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NOTICE: This opinion is subject to
motions for rehearing under Rule 22 as well as formal revision before
publication in the New Hampshire Reports. Readers are requested to notify the
Clerk/Reporter, Supreme Court of New Hampshire, Supreme Court Building,
Concord, New Hampshire 03301, of any errors in order that corrections may be
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by 9:00 a.m. on the morning of their release. The direct address of the court's
home page is: http://www.state.nh.us/courts/supreme.htm THE SUPREME COURT OF NEW HAMPSHIRE ___________________________ Carroll No. 97-159 RICHARD NEVILLE & a. v. HIGHFIELDS FARM, INC. & a. December 13, 1999 Sheehan Phinney Bass + Green, P.A., of
Manchester (Stephen E. Weyl on the brief and orally), for the plaintiffs. Cooper, Deans & Cargill, P.A., of
North Conway (Randall F. Cooper on the defendants' joint brief), Upton, Sanders
& Smith, of Concord (Russell F. Hilliard and Barton L. Mayer on the
defendants' joint brief, and Mr. Hilliard orally), for the defendants. THAYER, J. The defendants, Highfields
Farm, Inc. (Highfields) and the Town of Conway (town), appeal from a Superior
Court (Mohl, J.) order finding a circumvention of the Town of Conway Planning
Board's (planning board) authority and granting the plaintiffs' request for
injunctive relief. The plaintiffs, Richard Neville, September Neville, Edwin L.
Neville, Jr., Whitney Harvey, and Charles Harvey, cross-appeal, arguing that
the court erred in holding: (1) that the town's approval of Article 42 was not
ultra vires; and (2) that the town did not enter into an unlawful indemnity
agreement. We reverse in part and affirm in part. This case arises from the relocation of
a section of Baird Hill Road in Conway. The following facts were adduced after
a bench trial and view of the property at issue. In 1972, Baird Hill Road was
designated a scenic road and, therefore, became subject to restrictions
regarding reconstruction as set forth in RSA 231:158 (1993). Highfields owns property on Baird Hill
Road and wished to relocate part of the road. The proffered reason was that the
road's configuration and drainage system caused a nuisance and hazard to
Highfields' property. Twice in 1991, Highfields sought approval from the
planning board to relocate part of Baird Hill Road. The planning board denied
both requests. Highfields did not appeal the planning board's decisions. Instead,
it sent the board of selectmen a proposed warrant article (Article 42) for
inclusion in the warrant for the 1992 town meeting. Article 42 was adopted by secret ballot
and provided: ARTICLE
42. To see if the Town will vote to RELOCATE A PORTION OF BAIRD HILL ROAD
subject to the following procedure: (a)
To initially remove the scenic road designation from [a] portion of Baird Hill
Road . . . . (b)
To then relocate that portion of the roadway as described in subparagraph (a)
above onto other land of Highfields Farm, Inc., on such terms and conditions as
may be established by the Board of Selectmen, so long as the same is at no
expense to the town, with all such costs to be borne by Highfields Farm, Inc. (c)
Upon completion of construction of the relocated roadway to the full
satisfaction of the Board of Selectmen, to authorize the Selectmen to accept an
Easement Deed for the relocated roadway and correspondingly to convey to
Highfields Farm, Inc. a Quitclaim Deed from the Town for its interest in the old
roadway, subject to an easement of passage from its southerly end to the
entrance to Labrador Pond Road, a Class VI highway of the Town. (d)
Upon acceptance of the Easement Deed, to thereafter designate the then
relocated portion of Baird Hill Road as a scenic road, pursuant to the
provisions to RSA 231:157, without further Town Meeting vote. At Highfields' expense, the town
selectmen engaged the services of an independent engineering firm to make
specific recommendations with respect to the relocation. The firm submitted its
recommendations with a proposed location entirely on Highfields' property. In
1993, the defendants executed a relocation and indemnity agreement to relocate
part of Baird Hill Road. After the work was completed, the town issued a release
deed to Highfields. The plaintiffs own property abutting
Highfields' property on Baird Hill Road. They sought a preliminary injunction
to enjoin the relocation. The trial court denied their request. Pursuant to
Article 42, the defendants relocated Baird Hill Road. Again, the plaintiffs
sought declaratory and injunctive relief that would void Article 42 and the
actions taken pursuant to it, and restore Baird Hill Road to its original
location. The trial court ruled for the plaintiffs on their alternative
argument that the selectmen circumvented the planning board's authority. The
trial court therefore granted the plaintiffs' request for injunctive relief and
ordered that the defendants restore Baird Hill Road. The defendants appealed,
and the plaintiffs cross-appealed. The defendants raise a number of issues
on appeal. We need, however, address only one: whether the court erred in
finding that a circumvention of the planning board's authority occurred. On
cross-appeal, the plaintiffs contend that the trial court erred in holding
that: (1) the acts precipitated by Article 42 were not ultra vires and did not
violate RSA 231:158; and (2) the indemnity agreement into which the town
entered was proper. We address these issues in turn. I.
Circumvention of the Planning Board According to the defendants, the
adoption of Article 42 was a proper exercise of the town meeting's authority.
The plaintiffs contend, however, that it amounted to a circumvention of the
planning board's decision denying the relocation of a scenic road. The trial
court recognized that the enabling statutes permitted the actions taken
pursuant to Article 42, but nevertheless found Article 42 invalid because [t]he
town meeting, by its very vote on Article 42, intended . . . to do to Baird
Hill Road what the planning board refused to do, in short, to reverse the
refusal of the planning board to approve the changes .
. . . Thus, the Article 42 undesignation of the portion of Baird Hill Road . .
. was a mere pretext to achieve a result the town could not otherwise achieve
through the proper statutory mechanism, namely, the planning board. "On appeal, we sustain the
findings and rulings of the trial court unless they are lacking in evidential
support or tainted by error of law." Quirk v. Town of New Boston, 140 N.H.
124, 128, 663 A.2d 1328, 1331 (1995) (quotation omitted). When ascertaining
whether a circumvention of authority has transpired, we inquire whether the
administrative agency whose authority is allegedly being circumvented had
jurisdiction. See, e.g., Cloutier v. Epping Water & Sewer Comm'n, 116 N.H.
276, 280, 360 A.2d 892, 895-96 (1976) (town's attempt to circumvent legal
authority of commission was invalid and ineffectual because commission had sole
jurisdiction); Buxton v. Town of Exeter, 117 N.H. 27, 29, 369 A.2d 188, 189
(1977) (selectmen's attempt to circumvent board of adjustment's denial invalid
because board had sole jurisdiction to grant special exceptions and variances).
"Although the general function of the
[planning] board is to prepare a master plan for the development of the
municipality, the powers of the planning board are not limited solely to its
preparation." Town of Freedom v. Gillespie, 120 N.H. 576, 579, 419 A.2d
1090, 1092 (1980) (quotation omitted); see RSA 674:1, I (1996). Once having
created a planning board, a town may delegate additional authority to the board
to enable it to promote municipal planning. RSA 674:1; Town of Freedom, 120
N.H. at 579, 419 A.2d at 1092. In addition, once a planning board is created
and a statute grants exclusive jurisdiction to the board over a particular
subject matter, the range of issues the town may consider relative to that
subject matter becomes severely narrowed. See Ehrenberg v. City of Concord, 120
N.H. 656, 661, 421 A.2d 128, 131 (1980) (decided under prior law); see also
Mudge v. Precinct of Haverhill Corner, 133 N.H. 881, 885, 587 A.2d 603, 605
(1991); Levasseur v. Board of Selectmen, 116 N.H. 340, 342, 358 A.2d 665, 666
(1976). Where a town duly appoints an entity to
handle specified matters and later attempts to overturn a decision of that
entity by town vote, we have found a circumvention, rendering the town's
decision invalid. See Cloutier, 116 N.H. at 280, 360 A.2d at 896. "Such a
state of affairs would exist in derogation of a statutory framework that
requires comprehensive land use planning as the major tool of growth
regulation." Ehrenberg, 120 N.H. at 661, 421 A.2d at 132. The planning
board, however, "has only those powers granted to it; it cannot usurp
powers belonging to another town body or the town as a whole." Beck v.
Town of Auburn, 121 N.H. 996, 998, 437 A.2d 289, 291 (1981). In this case, the only entity with
jurisdiction to accomplish at least part of Article 42 was the town. The planning
board lacked authority to designate a scenic road or to remove a road's
designation as scenic. The only statutorily authorized entity to do so is a
town through its vote. See RSA 231:157 (1993). Nevertheless, the plaintiffs
contend that only the planning board had jurisdiction to authorize moving trees
or stone walls on Baird Hill Road because, as a scenic road, it was subject to
RSA 231:158, II, which prohibits on a scenic road the
cutting . . . or removal of trees, or the tearing down . . . of stone walls . .
. except with the prior written consent of the planning board, or any other
official municipal body designated . . . . The plaintiffs argue that RSA 231:158
required the defendants to obtain approval from either the planning board or
"any other official municipal body." The plaintiffs contend that
because no other municipal body was designated, the planning board was the sole
entity vested with jurisdiction to approve the removal of trees and stone
walls. We disagree with the plaintiffs'
contention that the mere creation of the planning board divested the town of
jurisdiction to vote on Article 42. "This court, of course, is the final
arbiter of the legislature's intent as expressed in the words of the statute as
considered as a whole." Pope v. Town of Hinsdale, 137 N.H. 233, 237, 624
A.2d 1360, 1362 (1993). We interpret the words of a statute according to their
plain meaning. New London Land Use Assoc. v. New London Zoning Board, 130 N.H.
510, 514, 543 A.2d 1385, 1386 (1988). The fact that no other municipal body was
created does not mean that the town cannot vote to remove a scenic road
designation; RSA 231:157 specifically provides that the voters of a town may
rescind the designation of a scenic road. Aside from their contention that no
other municipal body was designated to approve changes to a scenic road, the
plaintiffs point to no delegation by the municipality to the planning board of
further authority or jurisdiction to govern scenic roads. Cf. Town of Freedom,
120 N.H. at 578-79, 419 A.2d at 1092 (upholding article granting more authority
to planning board than specified in statute). Thus, when the trees and stone
walls were removed on Baird Hill Road, RSA 231:158 did not apply because Baird
Hill Road was no longer designated a scenic road. This case is distinguishable from those
cited by the plaintiffs regarding circumvention. See Cloutier, 116 N.H. at 279,
360 A.2d at 896 (finding circumvention where town voted to overturn
commission's prior decision to revoke permit); Ehrenberg, 120 N.H. at 660-61,
421 A.2d at 131 (finding city council exceeded its jurisdiction by voting to
overturn planning board's approval of project where board's decision based on
considerations within its exclusive jurisdiction); Levasseur, 116 N.H. at 342,
358 A.2d at 666 (upholding town selectmen's refusal to insert article in town
warrant concerning issue over which planning board had exclusive jurisdiction);
Buxton, 117 N.H. at 29, 369 A.2d at 189 (holding selectmen lacked jurisdiction
to grant special exception because statute solely vested such authority in
board of adjustment); Town of Tuftonboro v. Lakeside Colony, Inc., 119 N.H.
445, 451-52, 403 A.2d 410, 414 (1979) (piercing device created to circumvent
regulations and disregarding party's label of property interest). Unlike the
cases relied upon by the plaintiffs, this case does not involve a town vote
that directly contradicts an administrative agency's prior decision. Here, the
planning board rejected Highfields' proposal to relocate Baird Hill Road while
it was designated a scenic road. The voters did not, however, vote to overturn
the planning board's refusal to relocate "scenic" Baird Hill Road.
Instead, the voters decided to remove the road's designation as scenic and then
take the action set forth in Article 42. The decisions made by the planning
board and the voters were not the same. We recognize that we appear to be
engaging in semantics and that even if the decisions are not the same, the
result of each decision is essentially identical. We hold, however, that the
planning board's refusal to relocate the scenic road was not circumvented. To
hold otherwise would obviate the voters' exclusive, statutorily granted power
to designate and undesignate a road as scenic, see RSA 231:157, and
impermissibly render the statute meaningless, see Appeal of Soucy, 139 N.H.
110, 116, 649 A.2d 60, 63 (1994). Moreover, to the extent that the planning
board was not authorized to act in the first instance, the voters' subsequent
decision could not have amounted to a circumvention of the planning board's
decision. We need not decide whether Highfields'
request to the planning board to relocate the road equated to a request for a
discontinuance, requiring town vote. See Marrone v. Town of Hampton, 123 N.H.
729, 734, 466 A.2d 907, 910 (1993) (holding "the discontinuance of an
established town highway . . . may be accomplished only by [town] vote").
Because this issue is dispositive, we need not address the defendants'
remaining arguments. See Dime Savings Bank of New York v. Town of Pembroke, 142
N.H. 235, 238, 698 A.2d 539, 541 (1997). II.
The Town's Approval of Article 42 The plaintiffs contend on cross-appeal
that the town acted unlawfully when it: (1) removed the scenic road
designation; (2) relocated the road; (3) discontinued and accepted the old and
new portions respectively; and (4) redesignated the new portion as a scenic
road. In urging us to uphold the trial court's ruling, the defendants contend
that Article 42 was a proper exercise of the town meeting's authority. Article
42 called for the removal of the scenic road designation of a portion of Baird
Hill Road and the prospective redesignation of the newly constructed portion. As the final arbiter of the meaning of
a statute, Pope, 137 N.H. at 237, 624 A.2d at 1362, we interpret the words
contained in a statute according to their plain meaning, New London Land Use
Assoc., 130 N.H. at 514, 543 A.2d at 1386. The plain meaning of RSA 231:157
authorizes the removal of the scenic road designation of part of Baird Hill Road: The
voters at a regular town meeting may rescind . . . their designation of a
scenic road . . . . Article 42 also called for the
prospective redesignation of a portion of Baird Hill Road. Authority for such
action is found at RSA 231:157: [T]he
voters of [a] town at any annual or special meeting may designate such road as
a scenic road. The plaintiffs contend that the trial
court erred in ruling that Article 42 provides for the discontinuance of the
old portion of Baird Hill Road and the acceptance of the new portion. We first
address the plaintiffs' contention that Article 42 lacks both a vote of
discontinuance and acceptance, and that such votes were necessary in order to
relocate the road. Assuming without deciding that such votes were necessary to
accomplish the relocation in this case, we uphold the trial court's finding
that Article 42 expresses an intent to discontinue a portion of Baird Hill Road
and accept the new portion. The authorization of the concurrent
conveyance to Highfields of the old roadway easement constitutes a
discontinuance of a highway. The discontinuance of the road is authorized by
RSA 231:43, I (1995), which provides: Any
class IV, V or VI highway, or any portion thereof, in a town may be
discontinued by vote of a town . . . . As stated above, we do not decide in
this case whether Highfields' request to the planning board to relocate part of
Baird Hill Road equated to a request for a discontinuance of part of the road.
Leaving that question undecided does not preclude our finding that Article 42
involved the discontinuance of part of the road. Because the discontinuance of
a highway can only be accomplished by town vote, see Marrone, 123 N.H. at 734,
466 A.2d at 910, we hold that the town did not act unlawfully when it voted to
discontinue the old portion of Baird Hill Road. The plaintiffs next contend that
Article 42 lacks a vote of acceptance of the relocated road and merely
constitutes an exchange of deeds. We disagree. Article 42 authorized the
construction of a highway on an easement to be conveyed to the town by
Highfields. Article 42 provides that the new portion of the road will be
located on Highfields' property and constructed to the full satisfaction of the
selectmen. Authority for such action is found at RSA 229:1 (1993), which
provides: Highways
[include] roads which have been constructed for public travel over land which
has been conveyed to a city or town or to the state by deed of a fee or
easement interest, or roads which have been dedicated to the public use and accepted
by the city or town in which such roads are located . . . . Acceptance of a road is a discrete,
legal act that can be accomplished via town vote. See Polizzo v. Town of
Hampton, 126 N.H. 398, 401, 403, 494 A.2d 254, 256, 257 (1985). "[R]oads
must be approved by the town, not the planning board." Beck, 121 N.H. at
999, 437 A.2d at 291 (citations omitted). Moreover, the fact that the designation
of the scenic road is "prospective" does not render Article 42
invalid. Cf. New London v. Davis, 73 N.H. 72, 75-76, 59 A. 369, 371-72 (1904)
(fact that discontinuance of highway would not take effect until substitute
completed does not render vote invalid). This is not a situation where the
voters' statutory authority was impermissibly delegated to the selectmen. Cf.
Levasseur, 116 N.H. at 342, 358 A.2d at 666. We agree with the trial court that
Article 42, when liberally construed, expresses an intent to discontinue a
portion of Baird Hill Road and then to accept a new portion. The portion to be
discontinued is sufficiently defined in Article 42 for voters to make a
rational decision. "The passage of the vote implies
that all further steps were to be taken that were necessary to render the
action of the town effective . . . ." New London, 73 N.H. at 80, 59 A. at
373. "It is a principle of general application that votes passed at
town-meetings should be liberally construed." Id. at 76, 59 A. at 372.
Town meetings do not consistently express their purposes with legal precision.
McMahon v. Salem, 104 N.H. 219, 220, 182 A.2d 463, 464 (1962). Furthermore, the
party challenging an article bears the burden of establishing that in all
likelihood, defects in the article affected the outcome of the vote. See Keene
v. Gerry's Cash Mkt., Inc., 113 N.H. 165, 167, 304 A.2d 873, 875 (1973). Under
the facts of this case, we do not conclude that the imprecise language affected
the outcome of the vote. See Town of Freedom, 120 N.H. at 580, 419 A.2d at
1092; New London, 73 N.H. at 76, 59 A. at 373. III.
The Indemnity Agreement The plaintiffs further contend on
cross-appeal that relocation of the road was accomplished by means of an
unlawful agreement "by which the town and the selectmen traded benefits to
the town in exchange for administrative waivers." The indemnity agreement
provided that Highfields agreed "to indemnify and hold harmless the Town
of Conway from any and all liability, claim, loss or damage the Town may suffer
or defend as a result of any claims, demands, costs, or judgment against the
Town arising from [the] [a]greement or any construction or use of said roads
during construction of the relocations or by the abutters to the Highfields
Farm property." The trial court upheld the agreement on the ground that
there was no
evidence which clearly shows that the selectmen were improperly induced by the
Indemnity Agreement to relocate Baird Hill Road. To the contrary, the evidence
shows that the selectmen carefully analyzed many different plans for the
relocation over many months before making a decision. Accordingly, the court
finds that neither Article 42 nor the selectmen's implementation of it are
invalid due to improper inducement. The plaintiffs argue that the trial
court erred in finding that no evidence existed to clearly show that the
selectmen were improperly induced by the agreement. We disagree. The selectmen have a duty to act for
the public good in approving the layout of roads. See Knowles' Petition, 22
N.H. 361, 363 (1851). We will not uphold an "agreement to indemnify the
town [if it is] clearly covinous and collusive." Id. However, "[t]he
mere fact that someone is willing to pay the expense of building a highway does
not prove that the public good does not require it; and the subsequent laying
out of the way by the selectmen upon a petition to them must be presumed, in
the absence of evidence to the contrary, to have been regular, involving
necessarily a determination of the question of the public good." New
London, 73 N.H. at 78, 59 A. at 372. "Every presumption . . . is to be
assumed that [the selectmen] in good faith adjudged the road to be necessary,
until the contrary is clearly shown." Proctor v. Andover, 42 N.H. 348, 357
(1861) (emphasis added). Applying that standard, we cannot say the trial court
erred in its determination that no improper inducement occurred. Moreover, the selectmen were acting
pursuant to a directive of the town meeting. The selectmen were implementing
and complying with a decision lawfully made by the voters through the
democratic process, and nothing in their actions has been shown to be unlawful
or improper. See Lamb v. Danville School Board, 102 N.H. 569, 571-72, 162 A.2d
614, 616 (1960); cf. Knowles' Petition, 22 N.H. at 363-64 (selectmen not acting
pursuant to voters' wishes). "In New England town meetings the voters are
the sovereigns, and their will, when duly expressed, is supreme."
Attorney-General v. Folsom, 69 N.H. 556, 557, 45 A. 410, 410 (1899). We
therefore affirm the trial court's finding that neither Article 42 nor the
selectmen's implementation of it are invalid due to improper inducement. Reversed in part; affirmed in part. All concurred.
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