dissenting: West Deering Road is a Class V highway which the town is required to maintain. RSA 231:8; RSA 245:1; RSA 247:1. It is used by twenty-five to thirty cars a day. This number is increased in the summer months. Two families live on the road in the town of Deering. The road is a rural mail route.
I find no statutory authority for the town to impose on others the burden of performing its duty or to require off-site improve*396ments as a condition of the granting of subdivision approval.
Even granting that statutory authority exists, as the court holds, the constitution prevents imposing the whole cost of a public benefit upon a landowner instead of upon the public generally. Such action amounts to a special assessment and must conform to constitutional requirements of equality and proportionality. N.H. Const. pt. I, art. 12; State v. Jackman, 69 N.H. 318, 41 A. 347 (1898). The value of the assessment must not exceed the value of the special benefit, a benefit not common to the public in general. Manchester v. Straw, 86 N.H. 390, 391-92, 169 A. 592, 593 (1933). See also Opinion of the Justices, 109 N.H. 396, 401, 254 A.2d 273, 277 (1969); Standard Oil Co. v. Nashua Street Rwy., 88 N.H. 342, 344, 189 A. 166, 167 (1937).
Off-site exactions may be required of a subdivider only in proportion as “bears a rational nexus to the needs created by, and the benefits conferred upon, the subdivision.” Longridge Builders, Inc. v. Planning Bd. of Princeton Tp., 52 N.J. 348, 350, 245 A.2d 336, 337-38 (1968); see Manchester v. Straw supra; 3 R. Anderson, Zoning § 19.36 (1968, Supp. 1974); 3 A. Rathkopf, The Law of Zoning and Planning ch. 71, § 7 (1972, Supp. 1973); D. Hagman, Urban Planning and Land Development Control Law § 138, at 255-58 (1971). The extent of the special benefit, if any, which plaintiff would receive is a question of fact “to be decided in... case of controversy by a judicial tribunal”. Manchester v. Straw, 86 N.H. 390, 393, 169 A. 592, 594 (1933). Without such a finding there can be no legal basis for requiring the plaintiff to bear any part of the burden of the off-site improvement.
It could not be found that the general public will not benefit to some extent by the improvement and therefore the requirement that plaintiff bear the entire expense is unconstitutional. Seventy-seven years ago Justice Blodgett in striking down a Concord ordinance which would have required a landowner to keep the highway in front of his premises in suitable condition said that shifting a public burden on one class of property owners could not “be done in this jurisdiction until the constitutional reservations and guarantees intended ‘as a protection of the subject against the government...’ are regarded as ‘glittering generalities’ merely and the reported decisions of three generations of courts are reversed. That time may come, but it has not yet arrived.” State v. Jackman, 69 N.H. 318, 332, 41 A. 347, 349 (1898). Apparently, the time has now arrived over my dissent.