2007-559, GREEN CROW CORP. v. TOWN OF NEW IPSWICH

Wiggin & Nourie, P.A.

No. 2007-559 Hillsborough-southern judicial district

without ruling, see BRODERICK, C.J. This case comes before us on an interlocutory appeal

THE SUPREME COURT OF NEW HAMPSHIRE exists for the layout?

existing Class VI road to Class V standards to show occasion permission from the Selectmen to upgrade and reclassify an (1) Does RSA 231:28 require a petitioner requesting

Tower, Crocker & Mullins, P.A.

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. Opinions are available on the Internet by 9:00 two questions:

and orally), for the defendant.

Panciocco on the brief, and Mr. Michael orally), for the plaintiff. to press. Errors may be reported by E-mail at the following address:, of Manchester (Gregory E. Michael and Patricia M.

editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any 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 22 as interpret a statute to lead to a reasonable result and review a

p. 2 have said, or add words not included in the statute. We

language is ambiguous, consider what the legislature might and will not examine legislative history unless the statutory plain and ordinary meaning of the words used in the statute

existed for the requested highway upgrade and reclassification. See petition, finding that the plaintiff failed to establish that a proper “occasion” construction of approximately 130 new homes. The defendant denied the

expressed by the words of the statute itself. We look to the

selectmen’s June 20, 2006 hearing, the phased development would involve

We are the final arbiter of the meaning of a statute as

construction are well-settled: Both questions require statutory interpretation. Our rules of statutory

appended to the plaintiff’s brief, as well as the minutes of the board of subdivision to be located along and off the Road.” According to a map from the Town of New Ipswich Planning Board for a three (3) phase cluster

ruling. see The superior court transferred both questions of law to this court without The following facts are taken from the interlocutory appeal statement,

conditioned upon “obtaining final, unappealable approvals to its satisfaction

development that could result from the upgraded and reclassified highway.

three phases totaling approximately 4,100 linear feet, at its own expense,

was not permitted to consider anticipated impacts associated with potential remand. We answer the first question in the affirmative, the second in the negative, and

class VI highway. Specifically, it requested approval to upgrade the highway in status? and reclassify as a class V highway certain portions of Binney Hill Road, a of selectmen of the defendant, the Town of New Ipswich, to conditionally lay out

RSA 231:8 did not apply to its petition, and, that even if it did, the defendant (2001). There, the plaintiff contended that the occasion requirement under Wolfeboro Neck Prop. Owners Assoc. v. Town of Wolfeboro, 146 N.H. 449, 452 (1993). The plaintiff appealed to the superior court. See RSA 231:34 (1993); may result from the upgrade of the Class VI road to Class V RSA 231:8 anticipated impact associated with the development that Corporation, submitted a petition pursuant to RSA 231:28 (1993) to the board the Selectmen consider as part of the occasion analysis the

1153, 1155 (2008), unless otherwise noted. The plaintiff, Green Crow to the upgrade and reclassification under RSA 231:28, may Alonzi v. Northeast Generation Services Co., 156 N.H. ___, ___, 940 A.2d (2) If the Court finds that the occasion analysis applies paid over time by the beneficiaries of the upgraded road, id p. 3 highways, streets, roads or traveled ways.” RSA 231:29 (1993). They may be assessments reflect “[t]he cost of constructing, reconstructing or repairing such

RSA 231:28 (emphasis added) (“conditional layout provision”). Betterment

provisions of RSA 231:29. betterment assessments shall be assessed under the

regulations previously established by the town. The

the highway or street construction standards and streets, roads, or traveled ways to conform in every way with constructed, reconstructed or repaired such highways,

selectmen may construct, reconstruct, repair or cause to be

betterments have been completed, the Town is responsible for “all further

by the selectmen. . . . If a highway is so laid out, the

on their lands until paid in full, RSA 231:30 (1993). After the approved

or repairs, and the estimated costs thereof shall be presented hearing details of the proposed construction, reconstruction layout, however, a public hearing shall be held . . . at which Weare Land Use Assoc. v. Town of Weare

and requirements currently in effect in the town, the

Whenever, pursuant to the provisions of this chapter

in RSA 231:29-33. Prior to commencement of conditional with betterment assessments as provided in this section and appreciable extent, the purpose of the statute. selectmen may conditionally lay out roads upon compliance pass an act leading to an absurd result and nullifying, to an

class VI highway does not conform to construction standards existing class VI highway and such private right-of-way or private rights-of-way or to lay out a class V highway over an the selectmen receive a petition to lay out roads over existing

provides, in pertinent part: “Conditional Layout for Existing Private Rights-of-Way or Class VI Highways,” incorporates the occasion requirement in RSA 231:8. RSA 231:28, entitled We first address whether the conditional layout provision, RSA 231:28, associated sections. The legislature will not be presumed to I particular provision, not in isolation, but together with all

70, 73 (2005) (quotation omitted). entire statutory scheme.” Town of Hinsdale v. Town of Chesterfield, 153 N.H. intent in enacting them, and in light of the policy sought to be advanced by the (citations omitted). “Our goal is to apply statutes in light of the legislature’s

p. 4 Moreover, RSA 231:28, by itself, provides no impetus to the selectmen to

231; namely, RSA 231:8. reading of this language incorporates the “Petition” provision of RSA chapter

to the selectmen “pursuant to the provisions of [chapter 231].” Any reasonable

We emphasize that RSA 231:28 explicitly requires that a petition be submitted or to lay out a class V highway over an existing class VI highway.” RSA 231:28. selectmen receive a petition to lay out roads over existing private rights-of-way

authority, however, is that “pursuant to the provisions of . . . chapter [231], the

assessments. A prerequisite to the selectmen’s ability to exercise this

selectmen to lay out a highway conditioned upon compliance with betterment The conditional layout provision, RSA 231:28, extends authority for

the Town.

grant the conditional road layout. Inclusion of the petition provision, RSA

RSA 231:8 into the conditional layout provision of RSA 231:28. We agree with 4 whole, evinces a legislative intent to incorporate the occasion requirement of language of RSA 231:28, as well as the structure of RSA chapter 231 as a

within the provision itself to guide the exercise of the discretionary authority to

their town for which there shall be occasion

secure a conditional layout. The Town argues, however, that the plain

. . . .” RSA 231:28 (emphasis added). No parameters, however, are identified conditionally lay out roads upon compliance with betterment assessments

highway or alter any such existing highway within

231:28 stands alone, and if its requirements are satisfied, a petitioner may incorporate the occasion requirement under RSA 231:8. It contends that RSA grants specific and detailed authority to the board of selectmen and does not Green Crow argues that the conditional layout provision, RSA 231:28, chapter 231 entitled “Laying Out Highways.” See The betterment assessment provisions fall within a subpart of RSA

with federal aid highway funds, and class V or VI new class IV highway not financed in whole or in part Selectmen of a town, upon petition, may lay out any

RSA 231:8 (emphasis added).

and expenses of constructing and maintaining it . . . .”).. individual the selectmen may require him to bear such portion of land damages

repair and maintenance” of the highway at issue. RSA 231:33 (1993); but

provides: Supp. 2007). Also within that subpart is RSA 231:8, entitled “Petition,” which

RSA 231:23 (1993) (“Whenever a highway will be of special advantage to any

Notwithstanding any other provisions of this chapter to the RSA 231:28 incorporates the occasion requirement of RSA 231:8. Accordingly, language similar to RSA 231:22. Based upon the foregoing, we conclude that 231:28 from the occasion requirement of RSA 231:8, it could have used Had the legislature intended to except conditional layouts under RSA

in accordance with RSA 231:8, and all the provisions of this directed to treat the otherwise exempted petition as one filed in accordance petition filed for the layout of a new class IV, V or VI highway RSA 231:22. If, on the other hand, a timely objection is filed, the selectmen are that the petitioner in fact has no other access to his land by public highway.”

Furthermore, RSA 231:22 requires Discontinued Highway.” That provision provides, in pertinent part: language the legislature chose to use in RSA 231:22, entitled “Previously In addition, the phrasing of RSA 231:28 stands in stark contrast to the days after the posting and mailing of such notice, the abide in granting the requested road layout are identified. objection to such layout is filed with the selectmen within 60 of the provision itself, therefore, the standards by which the selectmen must discontinued highway was located. . . . Unless written

said 60-day period, the petition shall be deemed to be a

roadway if no timely objection to the petition is filed and “the selectmen find

RSA chapter 231, including RSA 231:8 and its occasion requirement. plain that RSA 231:22 stands alone, exclusive of other contrary provisions of RSA 231:22 (emphasis added). The emphasized introductory language makes granting a conditional layout under RSA 231:28. chapter shall be applicable thereto. occasion operates as the framework within which the selectmen are to consider gates and bars, a highway located where any previously roadway “for which there shall be occasion.” RSA 231:8. In other words,

layout is filed with the selectmen prior to the expiration of public highway. . . . In the event written objection to such that the petitioner in fact has no other access to his land by location in which it previously existed if the selectmen find highway shall be laid out, subject to gates and bars, in the

highway may petition the selectmen to layout, subject to layout, because it provides that the selectmen may lay out the petitioned contrary, any owner who has no access to his land by public 231:8, establishes necessary guidance for the granting of a requested road p. 6 Rodgers

layout exists. second step favors the public interest, occasion for the it imposes upon the town. If the balancing required by the

balance the public interest in the layout against the burden

land without the landowner’s consent, the second step is to it. If, however, the public interest justifies the taking of the layout, the layout is not justified and there is no occasion for

the affected landowner outweigh the public interest in the

road system, Rockhouse

against the rights of the affected landowner. If the rights of

93 N.H. 335, 339 (1945); ease of existing traffic flow, Amoskeag Industries, 93

in its assessment of the “public interest” prong: integration within an existing identified the following factors, among others, that the trial court may consider The first step is to balance the public interest in the layout, 147 N.H. at 59-60 (citations omitted). In prior cases, we have

We have outlined a two-step process for assessing occasion:

and not simply by examining isolated words and phrases . . . .” Appeal of Ann which is determined by examining the construction of the statute as a whole, competing interests. See plain and ordinary meaning, we must keep in mind the intent of the legislation,

130, 134 (1990). town.” Rockhouse Mt. Property Owners Assoc. v. Town of Conway, 133 N.H. public need for the roads against the burden the roads would impose upon the

452 (quotation omitted). Assessing occasion involves an equitable balancing of not defined under RSA chapter 231. “Although we give undefined language its interest requires the town’s acceptance of the roads,” Wolfeboro, 146 N.H. at determined that “[o]ccasion for the lay out of public roads exists if the public p. 6 Rodgers Dev. Co. v. Town of Tilton, 147 N.H. 57, 59 (2001), and have We have considered the meaning of occasion in several prior opinions, permits the board of selectmen, or the superior court upon de We next consider whether the occasion requirement of RSA 231:8 A

that road. class VI road to a class V road must show that occasion exists for the layout of

result from the upgrade of the Class VI road to Class V status.” “Occasion” is consider “the anticipated impact associated with the development that may

p. 7 analysis to the impact of the highway itself, and, particularly, to the burden of assessing the “town burden” prong, the board of selectmen should confine its improperly acted in the capacity of the planning board. It asserts that when

selectmen considered land use and municipal growth issues, and thereby

and noncompliance with the Town’s Master Plan. highway upgrade and reclassification would cause the Town, the board of Town’s schools, fire, emergency and police systems; environmental impacts; factors as pertinent to assessing “town burden”: increased burden on the Green Crow contends that when reviewing the burden the requested

its land adjoining the roadway. seeking to upgrade a roadway to facilitate the subdivision and development of already occurred. Here, we are faced with the circumstance of a developer

with potential future development. Specifically, it identifies the following court on de novo review, should be able to consider the impacts associated interest and the town burden, the board of selectmen, and thus the superior other hand, the defendant argues that in order to properly balance the public

increased costs related to school, fire, police and emergency systems, had

occurred before a petition to lay out or upgrade a roadway was pursued. See

betterment assessments. Rockhouse

pertaining to the road itself. See

impact on the town’s infrastructure due to municipal growth, such as e.g., Rockhouse, 133 N.H. at 131-32; Locke, 115 N.H. at 643. Thus, the

these prior cases the subdivision or development of the land had already

the financial risk to the Town in the event of a default on the payment of N.H. at 136-37; Jackson, 126 N.H. at 763. In Rockhouse, we also considered

exclusively at anticipated construction and ongoing maintenance costs When examining the “town burden” prong, our cases have looked almost N.H. at 339; Rockhouse Rockhouse, 133 N.H. at 135-36; Jackson, 126 N.H. at 762. (1985); Rockhouse, 133 N.H. at 135; and anticipated frequency of road use, round residents, Locke 115 N.H. at 643; Jackson v. Ray, 126 N.H. 759, 762 benefit to significant portion versus small fraction of town tax base or yearpolice services, Locke, 115 N.H. at 644; Amoskeag Industries, 93 N.H. at 338; Industries, 93 N.H. at 338-39; improved accessibility for fire, emergency and accessibility to business district and employment centers, Amoskeag children, Rockhouse, 133 N.H. at 134-35; Locke, 115 N.H. at 644; improved Industries, 93 N.H. at 339; facilitation of transportation for existing school travel, Locke Dev. Corp. v. Barnstead, 115 N.H. 642, 644 (1975); Amoskeag

p. 8 detail the process by which a municipality may manage land use planning and

on de the legislature did not intend for the board of selectmen, or the superior court statutory scheme designed by the legislature under Title LXIV, it is clear that 8

development should it grant a requested road layout under that chapter. See Rodgers Title LXIV consists of RSA chapters 672 through 677, which delineate in

upgrade under RSA 231:8.

RSA chapter 231. After examining the comprehensive planning and zoning Accordingly, the Rodgers

selectmen to consider associated impacts that may be caused by land develop [the] particular parcel for high-traffic retail use absent the layout.”

Rodgers when evaluating whether occasion exists for a requested road layout or novo appeal, to undertake the sort of analysis advocated by the Town

legislative intent on this issue is not readily apparent within the confines of Weare Land Use Assoc. requirement was incorporated within betterment assessment statute)., 153 N.H. at 511. We conclude, however, that the

entirety to discern whether the legislature intended to authorize a board of commercial development in a particular section of town” and “the inability to RSA chapter 231 entitled “Laying Out Highways,” see by the superior court in relation to the public interest prong: “keeping large RSA 231:1-:33, in its occasion analysis, however, was not before us in that case. We decided propriety of the finding of occasion, we identified the following factors assessed Because occasion is not statutorily defined, we reviewed the portion of

burden to the school system as would a residential development.” Id before us now.

(court decided case based upon assumption by both parties that occasion the evidence it considered was proper. See also Rockhouse, 133 N.H. at 133 supported by “some evidence,” id. at 60, with the underlying assumption that by reviewing whether the superior court’s finding of occasion was

occasion analysis. The legal question of what factors are relevant to the its plans to open a large supermarket on its property. In reviewing the are akin to considering municipal growth impact issues in the context of the We acknowledge that some factors examined by the superior court in Rodgers land itself. Rodgers. at 61. development potential accruing to the [supermarket] site would not present a that the superior court considered, among other things, that “the increased In Rodgers , 147 N.H. at 60. When reviewing the town burden prong, we noted

rights-of-way over land owned by other commercial entities in order to facilitate town’s board of selectmen for a conditional layout of two roads on existing

a petition for a road layout was sought prior to the actual development of the

, we faced a circumstance similar to the one before us; that is, clearly and practically as possible the best and most p. 9 The purpose of the master plan is to set down as

674:1, I (1996), and as set forth by the legislature: municipality’s master plan guides “the development of the municipality,” RSA

of “mandatory sections of the master plan.” RSA 674:18 (Supp. 2007). A A zoning ordinance may not be adopted, however, until after the adoption

“public safety facilities.” RSA 674:21, V (Supp. 2007).

things, “public road systems and rights-of-way,” “public school facilities,” and

facilities owned or operated by the municipality,” including, among other occasioned by that development for the construction or improvement of capital upon development, including subdivision, . . . to help meet the needs

674:21, I(g) (Supp. 2007), which is defined as “a fee or assessment imposed

RSA 674:16, III. Such controls can include assessment of an impact fee, RSA

can include mechanisms that regulate and control the timing of development. use of land throughout the municipality,” RSA 674:17, II (Supp. 2007). It also . . . conserving the value of buildings and encouraging the most appropriate

character of the area involved and its peculiar suitability for particular uses,

I(c), and must give “reasonable consideration to, among other things, the features, including “the density of population in the municipality,” RSA 674:16, ordinance must be designed to regulate and restrict numerous land use

include innovative land use controls, RSA 674:16, II. A municipal zoning

(1996), may adopt a zoning ordinance, RSA 674:16 (Supp. 2007), which may utilized by a municipality (such as a mayor or town meeting), RSA 672:8 example, the local legislative body, which is the basic form of government

controlling growth and managing the impact upon infrastructure. For

for a municipality to utilize in conducting its land use planning, including Within this scheme, the legislature has provided a variety of mechanisms

RSA 672:1 (Supp. 2007).

and wise use of land[.] safety and general welfare and encourage the appropriate III. Proper regulations enhance the public health,

and growing communities; [and] government to meet more effectively the demands of evolving regulations are a legislative tool that enables municipal

II. Zoning, subdivision regulations and related

government; and should continue to be the responsibilities of municipal

I. Planning, zoning and related regulations have been to effectuate them. See

p. 10 local land use under Title LXIV, the legislature has established diverse bodies In addition to creating various mechanisms for municipalities to govern

municipality and its environs[.] (b) Provide for the harmonious development of the landowners subdividing their land. RSA 674:36 (Supp. 2007); see [and]

land and regulating site plan review. See

adoption of regulations that incorporate a variety of criteria as prerequisites to expenditure of public funds for the supply of such services; special use permits, RSA 674:21, II (Supp. 2007). 2007). Furthermore, a municipality may regulate subdivisions through development, natural resources, and regional concerns. RSA 674:2, III (Supp.

board’s duties include devising the master plan, regulating the subdivision of body creates the municipality’s zoning ordinance. RSA 674:16. The planning growth within the respective community. For example, the local legislative 10

other public services, or necessitate the excessive board of selectmen may be extended the authority to grant conditional or supply, drainage, transportation, schools, fire protection, or master plan, such as transportation, community facilities, economic health, safety or prosperity by reason of the lack of water

authority and a distinct role in the task of regulating land use development and

variances and exceptions to the zoning regulations, RSA 674:13 (1996), and the 2007) (site plan). The zoning board of adjustment has the power to grant aspects of community development for consideration and inclusion within the subdivision of land as would involve danger or injury to 674:35, :36 (Supp. 2007) (subdivision regulation); RSA 674:43, :44 (Supp. RSA 674:2, I (Supp. 2007). The legislature specifically delineated various RSA 674:1 (1996) (master plan); RSA smart growth, sound planning, and wise resource protection.

and zoning board, among other bodies). Each body is granted different selectmen); RSA 672:7 (1996) (“local land use boards” include a planning board meeting); RSA 672:6, I (1996) (“local governing body” includes board of

(a) Provide against such scattered or premature other duties in a manner that achieves the principles of

regulations may: Hampshire, and to guide the board in the performance of its 672:14 (1996) (definition of “subdivision”). For example, subdivision enhancing the unique quality of life and culture of New also RSA designing ordinances that result in preserving and jurisdiction of the planning board, to aid the board in appropriate future development of the area under the selectmen sits on each land use planning board. See

p. 11 elects such persons. RSA 673:2, II (Supp. 2007). One member of a board of serve on the planning board, while in other towns the local legislative body certain towns, selectmen may have the responsibility to appoint persons to

LXIV, albeit significant, is substantially more restricted. For example, in

With respect to the board of selectmen, its sphere of authority under Title

[Title LXIV].”

fulfill its functions, promote municipal planning, or carry out the purposes of

given such powers by the municipality as may be necessary to enable it to Finally, RSA 674:1, VI provides that “[i]n general, the planning board may be body amendments of the zoning ordinance or zoning map or additions thereto.”

analysis under RSA 231:8 is an equitable one, see

“[t]he planning board may, from time to time, recommend to the local legislative

authority resting with the planning board. We recognize that the occasion

and the region.” RSA 674:3, I (Supp. 2007). Additionally, under RSA 674:1, V,

to occur within the confines of that comprehensive Title, with significant clear that the legislature intended for municipal land use planning and zoning scheme designed by the legislature under Title LXIV, we conclude that it is

issues as the “best design methods to prevent sprawl growth in the community revising or amending the master plan, a planning board may review such reviewed by planning board prior to final consideration). When preparing, 11 permits. See

Without attempting to identify all aspects of the planning and zoning

by board of selectmen or zoning board of adjustment, any proposal shall be selectmen may be granted the authority to grant conditional or special use Further, under an innovative land use control ordinance, the board of Wolfeboro, 146 N.H. at 452, (heritage commission); RSA 673:4-b (Supp. 2007) (agricultural commission).

for globally managing municipal land use planning and growth control. See

consideration as part of the annual budget.” RSA 674:8 (Supp. 2007). submitted to, among others, the mayor or the board of selectmen “for

RSA 674:21, II. Additionally, capital improvements programs are 2007) (even if innovative land use control ordinance provides for administration

assessed when planning board approves development); RSA 674:21, II (Supp. permit granted); RSA 674:21, V(j) (exaction for off-site improvements shall be board); RSA 673:4 (1996) (historic district commission); RSA 673:4-a (1996)

2007), the legislature has identified the planning board as the central authority

when planning board approves subdivision plat or site plan or when building

within the purview of the local legislative body, RSA 674:16; RSA 673:1 (Supp. municipality’s zoning ordinance, as well as various local land use boards, lies land use planning falls to the planning board. While the duty of creating the A significant portion of the responsibility and tasks of careful and wise

674:43, :44 (site plan review); RSA 674:21, V(d) (impact fees shall be assessed RSA 674:1 (master plan); RSA 674:35, :36 (subdivision regulation); RSA p. 12 12

R e m a n d e d

second interlocutory question in the negative.

effectively conducting land use planning or zoning. Accordingly, we answer the for the layout or upgrade of a highway under RSA 231:8 as a vehicle for not intend for a board of selectmen to use its authority to determine occasion

DALIANIS, DUGGAN and GALWAY, JJ., concurred.

are specific to the case before it. We conclude, however, that the legislature did and that the board of selectmen is faced with a variety of circumstances that