Turco v. Town of Barnstead, 91-127

• Citation: 615 A.2d 1237,136 N.H. 256
• Decision Date: 30 October 1992
• Docket Number: No. 91-127,91-127
• Parties: Salvatore C. TURCO and Helen T. Turco v. TOWN OF BARNSTEAD.
• Court: Supreme Court of New Hampshire

Page 1237

615 A.2d 1237

136 N.H. 256

Salvatore C. TURCO and Helen T. Turco v. TOWN OF BARNSTEAD.

No. 91-127.

Supreme Court of New Hampshire.

Oct. 30, 1992.

Barto & Puffer, P.A., Concord (Mark H. Puffer, on the brief and orally), for plaintiffs.

McManus & Stiles, P.A., Dover (Anthony A. McManus on the brief and orally), for defendant.

BATCHELDER, Justice.

The plaintiffs, Salvatore and Helen Turco, appeal from a decision of the Superior Court (Dickson, J.), ruling that the defendant, the Town of Barnstead, was not obligated by the doctrine of municipal estoppel to maintain Garland Road, on which the plaintiffs had built a house. We find that the defendant is estopped from failing to maintain the road, and remand for imposition of an appropriate equitable remedy.

In 1959, the plaintiffs acquired a plot of land consisting of about 60 acres in the Town of Barnstead. They vacationed in the seasonal cottage on the land for nearly thirty years, and in 1987 decided to build a year-round retirement home.

The Turcos' land fronts on Garland Road, which serves as the only access to the house. The road's classification was dispositive of the case below because towns are forbidden to grant a building permit unless the fronting road is "a class V or better highway," RSA 674:41, I(a). New Hampshire state highways are classified into six categories, with class I and II generally being the highest quality, and class VI being the lowest.

"Class V highways shall consist of all other traveled highways which the town has the duty to maintain regularly and shall be known as town roads."

RSA 229:5, VI.

"Class VI highways shall consist of all other existing public ways, and shall include ... all highways which have not been maintained and repaired by the town in suitable condition for travel thereon for 5 successive years or more."

RSA 229:5, VII.

While the plaintiffs have since conceded that Garland Road is a class VI highway, at the time of the events in this case, its status was not clear. The road had not been maintained by the town since 1976, but New Hampshire Department of Transportation records listed it as class V, even up to the time of trial, and as of the time of trial the town had not notified the State of any change in classification. Because of the State's listing, the town received money from the State ostensibly to aid in the highway's maintenance. Moreover, the "Official Town Road Map," signed by the Barnstead Board of Selectmen as late as February 1990, indicated that Garland Road was a class V highway.

In August 1987, the plaintiffs approached one of the town's three selectmen, Leonard Tasker, with questions concerning acquisition of a building permit, and expressed their worries that the town might not maintain Garland Road. Selectman Tasker testified at trial that he assumed Turco intended merely to replace his cottage, which had been severely damaged several years earlier by vandals, with a new seasonal one. He then assured the plaintiffs that the town would maintain the road, although "not like a super highway." In the fall of 1987, the plaintiffs applied for a building permit for a 24-by-40 foot wood-framed house, estimated to cost about $67,000, and in October 1987 the town issued a building permit.

From the fall of 1987 to the following summer, the Turcos made substantial improvements to their land in preparation for the new house: they cleared the land, obtained septic plan approval by the State and the town, installed the septic system, poured a foundation, and had several officials inspect various aspects of the construction progress.

In March 1988, the plaintiffs spoke again with Selectman Tasker concerning the maintenance of Garland Road, and were again assured that it would be maintained by the town. That summer, they ordered a modular house, which was delivered on September 15, 1988. On the day of delivery, the plaintiffs were informed by their surveyor that he had heard from the town road agent that the road would not be maintained.

Shortly thereafter, the Turcos approached a second of the town's three selectmen, Paul Golden, concerning the maintenance of the road. Selectman Golden did not mention that the town considered the road class VI. Later, the plaintiffs met with all three selectmen. At the meeting, Selectman Tasker did not deny that he told Turco that the town would maintain the road, but said, according to Mr. Turco, "After all, I'm only one" selectman. The selectmen suggested that the Turcos submit a warrant article for the March 1989 town meeting. The Turcos did so, but withdrew it before it came up for a vote upon the advice of the selectmen because the selectmen believed that after this court's decision in Glick v. Town of Ossipee, 130 N.H. 643, 547 A.2d 231 (1988), the selectmen could take care of the problem without a vote of the town meeting.

In May 1989, the selectmen asked the Turcos to attend a selectmen's meeting. They did so, and were informed that the town might agree to maintain the relevant 0.3 miles of Garland Road if the plaintiffs would bear the cost of bringing it up to class V condition. The Turcos were also given an engineering worksheet indicating that doing so would cost about $87,000.

Meanwhile, in January 1989, the plaintiffs asked the Barnstead Planning Board to subdivide the portion of the land with the new house on it from the rest of the plot. The town did not act on the request, and the Turcos filed a formal petition in September 1989. In November the board denied the subdivision because the "[s]ubdivision [is] located on a Class VI road."

The Turcos brought suit in superior court seeking a mandatory injunction compelling Barnstead to maintain the road, and a declaratory judgment stating that (1) the relevant portion of Garland Road was a class V highway; (2) the town was estopped from failing to maintain the relevant portion of Garland Road because the plaintiffs had relied upon conversations with the various selectmen, and had been issued a building permit; (3) the proposed subdivision should be acted upon and approved regardless of the classification of Garland Road; (4) the town's actions caused the plaintiffs delay and expense, and resulted in the loss of enjoyment of their property; and (5) the plaintiffs should be awarded attorney fees. We note that the town has not sought the taking or destruction of the Turcos' land or house, but is merely defending against the plaintiffs' equitable actions. The court found for the town on all claims.

On appeal, the plaintiffs have conceded that the relevant portion of Garland Road is a class VI highway, and have not raised the matters of damages and attorney fees. Thus, the questions for this court are first whether the superior court erred in not applying municipal estoppel, and second whether the plaintiffs are entitled to subdivide their land.

This court set out the general elements of estoppel in Stevens v. Dennett, 51 N.H. 324, 333-34 (1872), which we have restated in the municipal context. The plaintiffs must show that the defendant made a false representation or a concealment of material facts; the representation must have been made with knowledge of the facts; the plaintiffs must have been ignorant of the truth of the matter; the representation must have been made with the intention that the plaintiffs should act upon it; and the plaintiffs must have been induced to act upon it to their prejudice. Town of Nottingham v. Lee Homes, Inc., 118 N.H. 438, 442, 388 A.2d 940, 942 (1978). In addition, the reliance must be reasonable, and must be based on authorized representations. City of Concord v. Tompkins, 124 N.H. 463, 468, 471 A.2d 1152, 1154-55 (1984).

The party asserting estoppel bears the burden of proving the elements, Town of Nottingham, 118 N.H. at 442, 388 A.2d at 942, and the finding of the court below will stand "unless it is unsupported by the evidence or erroneous as a matter of law," Jackson v. Ray, 126 N.H. 759, 761, 497 A.2d 1191, 1193 (1985) (quotation omitted). While municipal corporations have long been subject to estoppel, Gilbert v. Manchester, 55 N.H. 298, 303 (1875), the law does not favor its application against municipalities, Missionaries of La Salette Corp. v. Town of Enfield, 116 N.H. 274, 275, 356 A.2d 667, 668 (1976).

Plaintiffs' first basis for arguing estoppel is the conversations with the selectmen. Under New Hampshire law, there can be no estoppel by an unauthorized statement of an official, Rye Beach Village Dist. v. Beaudoin, 114 N.H. 1, 6, 315 A.2d 181, 184 (1974); Smith v. Town of Epping, 69 N.H. 558, 560, 45 A. 415, 416 (1899). Authority cannot be created by estoppel, State v. Hutchins, 79 N.H. 132, 140, 105 A. 519, 523 (1919), and one cannot rely on asserted authority, Storrs v. Manchester, 88 N.H. 139, 142, 184 A. 862, 864 (1936), or apparent authority, Trustees of Phillips Exeter Academy v. Exeter, 90 N.H. 472, 494, 27 A.2d 569, 586 (1940). This court has traditionally held that when a citizen deals with the government, one is charged with knowledge of the extent of the official's authority, Richards v. Columbia, 55 N.H. 96, 99 (1874); Tompkins, 124 N.H. at 470, 471 A.2d at 1156, and if one relies on an unauthorized representation, the law considers that no injury occurred, Smith v Town of Epping, 69 N.H. at 560, 45 A. at 416.

Courts have mitigated potentially harsh results by warning triers of fact to "be wary of imputing notice of the legal limitations upon government officials to persons who are inexperienced in the affairs of government," Tompkins, 124 N.H. at 473, 471 A.2d at 1158. "[R]eliance is reasonable 'when a person sincerely desirous of obeying the law would have accepted the information [relied upon] as true, and would not have been put on notice to make further inquiries.' " Id. (quoting United States v. Lansing, 424 F.2d 225, 227 (9th Cir.1970)). This mitigation, however, does not apply to representations made in the course...