New Hampshire Supreme Court Affirms Discontinuance of a Road by a Town Pursuant to RSA 231:43.

Bellevue Properties v. Town of Conway
New Hampshire Supreme Court Docket No. 2019-0302, 08/25/2020
Tuesday, August 25, 2020

The New Hampshire Supreme Court affirmed the discontinuance of a road by the Town of Conway pursuant to RSA 231:43.

The Plaintiff owned a hotel abutting a retail development known as Settler’s Green in the Town of Conway. One of the three routes to access the hotel was McMillan Lane, a Class V highway.

Settler’s Green proposed a retail development that would require the discontinuance of McMillan Lane, as the development would span the road. Settler’s Green proposed an alternate, private means of access.

A warrant article to conditionally discontinue the road was drafted by the Town, providing that Settler’s Green continue to keep McMillan Road open until a suitable replacement road was constructed. The replacement road, although private, would continue to be open to the public. After an amendment at Deliberative Session, the article was adopted by Town Meeting.

The Plaintiff, reasoning that the discontinuance would cause harm to the hotel’s business, sued. On appeal, the Plaintiff made two claims: (1) the Superior Court did not correctly apply the balancing test formulated in Town of Hinsdale v. Town of Chesterfield, 153 N.H. 70 (2005), and (2) the Superior Court erroneously concluded that the Town’s interests in discontinuing the road outweighed the interests of the plaintiff and the public in the road’s continuance.

The New Hampshire Supreme Court affirmed the Superior Court’s application of the balancing test in Hinsdale, although Hinsdale formulated its test in relation to the interests of one town as compared to another town, rather than a private individual compared to a town. Here, the New Hampshire Supreme Court held that “when the town’s decision to discontinue a highway is based upon other interests, in addition to the interest in alleviating the burden of maintenance, the trial court may consider those interests in reviewing the town’s decision.”

Regarding the balancing test itself, the Court found that the multiple other entries to the hotel, the uncontested testimony of Settler’s Green’s principal that it would be willing to give an easement to the hotel over the new road, and the continued actions of Settler’s Green to hold open access to the hotel evidenced that the Superior Court correctly applied the balancing test. Thus, the Court affirmed the Superior Court decision.


Additional Information: 

Practice Pointer:  In light of these two recent decisions where the Court looked to the motivations of the town in discontinuing a highway, a town seeking to discontinue a highway should have town officials carefully explain why the discontinuance would be of a benefit to the town during deliberative session or town meeting, and ensure that such explanation is captured in the minutes of that public meeting.