Taylor Community appealed a Superior Court decision that ruled in favor of the City of Laconia that there was a proper occasion to layout a cul-de-sac as a public highway notwithstanding the residual fee interest enjoyed by Taylor. The cul-de-sac had been constructed by Taylor as part of subdivision of land that was approved in 1987, and although Taylor represented to the Laconia Planning Board that the cul-de-sac would be built and deeded to the City; it was only built but never deeded. The City maintained the cul-de-sac until 2019 with members of the public and public services using the cul-de-sac up to the present.
Taylor sought permission from the planning board to convert the cul-de-sac to a hammerhead design, and that request was denied and upheld on appeal to the Superior Court. Later, other interested parties (intervenors) petitioned the City to layout the cul-de-sac as a public highway pursuant to RSA 231:8. The City Council granted that request and Taylor appealed that decision to the Superior Court. The trial court was tasked with determining whether there was a sufficient “occasion” to warrant making the cul-de-sac a public highway. The Superior Court ruled in favor of the City, a decision that was affirmed on appeal to the Supreme Court.
Citing to a prior decision in Crowley v. Town of Loudon, 162 N.H. 768, 773 (2011) the Court stated that the determination of occasion to grant a layout must be based on a balancing of the public interest in the layout against the rights of the affected landowner. If the rights of the affected landowner outweigh the public interest, there is no occasion for laying out the road. If, on the other hand, the public interest justifies taking the land without the landowner’s consent, then the court must engage in a second step, which is to balance the public interest in the layout against the burden imposed upon the municipality. If the balancing required by the second step favors the public interest, occasion for the layout exists.
The Supreme Court agreed with the trial court that the public had a demonstrated interest in using the cul-de-sac for travel and to accommodate public services due to its continued public use since 1987. The Court further agreed with the trial court that Taylor’s private interest in the cul-de-sac was so encumbered by its dedicated state that “even a scant public interest” outweighed it.
As the Court observed, a landowner may now petition for release of a dedication pursuant to RSA 231:52 or a dedication may be released by vote of the governing body of a city or town pursuant to RSA 231:51. Nonetheless, an offer of dedication remains open until it has been accepted, thereby creating a public highway. Because there was no release of Taylor’s offer of dedication there was a public easement for travel over the cul-de-sac, and the public had a vested right to accept the cul-de-sac without cost at any time.
READ MORE IN COURT DECISION!
Practice Pointer: The public has a right to accept a dedicated easement at any time after dedication, provided the easement has not been released upon petition or by the governing body.