Taylor Community v. City of Laconia et al.

had plowed, maintained and repaired the Cul-de-sac since 1987; and that all that remained was for the City Council to vote to layout the Cul-de-sac as a public highway.

The Council granted the Petition after a public hearing, finding that occasion for layout exists. The Council specified its reasons in the minutes of the hearing. The Council also found that no compensation was due Taylor because the Cul-de-sac was dedicated to public use since 1987. The Council reasoned that Taylor suffered no loss because the dedication prevented Taylor from making private use of the Cul-de sac. (Intervenors’ Appx. Ex. L-2 at 4-5).

Taylor’s RSA 231:34 de novo appeal to the superior court followed. V.S.H. Realty, Inc. v. City of Manchester, 123 N.H. 505, 507-508, 464 A.2d 111-1113 (1983)

In the Superior Court, Lahey moved for summary judgment and Taylor cross

motioned. The court heard oral arguments and then issued its written orders.

IV. Argument Standard of Review on Appeal

A Superior Court’s finding of occasion to layout a public highway will not be disturbed on appeal if there is “some evidence” to support the finding. Town of Hinsdale v. Town of Chesterfield, 153 N.H. 70, 74 (2005) (“We have previously determined that

‘the superior court's conclusion that occasion exists for the layout of roads must be supported by some evidence, and we will not disturb its determination in the absence of gross mistake or fraud.’ Rodgers Dev., Co., 147 N.H. at 60, 781 A.2d 1029. Accordingly, we conclude that "some evidence" is the appropriate standard by which to review the trial

court's de nove determination.

It is important to note four points at the outset that render much of Taylor’s long factual recitations and arguments in its brief irrelevant.

First, Taylor’s appeal to the superior court is de novo. So, any alleged errors Taylor argues that the City Council made in its layout hearings are irrelevant to the de

novo appeal.

Second, Taylor does not challenge in its notice of appeal or brief the trial court’s finding that the subdivision process in 1987 dedicated the Cul-de-sac to public use. This means that all the trial court’s findings on the issue of dedication, factual and legal, stand. Therefore, Taylor’s discussion about whether the 1987 planning board approval, conditioning the PUD development on roads remaining “private”, also applied to the separate approval of the two lot subdivision and Cul-de-sac is irrelevant. (Taylor Brief at 12-13) The extensive discussion of the street analysis done by public works director Anderson, all the spreadsheets he prepared, and what Anderson believed was meant by “private” is irrelevant. (Taylor Brief at 13-15). (Mr. Anderson does correctly state that an “accepted” street is one where the governing body has committed to expend public funds for its maintenance and repairs. (Taylor Appx. at 49, Exhibit 1 deposition pp. 61 and 64).

Third, Taylor is not challenging the court’s finding that it is not entitled to compensation.

Fourth, Taylor has not identified in its brief any rights that are in play other than ownership of the Cul-de-sac and Taylor’s right to use it for its own development purposes. The court, the city and the intervenors all agree that as an abutter, Taylor retains a title interest to a portion of the underlying Cul-de-sac fee. Harrington at 348 (abutting property owners retain “the fee in the soil to the center of the street..., ” subject to the public’s right of passage).

Taylor’s alleged right to use the Cul-de-sac for its own development purposes is

the only remaining claim.

Occasion to layout a highway

Layout is one of the ways that the governing body of a municipality can create a public highway. RSA 229:1. Ifa new road is to be created, a “taking” from the owner of the subject property is often involved. The municipality must apply the full two-prong

Crowley test to determine if the taking is justified. Crowley v. Town of Loudon, 162 N.H. 768, 35 A.3d 597 (2011). The municipality must first balance the public interest in the layout against the rights of the affected landowner. See Nashua v. Gaukstern, 117 N.H. 30 (1977), (where the layout of a public highway is an eminent domain proceeding). The court applies the eight Crowley public interest factors. Id. at 773-774. If the rights of the affected landowner outweigh the public interest, there is no occasion for laying out the road and taking of the rights in the land. If, on the other hand, the public interest justifies taking the land without the landowner's consent, then the court must engage in a

second step, which is to balance the public interest in the layout against the burden imposed upon the town. If the balancing required by the second step favors the public

interest, occasion for the layout exists. Id. at 773-776.

The municipality’s task is made easier when, as here, the property under consideration has already been dedicated to public use. There is no taking involved as the owner has already voluntarily relinquished its rights to use the property for its own purposes in favor of public use. The layout procedure may be used to layout a Class V highway over a dedicated street that has not been formally accepted. “A laying out or locating and defining the limits of a road in the manner prescribed by statute is a proper method of creating a public highway. (citations omitted). This laying out is not limited to the creation of a new road but inciudes also the making into public highways private roads already in existence. (citation omitted).” Locke Development Corp. v. Town of Barnstead, 115 N.H. 642, 643 (1975). See also Alfano, Roads Revisited, 46 NHBJ 56, 59 (Fall 2005).

Dedication of the Cul-de-sac to Public Use

Even though Taylor has not appealed the trial court’s finding that the Cul-de-sac was dedicated, Intervenors will address it briefly given its importance to the case. The dedication is easily proven as found by the trial court. (Order at 56-57). In 1987, Taylor

submitted a subdivision plan to the Laconia Planning Board. The plan depicted the Cul- de-sac with two lots around it. (Order at 53, Intervenors’ Appx. Ex. L-6 at 8). The plan was approved by the Planning Board. Taylor conveyed the lots to third parties pursuant to the plan. (Intervenors’ Appx. 11-14, Ex. L-8 Deeds to Third Parties Per 1987 Subdivision Plan). These are the elements of dedication to public use. RSA 231:51, Harrington v. Manchester, supra (“In addition to conveying these private rights in the proposed streets,

the company by thus platting and selling the lots manifested an unequivocal intention to dedicate the streets to public use; and they are therefore to be regarded as dedicated to such use.”). Id. at 348. Taylor admits these elements in response to Lahey’s Statement of Material Facts 1- 7. (Intervenors’ Appx. at-17, Taylor Answers to Lahey Statement of Material Facts).

An owner who dedicates property to public use is not entitled to compensation.

Hersh at p. 3 above. Taylor is not claiming any compensation

Taylor’s Acceptance Argument

Taylor does not recognize the standalone significance of dedication. Taylor believes that unless the City “accepted” the Cul-de-sac as a public highway for purposes of maintenance responsibility, Taylor retains rights to use the property for its own purposes. This misperception was noted by the Supreme Court in the controlling case Harrington at 349, wherein it stated,

Whether an acceptance of the dedicated streets is necessary to perfect the gift and vest the right of passage in the public is a matter upon which different conclusions have been reached, due, no doubt, to a failure to distinguish between what is necessary to vest the right of passage in the public and what is necessary to constitute an acceptance, such as will render the city or municipality responsible for the construction and maintenance of the streets.

Id.

The Court went on to hold, citing the New Jersey Supreme Court with approval, But an acceptance by the public authorities, or public user, is not essential to conclude the owner from his power of retraction, when his

intention to abandon his property and dedicate it to public uses is once unequivocally manifested.

Id. 349.

That dedication survives independent of acceptance is confirmed by its statutory framework. RSA 231:51 describes the elements that create dedication, independent of acceptance. RSA 231:52 then requires, independent of acceptance, municipality action to release the dedication.

The dedication prevents Taylor from making any use of the Cul-de-sac other than as a member of the public. Only the Laconia City Council can release the dedication pursuant to RSA 231:52. (Order at 59).

The trial court reviewed the case de novo and applied the Crowley two-prong test. The trial court found that Taylor dedicated the Cul-de-sac to public use in 1987 as part of a subdivision plan, approval and sale of lots. (Order) While Taylor retains title to a portion of the underlying fee as an abutter, by dedicating the property it already gave up its right to use the property for its own purposes. (Order at 59).

In applying the first prong of the Crowley layout test, the balancing of the public interest in the layout against the rights of the affected landowner the trial court found that the dedication to public use effectively rendered the first prong moot. The trial court found no need to engage in an analysis of the eight Crowley factors (Id. 773-774) to determine the public interest since Taylor retained no rights that were affected by the layout to balance against. (Order at 58). The court’s position was the same when it clarified that Taylor had a title interest in the underlying Cul-de-sac fee. Taylor retains its fee title interest irrespective of the layout. (Order at 59).

As to the second prong, the court found that the public interest easily outweighed any burden to the city.

The court concluded that Taylor’s remedy was to petition the City Council pursuant to RSA 231:52 to release the dedication, which it had never done. The court

dismissed Taylor’s /aches claim for that reason. (Order at 59).

VI. Relief Requested

Intervenors respectfully request the Court to affirm the trial court’s finding of occasion for layout of the Cul-de-sac, and rule that the Taylor Community has suffered

no loss and is not entitled to any compensation.

Date: 12/17/2024 Respectfully submitted,

I hereby certify that on this date this document was filed through the ECF system and will be sent electronically to all registered participants as identified on the Notice of Electronic Filing (NEF).