Closing of Cross Road

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Closing of Cross Road

Postby curt » Sat Jun 11, 2011 9:18 pm

Cross Road is a dirt road that runs between Beach Plain Road and Back Road.

The Southeast Land Trust of NH (SELTNH) has purchased the land on the east side of the road, running into Kingston, and they want to gate access from all wheeled vehicles.

There are a number of issues. It appears that we have another Blake Road situation in that a building permit was issued in the belief that it was a class VI unmaintained town road, when it actually turns out that it is a discontinued road.

You can watch the discussion at the 6/6 BOS meeting, starting at 46:50.

I think "closed to public travel" is the same as "discontinued."
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Re: Closing of Cross Road

Postby curt » Sat Jun 11, 2011 10:10 pm

From the NHLGC publication "Knowing the Territory"
V. Discontinuance of Highways
A. How to Discontinue a Highway
A Class IV, V or VI highway remains a public highway unless and until it has been formally
completely discontinued by vote of the town. Marrone v. Hampton, 123 N.H. 729 (1983). The
procedure is set forth in RSA 231:43 through 231:50. The warrant article can be created by
the selectmen or received as a result of a citizen petition pursuant to RSA 39:3. When drafting
a warrant article or resolution for discontinuance, use the words “completely discontinue,”
as opposed to words such as “abandon” or “give up,” to be sure that the intent of the vote is
clear. If the intent is not clear, the law presumes that the vote was intended to create a Class
VI highway, since there is a strong public policy favoring the continuation of public highways.
Written notice must be given to all owners of land abutting the highway at least 14 days prior
to the vote of the town, although it is not clear if the town has the duty to provide the notice
if the warrant article was submitted by petition.
A highway is not discontinued if the public merely abandons its right of travel. Gill v. Gerrato,
154 N.H. 36 (2006).
B. What Is the Effect of Discontinuance?
Discontinuance completely extinguishes the public right of travel. It is not possible to
discontinue a highway, but reserve a right to open it again later. If the road must be recreated
in the future, one of the methods of creation allowed by RSA 229:1 must be used. RSA 231:45
allows a municipality to use a warrant article to change the classification of a road from Class
V to Class VI by making the road “subject to gates and bars.” The effect of this action is to
extinguish the duty to maintain the road, but the highway remains in existence and open to
public use.
C. Who Owns the Land Under the Road After Discontinuance?
If the highway was created in the form of a viatic easement, the right to possess the land reverts
to the abutters, each of whom is presumed to own to the center line, absent evidence to the
contrary. If the municipality owns the land under the highway in fee, the land remains in
municipal ownership and is available for other uses.
D. Are All Rights Extinguished by Discontinuance?
No. Pursuant to RSA 231:43, any owner whose land is otherwise inaccessible retains an
easement over the land to access his or her property, but must use the easement at his or her
own risk. This easement can be extinguished by a deed from the owner of the right that is
recorded at the Registry of Deeds. Pursuant to RSA 231:46, existing utilities may remain in
their former location unless the vote of discontinuance requires them to be removed. There
also can be additional grounds for claiming private access rights, such as the sale of lots with
reference to a plat showing the road.


Earlier, I wrote:I think "closed to public travel" is the same as "discontinued."


The manual wrote:A highway is not discontinued if the public merely abandons its right of travel. Gill v. Gerrato,
154 N.H. 36 (2006).


I think this means that the road is not discontinued just because the public stops using it, not in the context of a town vote.

Something else that came up:

Knowing the Territory wrote:A. Prescription
At common law, a highway was created when land was used by the public for travel for 20
consecutive years or more without the permission of the landowner. The legislature changed
this rule in 1968, such that public travel can no longer serve as the basis for creating a new
highway. Many highways in the state were created by prescription and remain public highways
unless they are discontinued by a vote of the legislative body. Private landowners cannot obtain
property rights against the public through prescription. RSA 236:30. It is still possible to create
easements over privately owned land by prescription for drainage and other purposes.
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Re: Closing of Cross Road

Postby timd » Sun Jun 12, 2011 9:24 am

Well, Cross Road is a town road created by prescription since there is ample proof of its use for more than 20 years prior to 1968.
It's shown on the 1956, 1935, and 1893 topographic maps covering Danville at

http://docs.unh.edu/nhtopos/nhtopos.htm

Was there ever a town meeting vote to discontinue it?
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Re: Closing of Cross Road

Postby curt » Sun Jun 12, 2011 9:33 am

Yes, there was a town meeting vote in 1954 to "close the road to public travel". The word "discontinue" was not used. The question on the table was whether "close to public travel" meant "discontinue."

I mentioned the 20 year thing because somebody suggested that even if the road were discontinued by the 1954 town meeting vote, it could have been reopened by prescription based on public use between 1954 and 2011. But the legislature ended that as of 1968.
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Re: Closing of Cross Road

Postby timd » Sun Jun 12, 2011 9:52 am

Well, as you know from reading Hard Road to Travel, there is a presumption against discontinuance in the law. If I were the lawyer for someone holding a building permit on back land off Cross Road and I saw that the town meeting vote said "close" instead of "discontinue", I would be feeling optimistic.

Of course there is still RSA 674:41 to protect the town against scattered and premature development. The planning board, selectmen, and zoning board can just say no. And any building permit issued since the early 80's without the 674:41 waiver in place is not legal.

Did the town ever do any maintenance whatsoever on Cross Road after 1954? Even clearing the ROW? Maintenance is why Windham lost Catalano v. Windham.
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Re: Closing of Cross Road

Postby curt » Sun Jun 12, 2011 2:24 pm

I don't believe that the road has been maintained, at least not in the last 30 years. I don't believe that there is any desire to build a house beyond the one that probably should not have been allowed 10 years ago. It's a short road and SELTNH owns all the property on the eastern side. There are only two other landowners and apparently they are OK with a discontinued status. My **guess** is that they own lots at the NW and SW corners with frontage also on class 5 town roads.

Another guess is that the road came into being to connect Beach Plain Rd to Brentwood Rd, just a short jog from the northern end of Cross Road. Brentwood Rd was class 6 and nearly impassable to regular cars until a developer upgraded it to town standards and the town resumed maintenance.

I mentioned at the meeting that SELTNH holds conservation easements on my woodlots.
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Re: Closing of Cross Road

Postby AlfredTwo » Sun Jun 12, 2011 9:06 pm

Can the town vote at next town meeting to close the road using what ever the current correct language is or is there likely to be some issue with that? Assume the abutors are all ok with it.
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Re: Closing of Cross Road

Postby curt » Sun Jun 12, 2011 9:15 pm

The town could vote in March 2012. I don't know but perhaps SELTNH does not want to wait that long. If they don't think that the town agrees that the road is discontinued, they will spend more $$ to put up multiple gates at entry points to their property from Cross Road, instead of two gates, one at each end of Cross Road.

One option would be to hold a special town meeting before March with the expenses to be paid by SELTNH, not sure if that would be more or less expensive than just putting up more than two gates.
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Re: Closing of Cross Road

Postby AlfredTwo » Sun Jun 12, 2011 9:21 pm

Sometimes this once a year town meeting is a real pain in the neck. :-)
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Re: Closing of Cross Road

Postby curt » Mon Jun 13, 2011 8:12 pm

It was mentioned at tonight's BOS meeting that the board had received a letter from Peter Loughlin (town counsel) stating that in his opinion "close to public travel" did not constitute "discontinue", which I think means that in his opinion it is Class VI.
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Re: Closing of Cross Road

Postby safety frog » Tue Jun 14, 2011 9:26 pm

That is some funny legalize, wish they could use language that was clear to understand.
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Re: Closing of Cross Road

Postby AlfredTwo » Wed Jun 15, 2011 6:54 am

safety frog wrote:That is some funny legalize, wish they could use language that was clear to understand.


Lawyers make their living arguing over words and since so many people in so many legislatures are lawyers laws get written in interesting ways. :-)
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Re: Closing of Cross Road

Postby curt » Wed Jun 15, 2011 8:37 am

The 6/6/11 BOS minutes wrote: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.
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Re: Closing of Cross Road

Postby timd » Wed Jun 15, 2011 10:12 am

The problem here is that if it is a class 6 road SELTNH can put up gates and bars but they cannot put locks on the gates or exclude vehicular traffic. The only thing that extinguishes the viatic ROW is total discontinuance or conversion to a municipal trail. That will require a TM warrant article. If SELTNH has any plans to do forestry operations on their parcel, a Class A trail would be better than discontinuance.
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Re: Closing of Cross Road

Postby curt » Sun Aug 07, 2011 1:55 pm

The BOS minutes of 7/11/11 wrote: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.
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