity agreement to relocate part of Baird Hill Road. After the work was completed, the town issued a release deed to Highfields.

The plaintiffs own property abutting Highfields' property on Baird Hill Road. They sought a preliminary injunction to enjoin the relocation. The trial court denied their request. Pursuant to Article 42, the defendants relocated Baird Hill Road. Again, the plaintiffs sought declaratory and injunctive relief that would void Article 42 and the actions taken pursuant to it, and restore Baird Hill Road to its original location. The trial court ruled for the plaintiffs on their alternative argument that the selectmen circumvented the planning board's authority. The trial court therefore granted the plaintiffs' request for injunctive relief and ordered that the defendants restore Baird Hill Road. The defendants appealed, and the plaintiffs cross-appealed.

The defendants raise a number of issues on appeal. We need, however, address only one: whether the court erred in finding that a circumvention of the planning board's authority occurred. On cross-appeal, the plaintiffs contend that the trial court erred in holding that: (1) the acts precipitated by Article 42 were not ultra vires and did not violate RSA 231:158 ; and (2) the indemnity agreement into which the town entered was proper. We address these issues in turn.

I. Circumvention of the Planning Board

According to the defendants, the adoption of Article 42 was a proper exercise of the town meeting's authority. The plaintiffs contend, however, that it amounted to a circumvention of the planning board's decision denying the relocation of a scenic road. The trial court recognized that the enabling statutes permitted the actions taken pursuant to Article 42, but nevertheless found Article 42 invalid because

[t]he town meeting, by its very vote on Article 42, intended ... to do to Baird Hill Road what the planning board refused to do, in short, to reverse the refusal of the planning board to approve the changes.... Thus, the Article 42 undesignation of the portion of Baird Hill Road ... was a mere pretext to achieve a result the town could not otherwise achieve through the proper statutory mechanism, namely, the planning board.

"On appeal, we sustain the findings and rulings of the trial court unless they are lacking in evidential support or tainted by error of law." Quirk v. Town of New Boston , 140 N.H. 124, 128, 663 A.2d 1328, 1331 (1995) (quotation omitted). When ascertaining whether a circumvention of authority has transpired, we inquire whether the administrative agency whose authority is allegedly being circumvented had jurisdiction. See , e.g. , Cloutier v. Epping Water & Sewer Comm'n, 116 N.H. 276, 280, 360 A.2d 892, 895–96 (1976) (town's attempt to circumvent legal authority of commission was invalid and ineffectual because commission had sole jurisdiction); Buxton v. Town of Exeter , 117 N.H. 27, 29, 369 A.2d 188, 189 (1977) (selectmen's attempt to circumvent board of adjustment's denial invalid because board had sole jurisdiction to grant special exceptions and variances).

"Although the general function of the [planning] board is to prepare a master plan for the development of the municipality, the powers of the planning board are not limited solely to its preparation." Town of Freedom v. Gillespie , 120 N.H. 576, 579, 419 A.2d 1090, 1092 (1980) (quotation omitted); see RSA 674:1, I (1996). Once having created a planning board, a town may delegate additional authority to the board to enable it to promote municipal planning. RSA 674:1 ; Town of Freedom , 120 N.H. at 579, 419 A.2d at 1092. In addition, once a planning board is created and a statute grants exclusive jurisdiction to the board over a particular subject matter, the range of issues the town may consider relative to that subject matter becomes severely narrowed. See Ehrenberg v. City of Concord , 120 N.H. 656, 661, 421 A.2d 128, 131 (1980) (decided under prior law); see also Mudge v. Precinct of Haverhill Corner, 133 N.H. 881, 885, 587 A.2d 603, 605 (1991) ; Levasseur v. Board of Selectmen , 116 N.H. 340, 342, 358 A.2d 665, 666 (1976).

Where a town duly appoints an entity to handle specified matters and later attempts to overturn a decision of that entity by town vote, we have found a circumvention, rendering the town's decision invalid. See Cloutier , 116 N.H. at 280, 360 A.2d at 896. "Such a state of affairs would exist in derogation of a statutory framework that requires comprehensive land use planning as the major tool of growth regulation." Ehrenberg , 120 N.H. at 661, 421 A.2d at 132. The planning board, however, "has only those powers granted to it; it cannot usurp powers belonging to another town body or the town as a whole." Beck v. Town of Auburn

, 121 N.H. 996, 998, 437 A.2d 289, 291 (1981).

In this case, the only entity with jurisdiction to accomplish at least part of Article 42 was the town. The planning board lacked authority to designate a scenic road or to remove a road's designation as scenic. The only statutorily authorized entity to do so is a town through its vote. See RSA 231:157 (1993). Nevertheless, the plaintiffs contend that only the planning board had jurisdiction to authorize moving trees or stone walls on Baird Hill Road because, as a scenic road, it was subject to RSA 231:158, II, which prohibits on a scenic road

the cutting ... or removal of trees, or the tearing down ... of stone walls ... except with the prior written consent of the planning board, or any other official municipal body designated....

The plaintiffs argue that RSA 231:158 required the defendants to obtain approval from either the planning board or "any other official municipal body." The plaintiffs contend that because no other municipal body was designated, the planning board was the sole entity vested with jurisdiction to approve the removal of trees and stone walls.

We disagree with the plaintiffs' contention that the mere creation of the planning board divested the town of jurisdiction to vote on Article 42. "This court, of course, is the final arbiter of the legislature's intent as expressed in the words of the statute as considered as a whole." Pope v. Town of Hinsdale , 137 N.H. 233, 237, 624 A.2d 1360, 1362 (1993). We interpret the words of a statute according to their plain meaning. New London Land Use Assoc. v. New London Zoning Board , 130 N.H. 510, 514, 543 A.2d 1385,...