Town of Nelson v. New Hampshire Department of Transportation

NADEAU, J.,

dissenting. When the commissioner of the department of transportation reclassified segment A from a class I State highway to a class V town highway, he did not obtain citizen approval for town funding of its maintenance. Nor did he determine and allot a sum for the State to contribute toward its maintenance, as allowed by statute. See RSA 228:36 (1981). By his action, therefore, I believe the State assigned a new, expanded or modified responsibility to the town in such a way as to necessitate an additional local annual expense, contrary to the State Constitution:

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.

N.H. CONST., pt. I, art. 28-a.

The majority relies on Nashua School District v. State, 140 N.H. 457 (1995), to hold that the State did not impose an additional obligation upon the town. In Nashua, we considered whether a 1985 amendment imposing upon towns the responsibility for funding special education costs of students placed in “residential schools” was an unfunded mandate. See id. at 459-61. We concluded that it was not, because the responsibility of the towns to fund special *81education costs of students placed in “residential schools” was required by another statute before the amendment. See id. at 461.

The majority compares the special education costs in Nashua to the maintenance costs here, noting that class V highways, like “residential schools,” have historically been the responsibility of towns, presumably under RSA 231:3, which was enacted before the adoption of Part I, Article 28-a. That responsibility, however, originates from the laying out of class V highways by cities and towns under RSA 231:1. And the law acknowledged a potential State responsibility for reclassified class V road maintenance, even before the adoption of Part I, Article 28-a. See RSA 228:36 (1981).

Nevertheless, the majority concludes that a new local expenditure, necessitated by State action creating a new class V highway, is not a new responsibility. I disagree. Even if that proposition were correct, however, the constitution protects towns against new and expanded or modified responsibilities requiring additional unfunded expenditures. The new $3,500 cost forced upon the town to maintain segment A necessarily expands or modifies the town’s responsibilities. I believe this expansion and modification is contrary to the constitution.

Interestingly, the statute prohibiting the imposition of unfunded mandates in State agency rule-making, although not necessarily controlling here, provides that a State agency shall not mandate any “new, expanded or modified programs” including those functions of a nature customarily undertaken by municipalities whether or not performance of such functions is required by statute.

Such programs also include, but are not limited to, functions such as police, fire and rescue, roads and bridges, solid waste, [and] sewer and water[.]

RSA 541-A:25, II (1997).

The State argues that the reclassification did not impose any new responsibilities on the town because the town could choose either not to maintain the road or to discontinue it. The State relies on Opinion of the Justices (Solid Waste Disposal), 135 N.H. 543, 546-48 (1992), in which we held that proposed legislation prohibiting the disposal of recyclable materials was not an unfunded mandate. There, we concluded that although many towns might respond to the legislation by expending resources to create recycling programs, the towns had no obligation to provide those programs because they were free to allow any costs resulting from the legislation to be borne directly by their residents. See id. at 547.

*82Here, however, the town does not have a meaningful choice to avoid maintaining the State-created class V highway. It is helpful to remember the purpose of Part I, Article 28-a is to “provide a safety net to save cities and towns from the burden of coping with new financial responsibilities, not of their own creation, and to permit them a stronger grasp of their fiscal affairs.” N.H. Munic. Trust Workers’ Fund v. Flynn, Comm’r, 133 N.H. 17, 27 (1990).

The town can avoid responsibility to maintain a class V highway only by discontinuing the road, see RSA 231:43 (Supp. 2000), or by failing to maintain it in suitable traveling condition for five successive years, at which point it becomes a class VI highway. See RSA 229:5, VII (Supp. 2000). Either option, however, exposes the town to additional liability and expense for resulting damages. See RSA 231:48, :49, :90, :91 (1993).

The State also argues that the reclassification is not an unconstitutional unfunded mandate, but is an acknowledgment that future use and maintenance of the road is primarily a matter of “local control and local decisions.” The State cites no authority for this proposition and I see no justification to conclude that Part I, Article 28-a excludes from its prohibition those State actions which involve primarily “local matters.”

In fact, RSA 230:55-:62 (1993) provide procedures to deal with this “local matter.” If the commissioner had followed these procedures, he could have sought to discontinue segment A instead of reclassifying it. In the process, the selectmen would have been given the opportunity to determine whether there was occasion for the use of segment A for town highway purposes. If the selectmen notified the commissioner that such occasion existed, the road would have become a class V highway by town request, not State mandate, and would be subject to town maintenance. If the town did not want to maintain segment A, it could have notified the commissioner that no occasion existed for its use and he could have discontinued use of the road. The State then, not the town, would have been responsible for any resulting damages as provided for in the statute. See RSA 230:61, :62 (1993).

It seems clear that the reclassification assigned a new, expanded or modified responsibility to the town, resulting in precisely the type of unilateral, unfunded State mandate the legislature and the citizens intended to prevent by proposing and adopting Part I, Article 28-a of the New Hampshire Constitution. For that reason, respectfully, I dissent.