The Role Played by the Municipality
Private Roads in NH Series - Part VI
The Role Played by the Municipality
New Hampshire's charming towns and tranquil countryside beckon those seeking a peaceful way of life. Amidst this idyllic setting, many residents find themselves living next to private roads, a unique facet of the State's rural character. However, maintaining these private roads often presents a fair share of difficulties, especially when a private road lies near or within the boundaries of a city or town.
When dealing with private road issues, municipal officials must keep in mind the elements of common law implied acceptance of highways. It is not enough that the usual practice is to accept roads by town meeting vote. Municipal officials should, in general, refrain from maintaining private roads and always make clear that they (a) do not regard a private road as a public highway and (b) do not intend—by their actions—to accept it as public. In this post, we will unpack some of the intricacies of private road maintenance in New Hampshire, with a particular focus on the municipality’s role.
Clapp v. Jaffrey: The Landscape of Private Road Maintenance
A key New Hampshire decision regarding private road maintenance, in the municipal context, was announced decades ago in Clapp v. Jaffrey, 97 N.H. 456 (1952) (prohibiting municipalities from spending public money to maintain private roads).
The Court held that for public maintenance of a private road to be constitutional, it must meet specific enumerated criteria. The activity cannot significantly increase the town's equipment or personnel needs, and it cannot substantially alter the town’s snow maintenance planning. Also, the beneficiaries of public maintenance must fully reimburse the town, such that no tax funds are spent on the private benefit. The legislative body (whether it be a town meeting, town, or city council) has no authority to alter this state of affairs. A town meeting vote to maintain one private road or all private roads in a town is simply put: illegal and not enforceable
Clapp ultimately underscores that public funds must serve explicitly public purposes per the Constitution. Using taxes collected from all citizens to privately benefit a select few is illegal—no matter how small the amount.
Winter Maintenance Challenges: Beyond Snowplowing
While winters in New Hampshire evoke snow-covered vistas, maintaining private roads in freezing months presents some legal questions for municipalities.
Roads may be laid out that are open and maintained only between November 15 and April 1. Such roads are called “winter roads.” RSA 231:24. The only way a road can become a “winter road” is to be laid out that way, by petition, through a proceeding under the layout laws. Municipalities can charge yearly rentals to the property owners who benefit from the winter road layout.
The winter road law was enacted in 1897. The intent of the statute may have been an attempt to legitimize the plowing of private roads by towns, a practice not legally allowed without reimbursement to the municipality by benefited property owners. Clapp v. Jaffrey, 97 N.H. 456 (1952). Laying out winter roads for this purpose is generally not recommended, for several reasons. First, since the winter road law was enacted, highway liability law has changed significantly. After all, New Hampshire municipalities no longer have complete sovereign immunity. Instead, municipalities now have a duty to prevent “insufficiencies” on all town-maintained highways. RSA 231:90 - 92-a.
Additionally, in Catalano v. Windham, 133 N.H. 504 (1990), the New Hampshire Supreme Court emphasized that mere snowplowing does not work to sufficiently maintain a road. To combat annual erosion from rain, snow, and ice, summertime maintenance like repaving or cold-patching is essential to protect against yearly erosion caused by elements such as rain, snow, and low temperatures.
Attempting to confer winter road status on an otherwise private road, where the only work to be done by the city or town is snowplowing, raises too great a risk that the town may be found liable for road insufficiencies caused by a private party’s off-season maintenance, or lack thereof.
Emergency Lanes: Addressing Public Safety Needs
While municipalities regularly maintain Class IV/V highways, there are clear distinctions between classed highways and private roads. Recognizing the public safety need to keep certain private roads passable for emergency vehicles, the General Court enacted RSA 231:59-a in 1994.
This authorizes spending highway funds on Class VI and private roads to keep them open for fire, rescue, and other emergency services. Importantly, this does not reclassify such roads as Class V highways, which would require the municipality to assume additional responsibilities in the form of maintenance and liability.
To declare an emergency lane, the select board must hold a public hearing. In the case of a private road, “all persons known to have an interest in the [road]” must be given notice by regular mail ten (10) days prior to the hearing, and the private road cannot be declared an “emergency lane” without owner permission, which can be withdrawn at any time. RSA 231:59-a, III.
After the public hearing concludes, the select board must make written findings in the minutes of its meeting that “the public need for keeping such lane passable by emergency vehicles is supported by an identified public welfare or safety interest which surpasses or differs from any private benefits to landowners abutting such lane.” RSA 231:59-a, II. Put differently, a highway may not be declared an emergency lane solely for the private benefit of abutters on that highway. This requirement stems, in large part, from Clapp v. Jaffrey (1952), 97 N.H. 456 (1952).
If a road is ultimately declared an emergency lane, the municipality may then expend highway funds to remove brush, repair washouts or culverts, or do other work “deemed necessary to render such [road] passable by firefighting equipment and rescue or other emergency vehicles.” A capital reserve or trust fund may be established for this purpose. RSA 231:59-a, I.
Conclusion
In summary, private roads present a number of perennial questions for municipalities and landowners alike. And, while Supreme Court decisions like Clapp and Catalano have worked to provide some clarity to interested parties and legal practitioners, several ambiguities do remain. Navigating these challenges requires vigilance, legal understanding, and cooperation between municipalities and property owners who live next to private roads. As New Hampshire continues to evolve in the coming years, so too will its private road jurisprudence.
You can contact Alfano Law by calling (603) 856-8411 or at this link.