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NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Reporter, Supreme Court of New Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any editorial errors in order that corrections may be made before the opinion goes to press. Errors may be reported by E-mail at the following address: reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 a.m. on the morning of their release. The direct address of the court's home page is: http://www.courts.state.nh.us/supreme. THE SUPREME COURT OF NEW HAMPSHIRE ___________________________ Hillsborough-southern judicial district No. 2009-158 MICHAEL CLARE, TRUSTEE OF HORIZON REALTY TRUST v. TOWN OF HUDSON Argued: January 20, 2010 Opinion Issued: June 16, 2010 David M. Groff, of Pelham, on the brief and orally, for the plaintiff. Hage Hodes, P.A., of Manchester (Stephen C. Buckley on the brief and orally), for the defendant. CONBOY, J. The plaintiff, Michael Clare, appeals a decision of the Superior Court (Dalianis, J.) affirming a decision of the planning board for the Town of Hudson (Town) denying Clare's request to refund the cost of a performance bond filed with the Town. We affirm in part, reverse in part, and remand. The record evidences the following facts. Clare, as trustee of the Horizon Realty Trust, is one of the developers of the Thurston's Landing subdivision in Hudson. On August 9, 2000, the Town of Hudson Planning Board (planning board) approved the Thurston's Landing West subdivision, but required a performance bond of $81,705 for improvements to Bush Hill Road at its

intersection with Flying Rock Road. On September 8, 2000, Horizon Realty Trust paid the Town $81,705, which was used to create and fund a separate Town account (the Bush Hill Road account). On February 7, 2005, the Town paid ABB-Kin & Sons, Inc. $1,500 from the Bush Hill Road account to conduct drill tests on Bush Hill Road to determine the subsurface materials needed for the improvements. On March 4, 2005, Town Engineer Tom Sommers proposed certain improvements to address "a less than adequate sight distance most specifically in the northerly direction looking from Flying Rock Road without increasing the vehicle speed on Bush Hill Road." Sommers noted that funding was available from the Bush Hill Road account, "which was paid by the Thurstons [sic] Landing developer and specifically marked for this improvement," and which had grown to $86,910 due to accrued interest. The board of selectmen unanimously approved the proposed improvements at a meeting on March 22, 2005. The improvements included smoothing down a "knob in the right of way area" and slightly raising Bush Hill Road at its lowest section. The board of selectmen noted, in connection with the proposal to raise the section of Bush Hill Road, that "[t]he Highway Department is going to be grinding and repaving that area, so they can elevate that by approximately

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