Public Way Discontinuance

Jonathan P Killeen
Shareholder at Boyle, Shaughnessy Law PC in Manchester, NH

No. 2019-0302
August 25, 2020

  • Whether trial court applied the incorrect legal standard to evaluate a town’s decision to discontinue a public road and whether trial court erroneously concluded that the interests in discontinuing the road outweighed the interests of plaintiff and public in the road’s continuance.

The plaintiff owns a hotel that abuts a retail village owned by the defendants. The hotel and retail village  are  encircled  by a road known as Common Court, half of which is privately owned and maintained by the defendants and the other half of which is public and owned by the Town of Conway. Common Court provides access to both the plaintiff and the defendants’ properties. The public had access to the hotel from a variety of ways, one of which included a public road that connected to McMillan Lane, which then connected to the public portion of Common Court. The defendants sought to expand their retail village on an undeveloped parcel of land, portions of which McMillan Lane ran through. As a result, the defendants sought to remove McMillan Lane and replace it with a new road that the defendants would build and maintain at their own expense and which would connect to the public sections of Common Court. In order to do so, the defendants submitted a subdivision application to the Town’s planning board. While the application remained pending, the Town held a vote and adopted a warrant article pertaining to the discontinuance of McMillan Lane and through which the defendants would take control of, maintain, and keep open to the public McMillan Lane.

The plaintiff appealed the Town’s decision to discontinue McMillan Lane to the superior court. The trial court applied a balancing test that considered the Town’s interests not only in reduced maintenance costs but also other Town interests. Following a bench trial, the trial court affirmed the Town’s decision because the benefits to the Town resulting from discontinuing McMillan Lane outweighed the plaintiff’s interests in its continuance. The trial court found, among other things, that through the discontinuance, the Town would save money in maintenance costs on an annual basis and it would allow for the development of land consistent with the Town’s plan. In particular, the Town would gain a new road, valued at approximately $1 million, at no cost to the public. The trial court rejected the plaintiff’s argument that it would cause harm to the plaintiff’s business interests because the plaintiff had to rely on the defendants, private entities, to maintain and provide public access to the new road, as it was too uncertain to out- weigh the Town’s interests in discontinuing the road.

On appeal to the Supreme Court, the plaintiff asserted that the trial court applied an incorrect balancing test to evaluate the Town’s  decision to discontinue the road and that the trial court erroneously concluded that the Town’s interest in dis- continuing the road outweighed the interests of the plaintiff and the public in the road’s continuance. The Supreme Court concluded that in assessing an appeal of  a public highway discontinuance brought by an abutting landowner, the trial court is not restricted to considering solely the Town’s interests in reduced maintenance costs. Rather, the trial court may consider other interests taken into consideration by a town because RSA 231:43, the statute authorizing a town to discontinue certain classes of roads, does not specifically re- quire that there be any particular grounds to justify discontinuance. Further, the Supreme Court rejected the plaintiff’s argument that under the balancing test employed by the trial court, its interests out- weighed the Town’s interests because the plaintiff would have no recourse against the defendants if they, or their successors, do not maintain or otherwise deny access to the road. In doing so, the Supreme Court noted that the plaintiff had current access to the road and the defendants would not cease maintaining the new road or close it to the public based on the defendants’ previous history of maintaining other private roads connecting to Common Court. The trial court’s factual findings also supported that the plaintiff could obtain an easement over the road. Lastly, the plaintiff failed to identify any evidence that the plaintiff would suffer harm as a result of the discontinuance because hotel guests could continue to access the hotel from at least two other ways.

Roy W. Tilsley and Christina A Ferrari, on the brief, and Mr. Tilsley orally, Bernstein, Shur, Sawyer, & Nelson, P.A., of Manchester, for the plaintiff. Peter J. Malila, Jr. on the brief and orally, Hastings Malia P.A., of Fryeburg, Maine, for defendant Town of Conway. Derek D. Lick, orally, Sulloway & Hollis, P.L.L.C., of Concord, for defendants 13 Green Street Properties, LLC, 1675 W.M.H., LLC, and Settlers’ R2, Inc., joined in the brief of Town of Conway.