Rockhouse Mountain Property Owners Ass'n, Inc. v. Town of Conway, 85-061

• Decision Date: 06 January 1986
• Docket Number: No. 85-061,85-061
• Parties: ROCKHOUSE MOUNTAIN PROPERTY OWNERS ASSOCIATION, INC. et al. v. TOWN OF CONWAY et al.
• Court: New Hampshire Supreme Court

Page 1385

503 A.2d 1385

127 N.H. 593

ROCKHOUSE MOUNTAIN PROPERTY OWNERS ASSOCIATION, INC. et al. v. TOWN OF CONWAY et al.

No. 85-061.

Supreme Court of New Hampshire.

Jan. 6, 1986.

Cooper, Fauver & Deans P.A., North Conway (Randall F. Cooper, on brief and orally), for plaintiffs.

Upton, Sanders & Smith, Concord (Gilbert Upton and Russell F. Hilliard, on brief), for defendant.

SOUTER, Justice.

This is an appeal from the superior court's dismissal of three claims for relief: (a) a claim for damages alleging that the defendants' refusal to lay out certain roads infringed the plaintiffs' rights to the equal protection of the laws, as guaranteed by the State Constitution; (b) a claim for damages alleging that the refusal to lay out the roads adversely affected the value of the plaintiffs' properties and was therefore a denial of due process of law, as guaranteed by the State Constitution; and (c) a claim that the plaintiffs were entitled to a writ of mandamus ordering the defendants to lay out the roads. We affirm.

The plaintiffs are an incorporated association of owners of lots in a Conway subdivision known as Rockhouse Mountain, together with individual property owners. We do not understand that the association asserts any rights independently of those claimed by the individual plaintiffs, and in this opinion our references to the plaintiffs will be to all of individual property owners. The defendants are the Town of Conway acting through its selectmen, together with three selectmen in their official and individual capacities.

In 1971, the town's planning board approved plans for the subdivision, although the subdivision's rights of way as planned and constructed did not meet town road standards. Thereafter, the individual plaintiffs' predecessor in title, Great Northern Land Corporation, sold lots in the subdivision, subject to a covenant requiring lot owners to pay charges for water and the costs of right of way maintenance for as long as Great Northern chose to provide them. Great Northern stopped maintaining the rights of way in 1980, and the plaintiffs allege that they have seriously deteriorated since then.

In 1980, some of the plaintiffs petitioned the Conway selectmen under RSA 52:1, I (Supp.1983) to establish a village district with power to lay out roads over the existing rights of way and to maintain them. The selectmen tabled this petition with the suggestion that the petitioners explore the possibility of joinder with an existing village district serving a related subdivision in the contiguous town of Madison. In October 1981, property owners in each subdivision petitioned their respective selectmen to establish such an expanded village district. After public hearing, however, the selectmen took no action, and proposed that the Rockhouse Mountain landowners seek some other way to provide public layout and maintenance of roads. The selectmen specifically suggested that the property owners consider RSA 231:28 as a basis for petitioning the selectmen to lay out town roads over the existing private rights of way, subject to betterment assessments against the abutting owners to pay for the cost of necessary improvements.

In August 1982, the owners did petition the Conway selectmen, with two requests. First, they petitioned the town under RSA 231:8 to lay out town roads over all rights of way in the subdivision, without cost to the abutting owners. Alternatively, they requested road layouts over the subdivision's two principal thoroughfares, subject to betterment assessments against the abutters under RSA 231:28. In September 1982, the selectmen denied each request, stating in effect that the existing ways did not meet town road specifications, and that the cost of betterment assessments to improve them to satisfy town standards would be disproportionate to any value that the abutters would thereby receive.

A year later, in September 1983, some of the property owners filed a new petition seeking the layout of 2,500 feet of one of the principal thoroughfares, known as Brenner Drive, subject to betterment assessments. In November, the selectmen denied the petition and gave as reasons, inter alia, that Brenner Drive was a dead-end way with only four houses and that the burden of any betterment assessments would be substantial. The owners moved for reconsideration, which the selectmen denied in December 1983, with a further statement of reasons: the obligation to maintain and plow the road would be a burden to the town; the petitioners paid only .5 percent of total local taxes; the proposed road would benefit only four or five houses, none of which was owned by a year-round resident; and the cost of a betterment assessment would be both burdensome to the abutters and disproportionate to the value they would receive.

On March, 1, 1984, the plaintiffs filed the present petition, containing four counts. The first two counts requested the superior court to exercise its jurisdiction under RSA chapter 231, to lay out roads when town selectmen have failed or refused to do so. The plaintiffs purportedly rely on RSA 231:34 in seeking the superior court's layout of a town road over the 2,500 feet of Brenner Drive subject to a betterment assessment; and they rely on RSA 231:38 (Supp.1983) in asking the layout of town roads in the subdivision generally, without cost to abutters. These two requests are pending in the superior court and are not subjects of this appeal.

As a third count, the petition alleged that in refusing to lay out the roads the selectmen discriminated against the plaintiffs as a class because of their seasonal residence. The plaintiffs claim that such discrimination violated guarantees of equal protection of the laws provided by the State and National Constitutions. As a fourth count, the petition asserted that the refusals by the selectmen had delayed the construction of adequate roads and that the delay amounted to a deprivation of property rights, in violation of due process guaranteed by both constitutions.

The plaintiffs sought relief in three forms. As noted above, they asked the superior court to exercise its statutory jurisdiction to lay out the desired roads, following the selectmen's refusal to do so. They also sought money damages for the alleged violations of the constitutions, resting their federal damage claims on 42 U.S.C. 1983. Finally, they requested a writ of mandamus, ordering the selectmen to lay out the roads.

The defendants moved to dismiss the third and fourth counts, and the related claims for money damages, for failure to state causes of action upon which the requested relief might be granted. The plaintiffs later took voluntary nonsuits of their claims insofar as they were based upon the Constitution of the United States under 42 U.S.C. 1983, in the light of recent opinions of the United States Court of Appeals for the First Circuit declining to recognize such actions under § 1983. See, e.g., Alton Land Trust v. Town of Alton, 745 F.2d 730 (1st Cir.1984); Cloutier v. Town of Epping, 714 F.2d 1184 (1st Cir.1983); Chiplin Enterprises, Inc. v. City of Lebanon, 712 F.2d 1524 (1st Cir.1983); Creative Environments, Inc. v. Estabrook, 680 F.2d 822 (1st Cir.), cert. denied, 459 U.S. 989, 103 S.Ct. 345, 74 L.Ed.2d 385 (1982).

After a hearing before a Master (Charles T. Gallagher, Esq.), the Superior Court (Temple, J.) dismissed the third and fourth counts and the claims for damages insofar as they were based on State constitutional grounds, and also dismissed the request for mandamus. This appeal followed.

We will consider first the dismissal of the claim for money damages sought as redress for the equal protection violation alleged in the third count. The plaintiffs argue that an action for damages should lie against a municipality and its officials when those officials have acted under color of law and with discriminatory intent to subject any person to a denial of the equal protection of the laws, as guaranteed by part I, article 12 of the Constitution of New Hampshire. See State v. Pinsince, 105 N.H. 38, 41, 192 A.2d 605, 607 (1963); Snowden v. Hughes, 321 U.S. 1, 8, 64 S.Ct. 397, 401, 88 L.Ed. 497 (1944). They thus urge this court to create a so-called constitutional tort, in the manner exemplified by the United States Supreme Court's recognization of a right to damages for a fourth amendment violation, committed by federal agents. See Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).

As in any case in which we are asked to recognize a new cause of action, it is a question of policy whether it would be wise to provide the relief that the plaintiffs seek. See, e.g., Siciliano v. Capitol City Shows, Inc., 124 N.H. 719, 725, 475 A.2d 19, 21-22 (1984). Reaching an answer to this question requires two quite separate steps, for we must determine whether the interest that the plaintiffs assert should receive any legal recognition and, if so, whether the relief that the plaintiffs request would be an appropriate way to recognize it. See Bivens v. Six Unknown Fed. Narcotics Agents, supra 403 U.S. at 398-411, 91 S.Ct. at 2005-2012 (Harlan, J., concurring); cf. Bivens v. Six Unknown Named Agents of Fed. Bur. of Nar., 409 F.2d 718, 722-23 (2d Cir.1969) (only when constitutional provision would otherwise be a mere form of words is it appropriate for judiciary to fashion remedy for violation of that provision), rev'd, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971); see generally Katz, The Jurisprudence of Remedies: Constitutional Legality and the Law of Torts in Bell v. Hood, 117 U.Pa.L.Rev. 1 (1968).

The fact that the interest said to have been infringed here has constitutional status takes us through the first step; it demonstrates that a denial of equal protection demands some vindication in the law. But that constitutional recognition does not carry the plaintiffs through the second step; it does not tell us...