FAILED Article 2012-19 Citizen Petition–Discontinue Cross Rd

[Rob C - Moderator]

(renumbered by curt 2/10/12)

Currently not in final form

Article 2012-17 Citizen Petition – Discontinue Cross Road

To see if the town will vote to discontinue completely (pursuant to RSA 231:43) the entire length of the Cross Road – so called, from the intersection of Beach Plain Road to the intersection of Back Road.

[safety frog]

How many landowners are impacted?

[AlfredTwo]

And why do we want to do this?

[curt]

V. Cross Road – Frank Boksanske, Phil Auger
Phil Auger introduced himself stating he worked with UNH Cooperative Extension and was part of the South
East Land Trust. The Trust owns property that abuts Frank Boksanske’s property to the East and runs into
Kingston, known as the Meadows, totaling approximately 500 acres. The Trust allows passive recreation,
hunting and fishing only, as well as walkers. He stated gates were installed on the Meadows and although open
for public access, no motorized vehicles were allowed and he wanted Cross Road to be included in this and to
install gates. The 1954 Town Meeting minutes were quoted where it was voted "to close to public travel the
road from Beach Plain to Back Road, so called." He stated it was a gray area if the road was discontinued; he
did not feel this made the road a Class VI road. Road Agent Bruce Caillouette stated that from his research,
Cross Road was a Class VI road and was open to the public for recreation, including OHRVs. The Town still
has jurisdiction over a Class VI road.
Vice-chair Giordano stated that for Frank to build his home, he met requirements for the 200’ frontage needed
by using Cross Road. Phil Emilo mentioned ‘prescription’ and stated it has been 57 years and the public is still
using the road. Following further discussion, it was determined that Patty would contact Peter regarding this
issue and get his opinion on the classification of the road

III. Cross Road
Chairman O’Neil read Attorney Peter Loughlin’s evaluation stating that the vote to close Cross Road classified
the road as a Class VI road with Class VI public entitlements. If the vote had been to discontinue the road, then
public access could be denied. The road is subject to gates and bars but the gate could not be locked. Vicechair
Giordano informed the Board that Frank Boksanke’s 200’ frontage was on Cross Road so gates, if erected,
must be set further down Cross Road to keep the 200’ frontage in conformance with our building regulations.
Following discussion, it was determined that a Warrant Article can be put on the ballot asking the voters to
discontinue the remaining portion of Cross Road, allowing the South East land Trust to erect locked gates and
limit the vehicle access to their property. It was stated the language would need to be clear for the voters, only
discontinuing the road beginning at the end of Frank Boksanke’s lot line. It was also mentioned that abutters
will need to be notified. Phil Auger stated the Trust’s property is for passive recreation, by foot. Currently
there is trash, campfires, evidence of marijuana growth, etc. The police have responded to many calls to the
area but images from cameras currently set up have not produced images clear enough to identify offenders.
Chairman O’Neil assured Phil Auger that the Board wanted to work with the South East Land Trust but they
wanted the issue addressed correctly.

I just watched the video of the deliberative session and I am amazed that none of this was mentioned. Betsy Sanders is on the board of SELTNH, which holds my two conservation easements.

[curt]

March 1, 2012
Cross Road, Danville

In Danville, "Cross" Road is a 200+ year old dirt road laid out through private property and once was used to transport lumber from North Danville to the sawmill in Brentwood. Today, Cross Road is not maintained by the town, is still a narrow dirt road, and has only one house half way down the road.

In 1954, the voters of Danville approved a vote to "close to public travel the road from Beach Plain Road to Back Road" (Cross Road). Because the legal status of Cross Road is unclear, myself, other abutters, and other registered voters have proposed a petitioned warrant article for the 2012 Town Meeting to use the correct legal language "to discontinue" instead of "to close" the Cross Road.

The 2012 warrant article will clarify that the road is no longer open for "public travel" as stated in the 1954 warrant article. Because of the poor traveling conditions of the road, the road is generally used only by the abutters to access their own property. Unless private property is posted to prohibit access or certain uses, the public generally retains the privilege to go onto another persons property for recreational purposes such as walking, fishing, and hunting. The discontinuance of public travel on Cross Road is not intended to exclude persons who wish to enjoy low impact outdoor activities that respect the use of private property and the conservation of the natural resources on it.

Please vote "Yes" on the Danville warrant article to support the request of the abutters and petitioners to discontinue Cross Road to public travel. Thank you.

Frank Boksanske

Danville

[JohnH]

Because the language of the petition states to completely discontinue the road I have been told that the land the road sits on will become the property of the adjacent abutters divided to the center line of the road. If that is the case then wouldn't that mean that Mr. Boksanske would now be traveling over the property of others to get to his property? It is too bad that he didn't come to the Deliberative session to explain his reasoning and allow us to ask questions at the time.

[shawn_oneil]

Because the language of the petition states to completely discontinue the road I have been told that the land the road sits on will become the property of the adjacent abutters divided to the center line of the road. If that is the case then wouldn't that mean that Mr. Boksanske would now be traveling over the property of others to get to his property? It is too bad that he didn't come to the Deliberative session to explain his reasoning and allow us to ask questions at the time.

All adjacent property owners would have rights to traverse this discontinued road, so Mr. Boksanke would be able to legally travel to his property.
Shawn

[curt]

failed 335 no 306 yes

[curt]

Selectmen reviewed the letter received from Frank Boksanke requesting permission to erect locked gates on Cross Road. Selectmen asked Patty to forward the letter to the PD, FD, and Road Agent for their input and comments and to schedule the departments and Frank for a joint meeting with the BOS on April 16, 20

[curt]

[curt]

231:21-a Uniform Provisions Governing Class VI Highways. – All class VI highways, whether such class VI status resulted from a layout pursuant to RSA 231:21, a discontinuance subject to gates and bars pursuant to RSA 231:45, or by the failure of the town to maintain and repair such highway in suitable condition for travel thereon for 5 successive years or more as set forth in RSA 229:5, VII, shall be subject to the following provisions:
I. All such highways shall be deemed subject to gates and bars; provided, however, that any gates or bars maintained by private land owners shall be erected so as not to prevent or interfere with public use of the highway, and shall be capable of being opened and reclosed by highway users. The selectmen may regulate such structures to assure such public use, and may cause to be removed any gates or bars which fall into disrepair or otherwise interfere with public use of the highway.
II. Even though, as set forth in RSA 231:93, class VI highways are not subject to any municipal duty of care or maintenance, the municipality shall have the same regulatory authority over such highways as is the case with class V highways, including but not limited to the authority to regulate their use pursuant to RSA 41:11 and RSA 47:17, VII, VIII and XVIII, to regulate the excavation or disturbance of such highways pursuant to RSA 236:9 through 236:11, to regulate driveways and other access pursuant to RSA 236:13, and to establish weight limits pursuant to RSA 231:191.

I don't see how the selectmen could legally grant a request to bar public access to a class VI road.

There is no provision for the town to erect gates, only the landowners, and the selectmen have the duty to assure public access if gates are erected.

It was suggested to me that if the town can't put gates on Cross Road, then they should not have put them on Tucker Road, but the difference is that Tucker road was designated a municipal trail by town vote.

CHAPTER 231-A
MUNICIPAL TRAILS
Section 231-A:4
231-A:4 Public Trail Use Restrictions. – In this chapter "public trail use restrictions'' means any restrictions upon use of a trail by the general public. Such restrictions may be imposed by a landowner as a condition of grant or dedication of a trail acquired under RSA 231-A:5, or by vote of the local legislative body or its designee at or subsequent to the time the trail is established, or by the local governing body under RSA 41:11. Such restrictions may include, but are not limited to, prohibition of motor vehicles, prohibition of wheeled vehicles, prohibition of off highway recreational vehicles, or restriction to specified modes of travel such as horse, bicycle, or foot. Such restrictions, if posted using legible signs at entrances to the trail from public highways, or at any property boundaries where new or different restrictions become applicable, shall be enforceable in the same manner as traffic violations as set forth in RSA 265. Any person violating such restrictions shall be guilty of a violation.

It was also suggested to me that the town did not have authority to convert Tucker Road from being a Class VI road to a municipal trail, that it should have been discontinued as a Class VI road then established as a municipal trail, two separate votes, but a direct conversion is specifically allowed:

231-A:2 Reclassification of Highways; Damages. –
I. Any class V or VI highway may be reclassified as a class A or class B trail, and any class A trail may be reclassified as a class B trail, by vote of the local legislative body.

[curt]

To the selectmen:

Please treat this as a letter to the selectmen from a town resident.

Shawn once asked if I ever disagreed with Betsy Sanders. There have been other times in the past but here is one, for sure.

i signed the petition for Article 2012-19 but then I had misgivings and voted against it.

I don't think Frank Boksanke deserves special consideration. Nobody forced him to build a house on a class VI road, allowed but clearly contrary to public policy in NH. He only moved in in 1998. Spruce Valley and its residents were here when I moved to town in 1983, and whether their use was strictly legal or not they were here long before he arrived.

Also, I can't help but recall that when some of us opposed the town funding of the reconstruction of the Sandown Road bridge, some people, including I believe at least one sitting selectman, literally accused us of wanting a "private road". Well now comes Mr. Boksanke and I have yet to hear such criticism directed at him.

My sympathy lies with the Southeast Land Trust of New Hampshire, which will go to more trouble and expense if gates cannot be erected at the ends of the road. But the case was not made for them at the deliberative session. If the intent is to put this on the warrant for next year, my suggestion would be to sell it based on the land trust and not on the interests of Mr. Boksanke.

I firmly believe that with the failure of Article 2012-19, the selectmen have absolutely no authority to put locked gates on Cross Road. Below are the legal citations that I posted recently on SpeakoutDanville.

-- Curt

After this I quoted the contents of my prior post here on SoD.

[curt]

Can anybody say what happened at the BOS meeting on Monday evening?

[curt]

II. Cross Road – Frank Boksanke
Frank, with Phil Auger, asked the Selectmen to allow Phil/SE Land and Trust to erect locked gates at Cross Road. He stated that Cross Road was a trail, just as Tuckertown Road. The Board stated it was not a trail and the voters spoke to this issue in the 2012 vote. The Board stated gates could be erected but they could not be locked. Phil Auger stated that if the gates could not be locked, there was no point in erecting them. Kim Farah asked if both Tuckertown Road and Cross Road were closed at the same time, how was it that Tuckertown was a trail and Cross was not. Vice-chair Giordano stated the discussion was Cross Road and not Tuckertown. Patty stated she would find the Warrant Article that changed the class of Tuckertown. Phil Emilio III clarified that the trash and littering that kept being mentioned on Cross Road was on private property, not the road. Consensus of Frank, Kim, and Phil agreed with this statement. The Board told Frank if he were to erect gates and lock them, he would be violating the law. Vice-chair Giordano stated the 1954 warrant was to close Cross Road, not discontinue it, and Town counsel agreed that Cross Road was a Class VI road, not a private road. He cited the necessary verbiage needed to discontinue a road from “Knowing Your Territory.” Selectman Inman stated she would be happy to review an opinion by Frank’s legal advisor if he would share it with her. Following discussion the Board stated that Cross Road was closed, not discontinued, and the residents spoke at voting time, denying permission to discontinue the road.