Court Affirms Test for ‘Occasion’ to Lay Out a Highway; Selectmen’s Denial Is Upheld

Crowley v. Loudon; The Ledges Golf Links, Inc. v. Crowley
Crowley v. Loudon; The Ledges Golf Links, Inc. v. Crowley
No. 2010-656
Saturday, December 8, 2001

At issue in this case was the status of Green View Drive. (Please note that several parties and issues not relevant to municipal law were involved but are not discussed here.) A developer obtained planning board approval for a subdivision with a private road. Ten years later, the selectmen were petitioned to accept the road as a Class V town road, but denied the request. The petitioners then brought an action in the superior court to lay out Green View Drive as a public road under RSA 231:38, I. The superior court also denied the request, finding that there was no “occasion” for the layout. The petitioners appealed to the Supreme Court.

“Occasion” exists for layout of a town highway if the public interest requires the town’s acceptance of the road. Citing its earlier decision in Green Crow Corp. v. New Ipswich, 157 N.H. 344 (2008) (summarized in the July/August 2008 issue of New Hampshire Town and City), the Court affirmed the two-part test to determine whether “occasion” exists. First, the court must balance the public interest in the layout against the rights of the landowner whose land will become a public road. If the rights of the landowner outweigh the public interest, there is no occasion to lay out the road. On the other hand, if the public interest justifies taking the land without the landowner’s consent, then the court must move to the second step, which is to balance the public interest in the layout against the burden imposed upon the town. If the balance favors the public interest, then occasion for the layout exists.

In assessing the public interest, the court may consider several factors, including (1) integration within an existing road system; (2) ease of existing traffic flow; (3) improvement to convenience of travel; (4) facilitation of transportation for school children; (5) improved accessibility to business district and employment centers; (6) improved accessibility for fire, emergency and police services; (7) whether it would benefit a significant portion or just a small fraction of the town tax base or year-round residents; and (8) anticipated frequency of road use. Although the Court commented on various factors a court might consider in assessing the burden to the town (anticipated construction and ongoing maintenance costs related to the road itself, as well as the impact on the town’s infrastructure due to municipal growth, such as increased costs for school, fire, police and emergency services), only the maintenance cost appeared to be relevant to the result in the case.

In this case, the landowner requested the layout, so the Court moved directly to the second part of the test and found that the public’s interest in laying out the road was minimal. There were few houses on the road, it was not frequently used, and, as a dead-end road, it had no impact on traffic flow or ease of travel. Existing school bus stops were sufficient, and the selectmen’s previous designation as an emergency lane under RSA 231:59-a meant emergency services had adequate access. The Court found the burden to the Town (added expense from repairing or reconstructing the road because the adjacent golf course’s water and electrical lines ran beneath it), on the other hand, outweighed this “minimal” public interest.