2004-802, TOWN OF HINSDALE v. TOWN OF CHESTERFIELD

V highway that is not maintained in the winter and runs through Chesterfield The trial court found the following facts. North Hinsdale Road is a class

determination. incorrect legal standard; and (2) the facts do not support the court’s On appeal, the defendant argues that: (1) the trial court applied an

a, I (1993). We affirm. meeti ng vote to discontinue a portion of a class V highway under RSA 231:45 the decision of the Superior Court (Sullivan, J.) reversing a Chesterfield town GALWAY, J. The defendant, Town of Chesterfield (Chesterfield), appeals

and orally), for the defendant. Tower, Cro cker & Mullins, P.A., of Jaffrey (Thomas P. Mullins on the brief

Lachman on the brief, and Mr. Berkson orally), for the plaintiff. Bragdon & Berkson, P.C., of Keene (H. Neil Berkson and Susan R.

No. 200 4 - 802 Cheshire

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. O pinions are available on the Internet by 9:00 Errors may be reported by E - mail at the following address: errors in order that corrections may be made before the opinion goes to press. Hampshire, One Noble Drive, Concord, New Hampshire 03301, of any editorial Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

therefrom to the superior court for the county in which such highway and made subject to gates and bars, may appeal discontinue any highway, or discontinue any highway as an open Any person or other town aggrieved by the vot e of a town to

p. 2 231:48 (1993) states: parties agree applies. Entitled “Appeal from Discontinuance; Damages,” RSA 304, 308 (2003). We begin our analysis with a review of the statute that both question of law, we review the decision de nov o. HippoPress v. SMG, 150 N.H. As the trial court’s decision to apply a particular legal standard is a

compelling evidence that the town acted unreasonably. 891 (Kan. 1968), which states that the town vote should be affirmed absent standard articulated in Eastborough Corp. v. City of Eastborough, 441 P. p. 2 2d incorrect legal standard. Chesterfield asserts that we should apply the We first consider Chesterfield’s argument that the trial court applied an

was minimal. Chesterfield of maintaining the quarter - mile section of N orth Hinsdale Road route that police used for backing up other police officers, and the cost to Yankee Power Plant. Discontinuance of North Hinsdale Road also cut off a residents living on Plain Road to flee from a nuclear accident at the Vermont Discontinuing the road eliminated the only reasonable route for Hinsdale important not only for public convenience, but also for public safety. The trial court found that keeping North Hinsdale Road open was

the dis continuance. still reach Route 63, but had to travel as much as ten miles farther than before After the discontinuance, Hinsdale residents living on or near Plain Road could was careful not to cut off its own residents from using North Hinsdale Road. gates that blocked North Hinsdale Road at the Hinsdale border. Che sterfield Chesterfield. After the town vote, the Chesterfield Selectmen installed locked Plain Road in Hinsdale from using North Hinsdale Road to reach Route 63 in mile into Chesterfield. Closing this part of the road blocked residents living on beginning at the Hinsdale border and continuing northerly for a quarter of a subject to gates and bars, a quarter - mile section of North Hinsdale Road, On March 11, p. 2 20 03, the Chesterfield Town Meeting voted to discontinue,

Hinsdale Road in recent years. settled part of Hinsdale, which has contributed to increased traffic on North in Chesterfield and Route 119 in Hinsdale. Plain Road runs through a thickly These three roads provide a means of traveling north - south between Route 6 p. 3 3 into Hinsdale, where it becomes Plain Road Extension, and then Plain Road. 3

We are therefore left with little statutory guidance from the legislature as to set forth the substantive legal standard to apply in discontinuance appeals. Although RSA 2 p. 3 31:48 provides for like proceedings, the statute does not

the statute does not address what legal standard should apply. discontinuances. Chesterfield agrees with this interpretation, but argues that requires that trial courts apply de novo review to a town’s vote in appeals of entails “like proceedings” to an appeal of the layout of a highway, RSA 2 p. 3 31:48 acceptable). In providing that an appeal of the discontinuance of a highway when de novo review is compelled, no form of appellate deference is see also Salve Regina Colleg e v. Russel, 499 U.S. 225, 238 (1991) (stating that decisions made below. In re Juvenile 2002 - 511 - A, 149 N.H. 592, 594 (2003); reviewing court decides the matter anew, neither restricted by nor deferring to Manchester, 123 N.H. 505, 507 - 08 (1983). De novo review means that the v. Town of Tilton, 147 N.H. 57, 61 (2001); V.S.H. Realty, Inc. v. City of highway receives de novo review on appeal to superior court. Rodgers Dev. Co. We have previously determined that the laying out of a class IV, V, or VI

appeals of the layin g out of such a highway. appeals of the discontinuance of any highway should proceed similarly to laying out of class IV, V, and VI highways,” the statute plainly requires that “like proceedings shall be had on such petition as in the case of appeals in the a class V highway, and therefore applies to the instant appeal. In stating th at RSA 2 p. 3 31:48 expressly applies to appeals from town votes to discontinue

omitted). Woodview Dev. Corp. v. Town of Pelham, 152 N.H. 114, 116 (2005) (citations

the legislature did not see f it to include. consider what the legislature might have said or add language that beyond it for further indication of legislative intent, and we will not a statute's language is plain and unambiguous, we need not look ascribe the plain and ordinary meanings t o the words used. When first examine the language of the statute, and, where possible, as expressed in the words of the statute considered as a whole. We review de novo. We are the final arbiters of the legislature's intent The interpretation of a statute is a question of la w, which we

We apply the following standard of review for statutory interpretation:

(Emphasis added.)

IV, V, and VI highways. . . . on such petition as in the case of appeals in the laying out of class highway is situate by petition . . . . [L]ike proceedings sha ll be had p. 4 4

by amending the statute. legislature’s intent, however, the legislature is free to adopt a different standard consistent with that intent. If our holding should be contrary to the and disco ntinuance appeals to have similar legal standards, our holding here is imposes upon the town”). To the extent that the legislature intended for layout N.H. at 60 (balancing “the public interest in the layout against the burden it whether an occasion exists for the layout of a road. See Rodgers Dev. Co., 1 p. 4 47 This standard is analogous to part of the legal standard for deter mining

to discontinue the road, with the burden of proof resting on the aggrieved town. the burden that maintenance of the road would impose on the town that voted case balances the aggrieved town’s interest in t he road’s continuance against aforementioned factors, we conclude that the substantive legal standard in this the appellee town would bear in continuing the road. Considering the Accordingly, the legal standard in this case must also consider the burden that v. Davis, 73 N.H. 72, 7 p. 4 4 (1904); see also Loughlin, supra § 54.04, at 583. for a town in deciding whether or not to discontinue the highway. New London stated that the burden of maintaining a highway is a significant consideration appellee town, which voted to discontinue the highway, we have previously interest that an aggrieved town has in continued use of the highway. As for the We therefore conclude that the legal standard in this case must consider the adjoining town, the adjoining town must receive notice of the discontinuance. when one town discontinues a highway that connects to a highway in an another’s vote to discontinue a highway. RSA 231:44 (1993) provides that interests of adjoi ning towns. RSA 231:48 provides that one town may appeal We first note that the legislature has manifested an intent to protect the

a discontinuance, those conditions must be read into the statutes). New Hampshire statutes do not expressly set forth the conditions necessary for Municipal Law and Taxation § 5 p. 4 4.04, at 583 (1993) (concluding th at, because the statutory scheme. See id; cf. 16 P. Loughlin, New Hampshire Practice, appropriate legal standard by considering the policy sought to be advanced by case law that would settle this issu e. Accordingly, we will determine the that assists us in determining the intended legal standard. Nor have we found Our review of the legislative history of RSA 231:48 uncovered nothing

Aeronautics, 1 p. 5 52 N.H. 30, 38 - 39 (2005). advanced by the entire statutory scheme.” Hughe s v. New Hampshire Div. of the legislature's intent in enacting them, and in light of the policy sought to be legislative history to aid our analysis. Our goal is to apply statutes in light of what legal standard to apply. “If a statute is ambiguous . . . we consider 5

concurred. BRODERICK, C.J., and NADEAU, DALIANIS and DUGGAN, JJ.,

substantially more than some evidence to support the trial court’s decision. that the trial court applied the proper balancing test and that there was the burden that continuing the road imposed on Chesterfield. We conclude interest of Hinsdale’s residents in continuing No rth Hinsdale Road outweighed Road and are bothered by the traffic.” The trial court determined that the Hinsdale,” because “some Chesterfield residents reside close to North Hinsdale create a barricade or plug or roadblock to the traffic coming from or to deliberate purpose of closing the quarter of a mile section of the road was to that the cost of maintaining North Hinsdale Road was minimal; and (2) “the Road, the trial court found: (1) a Chesterfield road agent specifically stated minutes. In weighing the burden on Chesterfield to maintain North Hinsdale situations, by reducing their response time as much as twenty to thirty Chesterfield and Hinsdale to provide better backup, particularly in emergency Road; and (4) North Hinsdale Road allowed t he police departments of both Route 63 by traveling as much as ten miles less than without North Hinsdale (3) North Hinsdale Road allowed more than 300 Hinsdale residents to reach Hinsdale, and th at use was increasing at the time of Chesterfield’s town vote; River; (2) North Hinsdale Road received substantial use by residents of at the Vermont Yankee Nuclear Power Plant or flooding from the Connecticut route for some Hinsdale residents from such potential disasters as an accident Road by finding: (1) the discontinuance cut off the only reas onable escape The trial court assessed Hinsdale’s interest in continuing North Hinsdale

which to review the trial court’s de novo determination. Accordingly, we co nclude that “some evidence” is the appropriate standard by absence of gross mistake or fraud.” Rodgers Dev. Co., 147 N.H. at 60. supported by some evidence, and we will not disturb its determination in the superior court’s conclusion that occasion exists for the layout of roads must be court’s decision in a layout appeal. We have previously determined th at “the discontinuance appeal should be the same as our standard in reviewing a trial it clear that our standard in reviewing a trial court’s decision in a in nature. Alison H. v. Byard, 163 F.3d 2, 4 (1st Cir. 1998). We therefore find discontinuance appeal as a layout appeal. Standards of review are procedural reading of this language directs us to apply the same procedural standards to a We turn again to th e “like proceedings” language of RSA 231:48. A plain we must determine the standard by which we review the trial court’s decision. reverse Chesterfield’s town vote to discontinue North Hinsdale Road. To do so, We next consider whether the facts support the trial court’s decision to