Taylor Community v. City of Laconia

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 Reporter, Supreme Court of New
Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any
editorial errors in order that corrections may be made before the opinion goes
to press. Errors may be reported by email at the following address:
reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00
a.m. on the morning of their release. The direct address of the court’s home
page is: https://www.courts.nh.gov/our-courts/supreme-court

THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Belknap
Case No. 2024-0393
Citation: Taylor Community v. City of Laconia, 2025 N.H. 38

TAYLOR COMMUNITY

v.

CITY OF LACONIA & a.

Argued: May 20, 2025
Opinion Issued: August 27, 2025

Sheehan Phinney Bass & Green PA, of Manchester (Megan C. Carrier and
Christopher Cole on the brief, and Megan C. Carrier orally), for the plaintiff.

Mitchell Municipal Group, P.A., of Laconia (Laura Spector-Morgan on the
brief and orally), for the defendants.

Matthew J. Lahey, of Laconia, self-represented party, and Stephan T.
Nix, of Gilford, for intervenor Nancy Ettelson, on the intervenors’ memorandum
of law.
 MACDONALD, C.J.

¶1 The plaintiff, Taylor Community, appeals an order of the Superior
Court (Attorri, J.) denying its cross-motion for summary judgment and granting
the cross-motion for summary judgment filed by the intervenors, Matthew J.
Lahey and Nancy Ettelson. On appeal, the plaintiff argues that the trial court
erred in concluding that there was occasion for the defendants, the City of
Laconia (City) and its Mayor and City Council, to lay out the disputed cul-de-
sac as a public highway. We affirm.

I. Background

¶2 The record reflects the following facts, or they are otherwise
undisputed. In the late 1980s, the plaintiff constructed a cul-de-sac in
Laconia. The plaintiff made representations to the Laconia Planning Board on
a 1987 subdivision plan that the cul-de-sac would be built and deeded to the
City. The plaintiff conveyed lots to third parties based on that plan. However,
although the cul-de-sac was built, it was never deeded to the City. The City
maintained the cul-de-sac until 2019, and members of the public and various
public services use the cul-de-sac to the present day.

¶3 In 2019, the plaintiff applied to the planning board to remove the
cul-de-sac and install a hammerhead, which is a T-shaped road at the end of a
dead-end street to allow vehicles to turn around. The planning board denied
the request. The plaintiff appealed that decision to the superior court, and the
court determined, in part, that the cul-de-sac had never been accepted by the
City and had remained a private road owned by the plaintiff.

¶4 Thereafter, the intervenors and others submitted a petition to lay out
the cul-de-sac as a public highway. See RSA 231:8 (2009) (providing that town
selectmen may, upon petition, lay out public highways when there is “occasion”
to do so). The Laconia City Council voted to lay out the cul-de-sac as a public
highway. The plaintiff appealed the decision to the superior court. See RSA
231:34 (2009) (providing that aggrieved parties may appeal lay out decisions to
the superior court). The parties filed cross-motions for summary judgment on
whether there was occasion to lay out a public highway.

¶5 The superior court granted the intervenors’ motion and denied the
plaintiff’s motion. In ruling that there was “occasion” to lay out a public
highway, see RSA 231:8, the superior court concluded that the plaintiff had
dedicated the cul-de-sac to the City for public use in 1987 by drawing the cul-
de-sac on a plan of lands and selling lots in accordance with that plan, and
that the dedication had never been released. See RSA 231:51 (2009) (providing
that a street may be dedicated to public use by being drawn upon a plan of
lands platted by the owner, and selling lots in accordance with that plan). The
superior court concluded that — under the first prong of the occasion analysis

2
— the dedication left the plaintiff with “no rights” in the cul-de-sac, and
therefore ruled that the public interest in laying out the highway outweighed
the plaintiff’s private interest in the cul-de-sac.

¶6 The plaintiff moved for reconsideration. Upon reconsideration, the
trial court clarified that, while the plaintiff retained a fee interest in the cul-de-
sac, the plaintiff did not retain the right “to use the dedicated property for its
own purposes.” The trial court also concluded that — under the second prong
of the occasion analysis — the public interest in laying out a highway
outweighed the burden on the City. This appeal followed.

II. Analysis

¶7 A moving party is entitled to summary judgment “if the pleadings,
depositions, answers to interrogatories, and admissions on file, together with
the affidavits filed, show that there is no genuine issue as to any material fact
and that the moving party is entitled to judgment as a matter of law.” RSA
491:8-a, III (2010). When reviewing rulings on cross-motions for summary
judgment, we consider the evidence in the light most favorable to each party in
its capacity as the nonmoving party and, if no genuine issue of material fact
exists, we determine whether the moving party is entitled to judgment as a
matter of law. Tremblay v. Bald, 176 N.H. 439, 442 (2024), 2024 N.H. 6, ¶8.
We review the trial court’s application of the law to the facts de novo. Id.

¶8 On appeal, the plaintiff argues that the trial court erred in
concluding that there was occasion to lay out the cul-de-sac as a public
highway. A public highway may be created: (1) through the taking of land by
eminent domain and the laying out of a highway by some governmental
authority; (2) through the construction of a road on public land; (3) through
twenty years of use by the public before 1968; or (4) by dedication and
acceptance. Hersh v. Plonski, 156 N.H. 511, 514-15 (2007); see RSA 229:1
(Supp. 2024).

¶9 Upon petition, a town will lay out roads when there is an “occasion”
to do so. RSA 231:8; Crowley v. Town of Loudon, 162 N.H. 768, 773 (2011).
Occasion for the layout of public roads exists if the public interest requires the
town’s acceptance of the roads. Crowley, 162 N.H. at 773. Assessing occasion
involves an equitable balancing of competing interests. Id. We have outlined a
two-step process for a trial court to undertake when assessing whether
occasion for laying out a road exists:

First, the court must 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, there is no
occasion for laying out the road. If, on the other hand, the public
interest justifies taking the land without the landowner’s consent,

3
 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. (citations, quotations, and ellipses omitted). The superior court conducts a
de novo analysis to make an independent determination of the occasion, or
appropriateness, of laying out a road as requested. See id.

A. Prong One

¶10 The plaintiff argues that the trial court erred in applying the first
prong of the occasion analysis. Specifically, the plaintiff asserts that the court
erred when it concluded that, because the plaintiff had dedicated the cul-de-
sac for public use, the plaintiff did not retain the right to use the property for
its own purposes. The parties do not dispute that the plaintiff has a right to
use the dedicated cul-de-sac, and we do not construe the trial court’s order as
ruling otherwise. We construe the trial court’s order — ruling that the plaintiff
lacks the right to use the dedicated property “for its own purposes” — as
concluding that the plaintiff’s right to use the property is limited by the public
right to accept and use the cul-de-sac because it is subject to an unreleased
offer of dedication. The trial court’s conclusion was not erroneous.

¶11 As noted above, dedication and acceptance is another method,
separate from laying out a public highway, by which a public highway can be
created. See Hersh, 156 N.H. at 514-15. Dedication is the devotion of land to
a public use by an unequivocal act of the owner of the fee manifesting an
intention that it shall be accepted and used presently or in the future for such
public use. Id. at 515. A public highway is created once a dedicated road is
accepted by the public. See id. at 515-16. In this case, the trial court ruled
that the cul-de-sac was dedicated but not accepted. The parties do not dispute
this ruling on appeal. A public highway was therefore not created through
dedication and acceptance. See id. However, the trial court nonetheless
concluded that the unreleased offer of dedication left the plaintiff with
diminished rights in the cul-de-sac, which caused it to fail prong one of the
occasion analysis. Thus, we address what impact a dedication has on a private
landowner’s property interest.

¶12 We find Harrington v. Manchester instructive in answering this
question. In Harrington, we considered whether the appellants were entitled to
damages after their dedicated road was laid out as a public highway.
Harrington v. Manchester, 76 N.H. 347, 348-51 (1912). We concluded that,
because the appellants had dedicated the road to public use, they were not
entitled to damages when public authorities subsequently laid out the road.
See id. In reaching that conclusion, we determined that the public had a
permanently vested right to accept the dedicated road and that a public “right

4
of passage” over the street, or “easement,” vested over the road at the moment
of dedication. See id.; see also Polizzo v. Town of Hampton, 126 N.H. 398, 402
(1985) (describing Harrington as holding “that an offer of dedication created a
permanently vested right in the town to accept the street”).

¶13 After Harrington, the legislature limited by statute the public’s
permanent right to accept a dedicated road. See RSA 231:51-:52 (2009).
Under certain circumstances, a landowner may now petition for release of a
dedication pursuant to RSA 231:52 or a dedication may be released by vote of
the governing body of a city or town pursuant to RSA 231:51. Nonetheless, an
offer of dedication remains open until it has been accepted, thereby creating a
public highway, or released. See Hersh, 156 N.H. at 514-16; Polizzo, 126 N.H.
at 401-02. In this case, there was no release of the plaintiff’s offer of
dedication. Accordingly, there currently is a public easement for travel over the
cul-de-sac and the public has a vested right to accept the cul-de-sac without
cost at any time. See Harrington, 76 N.H. at 348-51; Polizzo, 126 N.H. at 401-
02.

¶14 A public easement for travel grants the public the right to use the
land as a way, or for any use reasonably incidental to the purpose of traveling.
See Hartford v. Gilmanton, 101 N.H. 424, 426 (1958). When land is subject to
a public easement for travel, a private landowner may retain a fee interest in
the land, but that landowner may not use that land in any way that would
interfere with the public interest. See id. (explaining that a public easement or
“right to use [the land] as a public way” over private land means that “[t]he soil
and freehold belong to the land-owner, subject only to the public easement for
travel, and [the landowner] may use the land in any manner not inconsistent
with the public convenience”). Accordingly, while the offer of dedication
remains open, the plaintiff retains ownership of the fee and the ability to
petition for release of the dedication, but lacks the ability to use the property in
any way that would interfere with the public right to accept the dedicated cul-
de-sac and use it for travel.

¶15 Applying the prong one analysis, the trial court balanced the public
interest in the cul-de-sac against the plaintiff’s private interest in it. The trial
court noted, and the record establishes, that the public has a demonstrated
interest in using the cul-de-sac for travel and to accommodate public services.
As for the plaintiff’s private interest, the court correctly concluded that the
plaintiff lost the right to use the dedicated property for its exclusive purposes.
The court concluded that the plaintiff’s private interest in the cul-de-sac was so
encumbered by its dedicated state that “even a scant public interest”
outweighed it. We conclude that the trial court’s ruling was compelled by the
evidence and not legally erroneous.

¶16 Finally, we address the plaintiff’s policy argument. The plaintiff
argues that our conclusion regarding the scope of a private landowner’s rights

5
in dedicated but unaccepted land cannot be correct because, if a public
easement vests at the time of dedication, then landowners would be
disincentivized from dedicating land and municipalities from accepting it
because a municipality would immediately reap the benefit of a dedicated
highway without any liability that comes with acceptance. The statutory
scheme addresses the plaintiff’s concern.

¶17 As explained above, a landowner who has dedicated a road for
public use may petition for release of that dedication pursuant to RSA 231:52
whenever “such way will not be needed for the accommodation of public travel.”
“All proceedings shall be conducted in the manner provided for the laying out
of highways, and any interested party may appeal to the superior court from
the decision, as in the case of petitions for laying out highways.” RSA 231:52;
see also RSA 231:51 (providing that the governing body of a city or town may
release dedicated land by vote if it has not been opened, built, or used for
public travel within 20 years). Alternatively, should it be determined that the
road is “needed for the accommodation of public travel,” RSA 231:52, then the
landowner could petition to lay out a highway pursuant to RSA 231:8 if there is
“occasion” to do so. In determining whether there is “occasion” to lay out a
highway, if the landowner is the petitioner and the road is “needed for the
accommodation of public travel,” RSA 231:52 (emphasis added), the landowner
would likely succeed under the “occasion” balancing test. Cf. Crowley, 162
N.H. at 773. Accordingly, the plaintiff’s policy arguments do not undermine
our reasoning because the statutory scheme provides landowners with
methods to seek release of or compel acceptance of dedicated land, and for
judicial review of decisions in that regard. See RSA 231:8, :52. Of course, if
the legislature disagrees with our holding, it is free to amend the law as it sees
fit within constitutional bounds. See Attorney General v. Hood, 177 N.H. 176,
188 (2025), 2025 N.H. 3, ¶31 (per curiam).

B. Prong Two

¶18 The plaintiff next argues that the trial court erred in applying the
second prong of the “occasion” test. This prong requires balancing the public
interest in the layout against the burden it imposes upon the City. See
Crowley, 162 N.H. at 773. The plaintiff argues that the trial court drew
improper inferences and relied on facts not supported by the record.
Specifically, the plaintiff argues that the following determinations by the trial
court were erroneous: (1) “[l]aying out the cul de sac will cause the City to incur
only minimal additional yearly costs for maintaining the road, as evidenced by
the City’s maintenance of the cul de sac between 1987 and 2021”; and (2) “the
City’s interest in the cul-de-sac is clear in that it affords the most safe and
efficient traffic route for City vehicles providing emergency and other public
services to the approximately 30 residents on Cottonwood Avenue.”

6
 [¶19] Regarding the first point, the plaintiff argues that the trial court’s
determination was error because the City ceased maintaining the cul-de-sac in
2019, not 2021, and because there was no evidence in the record regarding the
actual yearly cost of maintaining the cul-de-sac. First, we decline to conclude
that the trial court’s misstatement that the City maintained the cul-de-sac for
34 years instead of 32 years constitutes reversible error. Second, the principal
point the trial court was required to consider was the burden on the
municipality in accepting the cul-de-sac, not the exact cost. See id. at 773-74.
The record establishes that the cul-de-sac is approximately 0.42 acres, situated
at the end of a public road which the City maintains, and that the City
previously maintained the cul-de-sac for 32 years. These facts demonstrate
that the additional cost for the City to maintain the cul-de-sac is minimal, and
the plaintiff cites nothing showing otherwise.

¶20 Regarding the second point, the plaintiff argues that the trial court
erred when it concluded that the cul-de-sac provides the most safe and efficient
traffic route for public vehicles, and asserts that the proposed hammerhead
could serve the same purposes. What is at issue in this case is not the relative
safety and efficiency of a hammerhead versus a cul-de-sac. For the purposes
of the second prong, the trial court had to determine whether the public has an
interest in the cul-de-sac that outweighs the burden on the municipality in
accepting it. See id. The trial court ruled that the cul-de-sac provides a safe
and efficient traffic route for emergency and public services which serve the
approximately 30 residents of Cottonwood Avenue, and the record confirms
that conclusion. Accordingly, the trial court correctly concluded that the
public interest in the cul-de-sac outweighs the municipality’s burden in
accepting it. See id.

¶21 The plaintiff also argues that the trial court erred by not applying
the factors that we have created to assist courts in weighing the public interest
in the layout against the private landowner’s and municipality’s interests. We
have enumerated certain factors that “the trial court may consider” in applying
the occasion balancing test, but the ultimate question before the trial court is
whether the public interest in the layout outweighs the interests of the affected
landowner and the burden on the municipality. See id. (emphasis added). The
trial court correctly concluded that the public interest in the layout outweighed
those competing interests.

¶22 Accordingly, we conclude that the trial court did not err. We have
considered the plaintiff’s remaining arguments and conclude that they do not
warrant further discussion. See Vogel v. Vogel, 137 N.H. 321, 322 (1993); Sup.
Ct. R. 25(8).

Affirmed.

DONOVAN and COUNTWAY, JJ., concurred.

7