2004-802, TOWN OF HINSDALE v. TOWN OF CHESTERFIELD

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THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
Cheshire
No. 2004-802
TOWN OF HINSDALE
v.
TOWN OF CHESTERFIELD
Argued: October 20, 2005
Opinion Issued: December 29, 2005
Bragdon & Berkson, P.C., of Keene (H. Neil Berkson and Susan R.
Lachman on the brief, and Mr. Berkson orally), for the plaintiff.
Tower, Crocker & Mullins, P.A., of Jaffrey (Thomas P. Mullins on the brief
and orally), for the defendant.
GALWAY, J. The defendant, Town of Chesterfield (Chesterfield), appeals
the decision of the Superior Court (Sullivan, J.) reversing a Chesterfield town
meeting vote to discontinue a portion of a class V highway under RSA 231:45-
a, I (1993). We affirm.
On appeal, the defendant argues that: (1) the trial court applied an
incorrect legal standard; and (2) the facts do not support the court’s
determination.
The trial court found the following facts. North Hinsdale Road is a class
V highway that is not maintained in the winter and runs through Chesterfield

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into Hinsdale, where it becomes Plain Road Extension, and then Plain Road.
These three roads provide a means of traveling north-south between Route 63
in Chesterfield and Route 119 in Hinsdale. Plain Road runs through a thickly
settled part of Hinsdale, which has contributed to increased traffic on North
Hinsdale Road in recent years.
On March 11, 2003, the Chesterfield Town Meeting voted to discontinue,
subject to gates and bars, a quarter-mile section of North Hinsdale Road,
beginning at the Hinsdale border and continuing northerly for a quarter of a
mile into Chesterfield. Closing this part of the road blocked residents living on
Plain Road in Hinsdale from using North Hinsdale Road to reach Route 63 in
Chesterfield. After the town vote, the Chesterfield Selectmen installed locked
gates that blocked North Hinsdale Road at the Hinsdale border. Chesterfield
was careful not to cut off its own residents from using North Hinsdale Road.
After the discontinuance, Hinsdale residents living on or near Plain Road could
still reach Route 63, but had to travel as much as ten miles farther than before
the discontinuance.
The trial court found that keeping North Hinsdale Road open was
important not only for public convenience, but also for public safety.
Discontinuing the road eliminated the only reasonable route for Hinsdale
residents living on Plain Road to flee from a nuclear accident at the Vermont
Yankee Power Plant. Discontinuance of North Hinsdale Road also cut off a
route that police used for backing up other police officers, and the cost to
Chesterfield of maintaining the quarter-mile section of North Hinsdale Road
was minimal.
I
We first consider Chesterfield’s argument that the trial court applied an
incorrect legal standard. Chesterfield asserts that we should apply the
standard articulated in Eastborough Corp. v. City of Eastborough, 441 P.2d
891 (Kan. 1968), which states that the town vote should be affirmed absent
compelling evidence that the town acted unreasonably.
As the trial court’s decision to apply a particular legal standard is a
question of law, we review the decision de novo. HippoPress v. SMG, 150 N.H.
304, 308 (2003). We begin our analysis with a review of the statute that both
parties agree applies. Entitled “Appeal from Discontinuance; Damages,” RSA
231:48 (1993) states:
Any person or other town aggrieved by the vote of a town to
discontinue any highway, or discontinue any highway as an open
highway and made subject to gates and bars, may appeal
therefrom to the superior court for the county in which such

3
highway is situate by petition . . . . [L]ike proceedings shall be had
on such petition as in the case of appeals in the laying out of class
IV, V, and VI highways . . . .
(Emphasis added.)
We apply the following standard of review for statutory interpretation:
The interpretation of a statute is a question of law, which we
review de novo. We are the final arbiters of the legislature's intent
as expressed in the words of the statute considered as a whole. We
first examine the language of the statute, and, where possible,
ascribe the plain and ordinary meanings to the words used. When
a statute's language is plain and unambiguous, we need not look
beyond it for further indication of legislative intent, and we will not
consider what the legislature might have said or add language that
the legislature did not see fit to include.
Woodview Dev. Corp. v. Town of Pelham, 152 N.H. 114, 116 (2005) (citations
omitted).
RSA 231:48 expressly applies to appeals from town votes to discontinue
a class V highway, and therefore applies to the instant appeal. In stating that
“like proceedings shall be had on such petition as in the case of appeals in the
laying out of class IV, V, and VI highways,” the statute plainly requires that
appeals of the discontinuance of any highway should proceed similarly to
appeals of the laying out of such a highway.
We have previously determined that the laying out of a class IV, V, or VI
highway receives de novo review on appeal to superior court. Rodgers Dev. Co.
v. Town of Tilton, 147 N.H. 57, 61 (2001); V.S.H. Realty, Inc. v. City of
Manchester, 123 N.H. 505, 507-08 (1983). De novo review means that the
reviewing court decides the matter anew, neither restricted by nor deferring to
decisions made below. In re Juvenile 2002-511-A, 149 N.H. 592, 594 (2003);
see also Salve Regina College v. Russel, 499 U.S. 225, 238 (1991) (stating that
when de novo review is compelled, no form of appellate deference is
acceptable). In providing that an appeal of the discontinuance of a highway
entails “like proceedings” to an appeal of the layout of a highway, RSA 231:48
requires that trial courts apply de novo review to a town’s vote in appeals of
discontinuances. Chesterfield agrees with this interpretation, but argues that
the statute does not address what legal standard should apply.
Although RSA 231:48 provides for like proceedings, the statute does not
set forth the substantive legal standard to apply in discontinuance appeals.
We are therefore left with little statutory guidance from the legislature as to

4
what legal standard to apply. “If a statute is ambiguous . . . we consider
legislative history to aid our analysis. Our goal is to apply statutes in light of
the legislature's intent in enacting them, and in light of the policy sought to be
advanced by the entire statutory scheme.” Hughes v. New Hampshire Div. of
Aeronautics, 152 N.H. 30, 38-39 (2005).
Our review of the legislative history of RSA 231:48 uncovered nothing
that assists us in determining the intended legal standard. Nor have we found
case law that would settle this issue. Accordingly, we will determine the
appropriate legal standard by considering the policy sought to be advanced by
the statutory scheme. See id; cf. 16 P. Loughlin, New Hampshire Practice,
Municipal Law and Taxation § 54.04, at 583 (1993) (concluding that, because
New Hampshire statutes do not expressly set forth the conditions necessary for
a discontinuance, those conditions must be read into the statutes).
We first note that the legislature has manifested an intent to protect the
interests of adjoining towns. RSA 231:48 provides that one town may appeal
another’s vote to discontinue a highway. RSA 231:44 (1993) provides that
when one town discontinues a highway that connects to a highway in an
adjoining town, the adjoining town must receive notice of the discontinuance.
We therefore conclude that the legal standard in this case must consider the
interest that an aggrieved town has in continued use of the highway. As for the
appellee town, which voted to discontinue the highway, we have previously
stated that the burden of maintaining a highway is a significant consideration
for a town in deciding whether or not to discontinue the highway. New London
v. Davis, 73 N.H. 72, 74 (1904); see also Loughlin, supra § 54.04, at 583.
Accordingly, the legal standard in this case must also consider the burden that
the appellee town would bear in continuing the road. Considering the
aforementioned factors, we conclude that the substantive legal standard in this
case balances the aggrieved town’s interest in the road’s continuance against
the burden that maintenance of the road would impose on the town that voted
to discontinue the road, with the burden of proof resting on the aggrieved town.
This standard is analogous to part of the legal standard for determining
whether an occasion exists for the layout of a road. See Rodgers Dev. Co., 147
N.H. at 60 (balancing “the public interest in the layout against the burden it
imposes upon the town”). To the extent that the legislature intended for layout
and discontinuance appeals to have similar legal standards, our holding here is
consistent with that intent. If our holding should be contrary to the
legislature’s intent, however, the legislature is free to adopt a different standard
by amending the statute.

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II
We next consider whether the facts support the trial court’s decision to
reverse Chesterfield’s town vote to discontinue North Hinsdale Road. To do so,
we must determine the standard by which we review the trial court’s decision.
We turn again to the “like proceedings” language of RSA 231:48. A plain
reading of this language directs us to apply the same procedural standards to a
discontinuance appeal as a layout appeal. Standards of review are procedural
in nature. Alison H. v. Byard, 163 F.3d 2, 4 (1st Cir. 1998). We therefore find
it clear that our standard in reviewing a trial court’s decision in a
discontinuance appeal should be the same as our standard in reviewing a trial
court’s decision in a layout appeal. 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.
Accordingly, we conclude that “some evidence” is the appropriate standard by
which to review the trial court’s de novo determination.
The trial court assessed Hinsdale’s interest in continuing North Hinsdale
Road by finding: (1) the discontinuance cut off the only reasonable escape
route for some Hinsdale residents from such potential disasters as an accident
at the Vermont Yankee Nuclear Power Plant or flooding from the Connecticut
River; (2) North Hinsdale Road received substantial use by residents of
Hinsdale, and that use was increasing at the time of Chesterfield’s town vote;
(3) North Hinsdale Road allowed more than 300 Hinsdale residents to reach
Route 63 by traveling as much as ten miles less than without North Hinsdale
Road; and (4) North Hinsdale Road allowed the police departments of both
Chesterfield and Hinsdale to provide better backup, particularly in emergency
situations, by reducing their response time as much as twenty to thirty
minutes. In weighing the burden on Chesterfield to maintain North Hinsdale
Road, the trial court found: (1) a Chesterfield road agent specifically stated
that the cost of maintaining North Hinsdale Road was minimal; and (2) “the
deliberate purpose of closing the quarter of a mile section of the road was to
create a barricade or plug or roadblock to the traffic coming from or to
Hinsdale,” because “some Chesterfield residents reside close to North Hinsdale
Road and are bothered by the traffic.” The trial court determined that the
interest of Hinsdale’s residents in continuing North Hinsdale Road outweighed
the burden that continuing the road imposed on Chesterfield. We conclude
that the trial court applied the proper balancing test and that there was
substantially more than some evidence to support the trial court’s decision.
Affirmed.
BRODERICK, C.J., and NADEAU, DALIANIS and DUGGAN, JJ.,
concurred.