The plaintiff, Green Crow Corporation, submitted a petition pursuant to RSA 231:28 to the town’s board of selectmen to conditionally lay out and reclassify a Class VI highway to a Class V highway, at its own expense, conditioned upon obtaining approval from the planning board for a three-phase cluster subdivision to be located off the improved road. The development proposed 130 new homes. The selectmen denied the petition for layout finding that the plaintiff failed to establish “occasion” for the requested highway upgrade and reclassification. The plaintiff appealed, arguing that the occasion requirement under RSA 231:8 did not apply to its petition and, even if it did, the selectmen were not permitted to consider anticipated impacts associated with potential development that could result from the upgraded and reclassified highway. The Superior Court transferred these two questions of law to the Supreme Court by way of an interlocutory appeal.
Question one: Does RSA 231:28 require a petitioner requesting permission from the selectmen to upgrade and reclassify an existing Class VI road to Class V standards to show occasion exists for the layout?
The Court answered “yes,” the petitioner is required to show occasion exists for the layout. The plaintiff argued that the conditional layout provision, RSA 231:28, grants specific and detailed authority to the board of selectmen and does not incorporate the occasion requirement under RSA 231:8. This position was not adopted by the Court. Instead, the Court agreed with the town that the plain language of RSA 231:28, as well as the structure of RSA chapter 231 as a whole, evinces a legislative intent to incorporate the occasion requirement of RSA 231:8 into the conditional layout provision of RSA 231:28.
Turning to the second question posed: If the Court finds that the occasion analysis applies to the upgrade and reclassification under RSA 231:28, may the selectmen consider as part of the occasion analysis the anticipated impact associated with the development that may result from the upgrade of the Class VI road to Class V status?
The Court answered “no,” the selectmen may not consider the anticipated impact associated with the development that may result from the upgrade of the road as part of the occasion analysis.
Although “occasion” is not defined under RSA chapter 231, the Court has outlined a two-step process for assessing occasion: “The first step is to balance the public interest in the layout against the rights of the affected landowner. If the rights of the affected landowner outweigh the public interest in the layout, the layout is not justified and there is no occasion for it. If, however, the public interest justifies the taking of the land without the landowner’s consent, the second step is to balance the public interest in the layout against the burden it imposes upon the town. If the balancing required by the second step favors the public interest, occasion for layout exists.”
Prior cases considering the “public interest” have identified factors including: integration with existing road system; ease of existing traffic flow; anticipated frequency of road use; improved accessibility for fire, emergency and police services; and “benefit to significant portion versus small fraction of town tax base or year-round residents,” among others. With respect to the “town burden,” prior cases have focused almost exclusively on anticipated construction and ongoing maintenance costs pertaining to the road itself. Because, in those cases, development of the abutting land had already occurred, increased costs associated with school, fire, police and emergency systems were not a factor. Here, the petition to upgrade the road was submitted before any new homes were constructed. The town argued that the “town burden” should include consideration of the impacts of potential future development. The plaintiff argued that to do so would improperly allow the board of selectmen to act in the capacity of the planning board.
The Court reviewed planning and zoning statutes, RSA chapters 672 through 677, which provide a variety of planning mechanisms, including controlling growth and managing the impact upon infrastructure. The Court reviewed the differing statutory planning and zoning roles and responsibilities of the legislative body (town meeting), the governing body (board of selectmen) and the land use boards (planning board, zoning board and other bodies), observing that “a significant portion of the responsibility and tasks of careful and wise land use planning falls to the planning board.”
The Court concluded that the legislature did not intend for a board of selectmen to use its authority to determine occasion for the layout or upgrade of a highway under RSA 231:8 as a vehicle for effectively conducting land use planning or zoning. Thus, the selectmen may not undertake an analysis that includes consideration of the impact associated with the potential future development on the road under consideration for layout.
The holding announced in this case makes maintenance costs the chief “burden” to be balanced against the “public interest” in a highway layout case, at least where the developer will pay for construction costs. This presents a challenge for boards of selectmen who feel strongly that their highway budgets are already stretched to the breaking point.