McDonough v. Town of Belmont

Road Discontinuance Not Inverse Condemnation
New Hampshire Supreme Court, No. 2014-0203
Friday, April 3, 2015

In this brief opinion, the New Hampshire Supreme Court determined that a road discontinuance did not amount to inverse condemnation—a taking. The plaintiff owned a property in Belmont that abutted four roads. The plaintiff tried selling the property to the town in 2009, but the town meeting declined. Shortly thereafter, the town began contemplating discontinuing one of those roads. The plaintiff was notified of the future discontinuance, and he again tried to sell the property to the town. At the 2012 town meeting, both the road discontinuance and the sale of the plaintiff’s property were submitted to the voters and accepted.

The plaintiff then brought a claim against the town for, among other things, inverse condemnation and unjust enrichment as a result of the road discontinuance. First, the New Hampshire Supreme Court determined that there was no basis for an inverse condemnation claim because the plaintiffs did not actually own the property at the time the road was discontinued. Furthermore, the town’s planning of the discontinuance did not amount to a sufficient governmental interference. Second, the plaintiff was not entitled to damages. RSA 231:49 governs the assessment of damages as the result of a highway discontinuance and allows for damages only where the property is left with no other reasonable alternative access. Assuming the plaintiff could even use this statute—an assumption the Court questioned because the plaintiff sold his property the same day as the road was discontinued—the property still had reasonable alternative access through the other three roads.

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