When You Can’t Fight City Hall - No Compensation for Noise and Dust from Nearby OHRV Trails
Gorham homeowners recently lost a legal challenge aimed at halting off-highway recreational vehicle (OHRV) use near their properties, with the New Hampshire Supreme Court affirming that both the State and Town of Gorham were immune from most claims. Stearns v. Town of Gorham, N.H. Sup. Ct. Order (Mar. 12, 2025). (Although the Court issued an order rather than an “opinion” and thus the ruling has no precedential authority, the order can provide guidance on how a New Hampshire court might rule if presented with similar facts.)
Background
The plaintiffs, seven Gorham homeowners, live near the Presidential Rail Trail and U.S. Route 2, both of which the State designated for seasonal off-highway recreational vehicle (OHRV) use starting in 2011. With the Town of Gorham’s approval, the State expanded OHRV use to part of Route 2 in 2013. In 2018, the plaintiffs filed suit, claiming that noise, dust, and fumes from OHRVs had made their homes unlivable.
Sovereign Immunity for “Discretionary” Functions
Government entities are shielded from liability for discretionary functions to preserve the separation of powers and prevent courts from second-guessing policy decisions made by elected officials and public administrators. Immunity for discretionary acts ensures essential government activities - those involving competing economic, social, and political considerations - can be carried out without fear of litigation. Allowing juries or courts to override these decisions would obstruct normal governmental operations and undermine the government's ability to govern effectively.
Examples of Protected, Discretionary Functions
The following actions are “discretionary” functions because they involve public policy considerations, balancing of interests, or allocation of resources:
Decisions whether to lay out public roads (highways). Rockhouse Mt. Property Owners Assoc. v. Town of Conway, 127 N.H. 593, 600 (1986).
Decisions about the location of parking spaces. Sorenson v. City of Manchester, 136 N.H. 692, 694 (1993).
Placement or abandonment of an alleyway. Gardner v. City of Concord, 137 N.H. 253, 258 (1993).
Traffic control decisions. Bergeron v. City of Manchester, 140 N.H. 417, 422, 424 (1995).
A municipality’s a) design of a dam, specifically the decision to have a single outlet, and b) decision not to remove flashboards from the dam in anticipation of rain, after balancing water conservation, potential flood risks, and financial costs, and broader water management planning under its Reservoir Management Model. Tarbell Administrator, Inc. v. City of Concord, 157 N.H. 678 (2008).
A municipality’s decisions to offer a youth basketball program and allocate municipal resources to it and its decisions regarding how to train and supervise coaches and referees in the program. These decisions involved judgments about staffing, budget, and safety priorities. Hacking v. Town of Belmont, 143 N.H. 546 (1999)
A county’s decision not to install seatbelts in inmate transport vans, due to weighing inmate safety against officer security and risk of escape, and policy-level security decisions about inmate transport procedures. Maryea v. Strafford County, 168 N.H. 414 (2016), modified, Maryea v. Strafford County, 168 N.H. 414, 125 A.3d 417 (2016)
Examples of Unprotected, Ministerial Functions
On the other hand, courts found the following actions are “ministerial” because they involved the execution of established plans or duties without significant policy discretion:
The failure to clear debris from a brook and culvert, which obstructed water flow. This was a routine maintenance obligation, not a policy decision. Tarbell.
Referees’ and coaches’ conduct during a basketball game, such as allowing the game to escalate and failing to protect players and the failure to supervise the specific game properly, as this was part of implementing an existing recreational program. These were on-the-ground decisions not involving public policy. Hacking.
Court Rulings in Stearns
Both the Superior and Supreme Courts applied immunity to bar the plaintiffs’ claims. First, the courts held the legislature did not waive sovereign immunity when it enacted the statutes governing the siting of OHRVs on state land. Second, the decision to authorize the OHRV trail necessarily involved a consideration of public and private interests for and against OHRV use in Gorham and therefore necessitated the weighing of competing economic, social, and political factors “characteristic of a discretionary function.”
Hope for Property Owners
Although the Supreme Court upheld the dismissal of the plaintiffs’ nuisance claims based on sovereign and discretionary immunity, it upheld the trial court’s ruling that the Town and State’s conduct in permitting OHRV use in Gorham resulted in noise, dust, and fumes that substantially and frequently interfered with the plaintiffs’ use and enjoyment of their properties, thereby effecting a taking of the plaintiffs’ property. This sort of activity is called “inverse condemnation,” which means taking private property without normal eminent domain proceedings. The remedy for inverse condemnation is compensation through the payment of damages by the government. Because the plaintiffs failed to provide sufficient evidence of their damages, the courts did not award any in this case.
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