Town of Auburn v. McEvoy

Decision Date30 December 1988
Docket NumberNo. 88-015,88-015
Citation553 A.2d 317,131 N.H. 383
PartiesTOWN OF AUBURN v. Lucy E. McEVOY, et al.
CourtNew Hampshire Supreme Court

Wadleigh, Starr, Peters, Dunn & Chiesa, Manchester (Eugene M. Van Loan, III, on the brief, and Dean B. Eggert orally), for plaintiff.

Casassa & Ryan, Hampton (John J. Ryan (orally) on the brief), for defendants, Lucy E. McEvoy and Sagharbor Development, Inc.

SOUTER, Justice.

The defendants appeal from a declaratory judgment of the Superior Court (R. Peter Shapiro, Esq., Master; Mangones, J.) denying their entitlement to the return of a subdivision lot, conveyed to the plaintiff in 1979 to comply with an ordinance of the sort later held unconstitutional in J.E.D. Associates, Inc. v. Town of Atkinson, 121 N.H. 581, 432 A.2d 12 (1981). We affirm.

In March 1979, the defendant Lucy McEvoy applied to the planning board of the plaintiff town for approval to subdivide two lots from a tract of more than sixty acres. The town's subdivision regulations in effect at the time required that "[i]n any subdivision containing ten acres or more whether undertaken at once or in several stages, at least five percent of the total area shall be dedicated to the Town for recreational purposes." There is no record that McEvoy raised any objection to this requirement before the planning board, although her son claims to recall an informal conversation in which he told one of the town's selectmen at the time that the dedication requirement was not "right." Rather, McEvoy proposed to satisfy the requirement by conveying a 3.3 acre lot to the town, and on June 13, 1979, a subdivision plan indicating this intent was approved. Thereafter, she neither appealed the order of approval, to the extent that it was conditioned on her proposed conveyance to the town, nor took action to protest the dedication requirement, with which she complied by conveying the lot to the town by a deed recorded on June 18. On June 28, McEvoy conveyed the undivided balance of the tract to her son, and the record before us suggests that their residual interests as developers, if indeed there were any, passed at some point to the defendant Sagharbor Development, Inc. (the corporation), which has been treated without objection as standing in McEvoy's shoes for purposes of this litigation. On May 14, 1980, the planning board approved a subdivision of the remaining undivided portion of the tract, and all lots had been sold to third parties by November 1, 1984.

In 1981, this court held in J.E.D. Associates, Inc. v. Town of Atkinson supra that a municipal regulation conditioning subdivision approval on conveyance to the town of a portion of the tract to be subdivided "without any consideration of the town's need for the land" was "an out-and-out plan of extortion" that violated part I, articles 2 and 12 of the State Constitution. Id. at 584, 432 A.2d at 14. The principals of the corporation involved in the instant case became aware of J.E.D. sometime in 1984 or 1985, and in the latter year requested the plaintiff to reconvey its lot to one or more of the defendants. Although the town had not developed the lot for any recreational use, and had no plans to do so, it refused the requested reconveyance and instead brought this declaratory judgment action under RSA 491:22 to determine the parties' respective rights.

Based on the master's recommendation, the superior court ruled against the defendants on the ground of laches. See generally Jenot v. White Mt. Acceptance Corp., 124 N.H. 701, 710, 474 A.2d 1382, 1387 (1984) (defense of laches requires proof of unreasonable and prejudicial delay); Wood v. General Elec. Co., 119 N.H. 285, 289, 402 A.2d 155, 157 (1979) (defense of laches requires proof of inequity of enforcing claim due to change in circumstances or relationships). The master concluded that changed circumstances would render any reconveyance inequitable, having found that the subdivision's residents were aware when they purchased their properties that the lot in question was meant to remain available for recreation, and had changed their positions expecting that the lot would remain commercially undeveloped.

The defendants devote their appeal to an attack on these findings, claiming the record is devoid of support for any inference that lot purchasers were aware of the dedication or would have any right to complain if the lot should be developed for a purpose other than recreation. The town responds with two points, contending, first, that the record supports the findings necessary to recognize the laches defense. More significantly, however, the town argues that the dispositive issue in the case is not the existence of laches, but the failure of the defendant McEvoy in 1979 to protest the dedication requirement and to appeal the planning board's order insofar as it was conditioned on the unconstitutional requirement to convey the lot. The town submits that the statutory provision of a period of thirty days from the filing of the planning board's decision in which to appeal that decision to the superior court, RSA 677:15, I (former RSA 36:34), must be interpreted to bar McEvoy, and any successor to her interest, from seeking a reconveyance based upon error in the 1979 order that McEvoy failed to appeal within the time allowed by statute. Subject to the qualifications expressed below, we accept this position in affirming the trial court's decision.

The immediate administrative implication of RSA 677:15, I, is not difficult to fathom. By providing that any appeal from a planning board's decision or order must be brought within the thirty-day period, the legislature obviously expressed an intent to endue such an order with finality, at least insofar as the order applies a town's land use regulations in the particular instance. Whether such an order should also be accorded the status of a judgment, with the preclusive scope provided by the doctrine of res judicata, is a question that has not been presented to us and on which we express no opinion. See generally Eastern Marine Const. Corp. v. First Southern Leasing, 129 N.H. 270, 525 A.2d 709 (1987) (scope of "cause of action" subject to res judicata ); Appeal of Global Moving & Storage of N.H., Inc., 122 N.H. 784, 789, 451 A.2d 167, 171 (1982) (administrative determination may be granted preclusive effect of judgment); Restatement (Second) of Judgments § 83 (1982). Suffice it to say here, however, that the statutory limitation on the availability of an appellate remedy will be rendered nugatory unless the failure to bring a timely appeal is held to bar a dissatisfied party from mounting a later attack on the order in question.

Because the defendants are raising just such a challenge to the provision of the 1979 order that conditioned subdivision approval on the conveyance to the town, the burden rests on them to explain how we could grant the relief they seek consistently with the appeal statute as we have explained it. For this purpose, they rely on language in the J.E.D. opinion itself indicating that constitutional challenges to planning board orders are exempt from the statutory strictures on the appellate process. The defendants have overlooked the...

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19 cases
  • Gangemi v. Zoning Board of Appeals
    • United States
    • Connecticut Supreme Court
    • January 2, 2001 bar the property owners from challenging the condition after the time limitation on appeals has expired. Auburn v. McEvoy, 131 N.H. 383, 384-85, 553 A.2d 317 (1988) (Souter, J.).28 In McEvoy, the condition operated to require the property owners to convey 3.3 acres of their property to t......
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    ... ... Assoc's, Inc. v. Town of Atkinson, 121 N.H. 581, 584-85, 432 A.2d 12 (1981) (discussing "unconstitutional exactions and ... " placed upon developers by municipalities), overruled on other grounds by Town of Auburn v. McEvoy, ... Page 282 ... 131 N.H. 383, 388, 553 A.2d 317 (1988), we have never expressly ... ...
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    ...3 (1966); see also J.E.D. Assocs. v. Town of Atkinson, 121 N.H. 581, 432 A.2d 12, 14 (1981), overruled in part by Auburn v. McEvoy, 131 N.H. 383, 553 A.2d 317 (1988); Jenad, Inc. v. Village of Scarsdale, 18 N.Y.2d 78, 271 N.Y.S.2d 955, 956-57, 218 N.E.2d 673, 674-75 (1966). Compare Pioneer ......
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    ...3148 citing JED Associates, Inc. v. Atkinson, 121 N.H. 581-584, 432 A.2d 12 (1981), overruled on other grounds in Town of Auburn v. McEvoy, 131 N.H. 383, 553 A.2d 317 (1988).In JED Associates, the New Hampshire Supreme Court examined a zoning regulation which required all developers to dedi......
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1 books & journal articles
  • Bioregional conservation may mean taking habitat.
    • United States
    • Environmental Law Vol. 37 No. 2, March 2007
    • March 22, 2007
    ...residue of its economic value"); J.E.D. Assocs. v. Town of Atkinson, 432 A.2d 12, 15 (N.H. 1981), overruled by Town of Auburn v. McEvoy, 553 A. 2d 317 (N.H. 1988) (stating that municipal officials "may not attempt to extort from a citizen a surrender of his right to just compensation for an......

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