City Council weighs eminent domain petition over Cottonwood Avenue turnaround

LACONIA — The fate of the Cottonwood Avenue cul-de-sac lays in the hands of the Laconia City Council.

The council held a public hearing on a petition to accept the cul-de-sac into the city road system by laying out a class V public highway at its June 13 meeting. The petition is a move by Cottonwood residents to prevent the Taylor Community from changing the road formation at the end of the street, where it owns multiple properties. The petition was filed by attorney Stephen Nix on behalf of Nancy Ettelson and Matthew Lahey, both multi-decade property owners on Cottonwood, in January. 

The dispute at the heart of the petition is whether there is occasion, or compelling public need, for the city to make the end of Cottonwood Avenue a public road. 

Cottonwood is connected to Taylor Home Drive via a locked gate; this gate is closed to the public, making Cottonwood a no-outlet street. The cul-de-sac has functioned as a turnaround for vehicles since it was built and paid for by the Taylor Home in 1987, when it developed property there. 

For a private road to become public, it must be dedicated by the landowner and then accepted by the city. A road layout by a city government is a form of eminent domain that can be used for street acceptance.  

In 2019, the Taylor Community submitted an application to the planning board to convert the cul-de-sac to a hammerhead turnaround. A lawyer representing Taylor at the council hearing confirmed this would allow Taylor to build at least one new cottage on its land at the end of the road, for which the cul-de-sac does not afford sufficient frontage. Chris Cole, a lawyer who represented Taylor at both the public hearing and throughout the litigation process, noted that the reason Taylor wants to change the road formation is not at issue in the decision before the council.

The 2019 proposal was rejected by the planning board, and Taylor subsequently appealed that denial in superior court. The court determined that Taylor had indeed dedicated the cul-de-sac to the city in 1987 but that the city had never accepted it, meaning that Taylor maintains its private land ownership over the cul-de-sac. According to the court decision, though the site plan proposed by Taylor and approved by the planning board in 1987 expressed Taylor’s intent to convey the cul-de-sac to the city, and though for many years the city had performed some maintenance on the end of Cottonwood Avenue, there was no implicit or explicit acceptance. 

The petition now asks the city council to perform that acceptance, making the cul-de-sac on Cottonwood Avenue a public road and therefore out of bounds for redevelopment by Taylor. 

State law establishes eight factors that courts use to determine if there is occasion to lay out a public road: integration within the existing road system; ease of existing traffic flow; improvement to convenience of travel; facilitation of transportation of existing school children; improved accessibility to the business district and employment centers; improved accessibility for fire, emergency, and police services; benefit to a significant portion versus small fraction of town tax base or year-round residents; and anticipated frequency of road use. 

Petitioners argued at the hearing that the cul-de-sac is safer and overall better for traffic flow on Cottonwood Avenue, particularly for emergency and mail vehicles, constituting a meaningful public need to keep it in place. The petition said that the use of a hammerhead turnaround, requiring a multi-point turn, is “unsafe and a waste of time.” 

Public commenters before the council, all but one residents of Cottonwood or Walker Street, said that there had been a dramatic increase in traffic because of the Taylor Community’s presence and that the cul-de-sac was key to maintaining traffic safety and flow in a neighborhood with ample dog-walkers and children.  

“A hammerhead over a cul-de-sac is not nearly as safe,” said Nancy Ettelson, one of the petition filers who, besides Taylor, is the only Cottonwood resident with property abutting the cul-de-sac. “It’s not as safe as going around a cul-de-sac with your headlights showing you everything you’re seeing all the way around,” especially in darkness or inclement weather. 

Cottonwood resident Jim Arsenault, who was on the Taylor Community board of trustees for nine years and served as chair of that board and chair of its finance committee, said he supported no street change and encouraged the council to accept the cul-de-sac. “I wholeheartedly support [Taylor’s] mission, however in this case I think they are wrong,” Arsenault said. 

Daniel Schoeder said he bought his house on Cottonwood Avenue because of the cul-de-sac and expressed concern for safe maneuverability of emergency vehicles.

Though commenters noted they support Taylor and its mission, they also criticized Taylor Community for the increase in traffic and noise on what they described as a formerly quiet street.

Vice President of Facilities Management Kirk Beswick spoke on behalf of Taylor. 

“We pay more taxes than all of the folks represented here together. We are invested in the community... And the increased traffic is us maintaining the property that we have bought,” Beswick said. 

“We are a good neighbor,” he continued. “Most of the folks here talking about walking their dogs walk onto our property.”

“Let’s not lose in this conversation the fact that Taylor Community is a good neighbor,” Beswick said to the council. “What is really at stake here, and what you need to decide, is property rights.”

Though the potential reconstruction is meaningful largely to the residents of Cottonwood Avenue, the petition argues that they represent a significant enough portion of the city tax base for their interest to qualify as a public interest.

“The interest of the City in laying out a circular cul-de-sac that provides a safe and efficient traffic flow for an 1,800-foot dead-end street with 30 houses,” the petition argues, “Far outweighs Taylor's desire to construct one additional residential unit.”

The Taylor Community contests this point, arguing in its written response to the petition that “the extraordinarily limited alleged ‘public need’ does not outweigh Taylor's fundamental property rights.”

“We are talking about a three-point turn instead of a turnaround. That’s the public benefit to seize somebody’s property? I don’t think so,” said Cole.

Cole, and Taylor’s written opposition, characterized the petition as rooted not in public need but in private motivation to prevent Taylor from inconveniencing the petitioners by exercising its property rights. 

“It is a hail Mary attempt to deprive Taylor of its private property following an unsuccessful effort to do so via the court system,” the Taylor memorandum states.

Additionally, a finding by the city of a public need for the cul-de-sac to be made public at this time would not be credible, Taylor’s opposition states. 

This is because city government, in studies done by the Department of Public Works, has documented firstly that the end of Cottonwood Avenue remains, and ought to remain, a private road, and secondly that a hammerhead turnaround poses no meaningful obstacle to the safety or functionality of the road for city vehicles.

Notably, Taylor’s response cites a 2019 motion by the city council to accept en masse many of the private roads it had been maintaining for decades. The council accepted certain roads based on the recommendations of a street analysis performed by the Department of Public Works in 2017.

In its report, as cited by Taylor’s response, “Public Works did not identify a public need for the Cul-De-Sac and did not suggest that the Council accept the Cul-De-Sac as a public street, and the Cul-De-Sac was not among the streets accepted by the Council.”

Taylor’s response asserts that the city has affirmed the status of the cul-de-sac as private repeatedly since 1987 by overtly neglecting to accept it and Taylor, as determined by the court, retains the right to develop its private property by building a hammerhead.

“A radical and abrupt change in the City’s position on this matter, at this stage, and especially in light of Taylor’s efforts and expenditures in connection with the Litigation,” Taylor’s response states, “would result in unfair, unacceptable, and inequitable prejudice to Taylor.”

At the hearing, Cole argued that the difference between a hammerhead and cul-de-sac was not meaningful enough to qualify as a reason to lay out under any of the eight factors, which he addressed one by one.

In terms of integration with the existing road system, access to business centers and access of public and emergency vehicles, a hammerhead “would do literally nothing,” Cole said, and that a cul-de-sac over a hammerhead had “no net benefit to the city or residents.” 

“This is not a court,” Mayor Andrew Hosmer said, following Cole’s point by point refutation that the cul-de-sac met the legal occasion to lay out. “We’re just average Joes sitting up here trying to figure out what fundamental fairness is to the people who live in this city and the taxpayers — and that includes your client, don’t get me wrong.”

Hosmer said that, though the cul-de-sac was never formally accepted by the city after its 1987 dedication, “We all knew what the lay of the land was.” He said that the city’s non-acceptance could be considered a “technicality of sorts — very important in a court of law.” 

“We’re not judges,” Hosmer repeated. “We’re just trying to figure out what to do on behalf of the taxpayers here and what is at the mutual benefit of this city.”  

The council voted unanimously to table a decision on the petition and take it up at a later meeting. 

To read the full petition: laconianh.gov/AgendaCenter/ViewFile/Item/21036?fileID=43608 

Read the Taylor Community’s memorandum of opposition responding to the petition: laconianh.gov/AgendaCenter/ViewFile/Item/21036?fileID=43609

View the public hearing on the petition: youtu.be/x31yqBVq-H8?t=970