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Reclassifying road maintenance responsibility. The Supreme Court of New Hampshire, in its ruling on the appeal of Town of Nelson vs. New Hampshire Department of Transportation, stated in part: "The plaintiff, the town of Nelson, appealed from a ruling by the Superior Court that the reclassification of two segments of Old Route 9 did not impose an unconstitutional, unfunded mandate on the town. The defendant, the New Hampshire Department of Transportation, cross-appealed, arguing that the trial court erred in ruling that the town's untimely appeal did not bar its challenge to the reclassification of Old Route 9.

"This dispute arose from the construction of a new bypass, which required the reclassification of certain segments of Old Route 9 in Nelson. Route 9 is the primary highway for access from Keene to Concord; it formerly ran along the shoreline of Granite Lake in the towns of Nelson and Stoddard. In the early 1990s, the state designed a bypass to Route 9, directing traffic away from Granite Lake.

"In 1992, the state held a public hearing on the construction of the new bypass to address the town's request that the state continue to maintain the reclassified portions of Route 9 after the bypass was constructed, and these portions were no longer part of Route 9. At the hearing, the chairman of the town's Board of Selectmen proposed that the state provide summer maintenance to the by-passed portions and that the town provide winter maintenance. The state and the town continued to negotiate after the hearing. The commissioner of the department of transportation issued a report of his findings, dated June 18, 1992, providing in part: '(Segment A) will be reclassified as a Class V highway, and as such, will be maintained by the town of Nelson. The state will repair or replace as needed all damaged guardrail, catch basins, culverts, etc., and repave with an asphalt overlay (this segment) prior to its turnover to the town of Nelson....It is also noted that the state will increase the Block Grant Aid money mad e available to Nelson in proportion to its increased Class V highway mileage.'

"By letter dated December 28, 1995, the state formally reclassified three segments of Old Route 9; segments A and C are in dispute.

"Segment A was reclassified from a class I state highway to a class V town highway. In its December letter, the state reiterated that it would increase the block grant aid money made available for this increased length of local roadway. Because segment A is now a town road, the town is now responsible for providing winter and summer maintenance.

"Segment C was reclassified from a class I state highway to a summer maintenance only class II highway. Under this classification, the town is only responsible for maintaining segment C in winter.

"At a March 1996 town meeting, the town presented warrant articles on whether to accept and maintain segments A and C of Old Route 9. The citizens voted 'no' on both articles. The town subsequently filed a petition for injunctive relief and declaratory judgment seeking a determination that the reclassification constituted an unfunded mandate in violation of Part I, Article 28-a of the New Hampshire Constitution, and an injunction preventing the reclassification. The state countered that the town violated RSA 541:3 (1997) by not challenging the reclassification within thirty days. The trial court ruled that the reclassification was not unconstitutional and declined to dismiss the declaratory judgment action as untimely. This appeal and cross-appeal followed.

"On appeal, the town contends: 1) that the state's action in reclassifying certain segments of the road was unconstitutional absent the appropriation of additional state funding sufficient to cover any increased maintenance costs incurred by the town; and 2) that RSA 228:27 and :36 are unconstitutional.

"We first address the state's contention that the trial court erred in declining to dismiss the town's petition as untimely. The state argues that the issuance of the commissioner s report and the reclassification letter represented agency actions subject to appeal pursuant to RSA chapter 541 and that the town failed to challenge the actions for over four years, well past the thirty-day rehearing requirement, and the thirty-day appeal period. Therefore, the state contends, the town should be barred from pursuing this challenge. The trial court found that the town did not 'appeal the administrative determination of the commissioner on the time basis required for such appeals,' apparently relying on RSA chapter 541. The trial court further stated that it was not persuaded that failure to appeal would necessarily bar consideration of a constitutional challenge.

"The state has failed to cite any statute or authority that makes this reclassification of segments A and C of Old Route 9 subject to RSA chapter 541. RSA 541:2 provides: 'When so authorized by law, any order or decision of the commission may be the subject of a motion for rehearing or of an appeal in the manner prescribed by the following sections.' We have stated that '[a]ppeals from administrative proceedings may be taken under RSA chapter 541 only when so authorized by law.'

"Even assuming that RSA chapter 541 applies and that the town's appeal is untimely, we are not persuaded that the town is barred from pursuing its constitutional challenge. By focusing on the town's untimely appeal of the reclassification, the state misconstrues the town's argument. The town never disputed the commissioner's authority to reclassify segments of a highway. Rather, the town contends that 'unless the state, in making its reclassification, authorizes full funding to the town, the state's actions constitute unfunded mandates in violation of our Constitution.' Accordingly, the town does not challenge the reclassification decision itself, but instead asserts that the state has failed to comply with Article 28-a.

"The town first argues that the trial court erred in ruling that the state did not create an unfunded mandate in violation of Article 28-a by reclassifying segments A and C without either fully funding maintenance or receiving approval from the town's voters.

"Article 28-a provides: 'The state shall not mandate or assign any new, expanded or modified programs or responsibilities to any political subdivision in such a way as to necessitate additional local expenditures by the political subdivision unless such programs or responsibilities are fully funded by the state or unless such programs or responsibilities are approved for funding by a vote of the local legislative body of the political subdivision.'

"Increased expenditures alone are not dispositive of whether a program or responsibility has been expanded. The reclassification of Old Route 9 does not violate Article 28-a because it is not a new or expanded responsibility or program.

"Two systems of highways have long existed in New Hampshire: those that are part of a statewide or regional transportation system maintained by the state, and those that are local in nature and maintained by the municipalities.

"Glass V highways fall into the latter category. Towns have historically been

responsible for the local roads within their boundaries. The segments at issue are local in nature and largely of local use. We have previously held that Article 28-a does not preclude municipalities from reassuming financial responsibility for services for which they had been liable prior to its adoption in 1984.

"While the town argues that the state's decision to reclassify these segments is controlled by our decision in Flynn, 133 N.H. at 17, we disagree. In Flynn, we held that a legislatively created presumption, which was enacted subsequent to the adoption of Article 28-a, was unconstitutional because it 'mandate[d] a responsibility upon local government to provide benefits for illnesses not covered under prior law.' The classification of roads in New Hampshire is a constantly evolving process which predates the adoption of Article 28-a. As the transportation needs of one area of the state grow, review of our highway system is undertaken and roads may move between the state-maintained system and the local system. Similar review is authorized at the local level, where a town may review the need for a road and decide either to discontinue it or limit its maintenance.

"In this case, the state has not created any new program nor required that the town accept a new responsibility. It has simply decided that a road which now serves only local traffic will no longer be part of the state-maintained highway system. That the contested segments now serve only local traffic may be a new development; the town's responsibility for maintaining roads that serve only local traffic is not new.

"The town notes that RSA 228:27 authorized the commissioner to designate segment C for winter maintenance by the town. The commissioner was also authorized to designate segment A as a class V highway. Although RSA 231:3, I, provides that all class V highways are to be maintained by the city or town in which they are located, the commissioner's action did not mandate a new responsibility for the town regarding either segment. RSA 231:3 was first enacted in 1945; RSA 228:27 was amended in 1949 to authorize the commissioner to designate roads for winter maintenance. Both these statutes predate the adoption of Article 28-a in 1984. Through reclassification, the commissioner returned to the town responsibility for maintenance of this local mileage, which is subject to its preexisting obligations under RSA 231:3, I, and RSA 228:27. Adoption of the town's position would essentially limit the roads that a municipality must maintain and require the state to maintain reclassified local roads or any newly constructed ro adways. Accordingly, the state did not mandate any new, expanded or modified programs or responsibilities on the town in violation of Article 28-a.

"In view of our determination that the reclassification did not create an unconstitutional unfunded mandate, we need not determine whether the enabling statutes, RSA 228:27 and :36, violate Article 28-a."

The ruling of the Superior Court is affirmed.
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Title Annotation:Town of Nelson vs. New Hampshire Department of Transportation
Publication:Public Works
Geographic Code:1USA
Date:Aug 1, 2001
Previous Article:WORTH TELLING.
Next Article:East Bay Municipal Utility District.

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