ROAD LAW GUIDE
Auxiliary Service Roads
Bridges
Class VI Roads
Conveyance
Dedication and Acceptance
Definitions
Discontinuance
Discontinued State Highways
Emergency Lane Designation
Failure to Maintain a Class V Road for Five Successive Years
Gates and Bars
Highways to Summer Cottages
How Public Roads are Created
Layout
Legislative Body vs. Governing Body
Municipal Trail Designation
Off Highway Recreation Vehicles
Prescription
Private Roads
RSA 674:41 (Building Permits)
Scenic Roads
Snowmobiles
Types of Roads and Other Designations
Who Owns the Road?
Alfano Law Office Database of Municipal Road Records
Layout
Note: In this section, the term “highway” will be used rather than “road” or “public road” so the narrative matches the wording used in the applicable statutes, which begin at RSA 231:1.
In “laying out” a highway, a municipality formally plans its location. A layout is a form of eminent domain, and includes the power to convert private roads already in existence into highways. A highway already established by being laid out may be widened by a new lay out, by dedication and acceptance or by prescription.
Procedure
The governing body may lay out a highway only upon petition. A purported highway laid out without a petition is invalid. The petition must state a public need for the highway. Individuals, as well as municipalities, may authorize a laying out petition.
The governing body must give the petitioner and each owner of land over which the proposed highway may pass at least thirty days prior notice of a public hearing to address the petition, although no hearing need be held if the governing body “are clearly of the opinion that such petition ought not to be granted.” An aggrieved petitioner may appeal to the Superior Court at this point.
The governing body has great latitude in determining the final location of the highway, and a petition need not contain intermediate courses and endpoints. If the petition contains intermediate courses, the governing body may disregard them. A highway need not be laid out as a straight line where the petition merely describes the proposed highway as running between two points. Likewise, a laid-out highway which fails to terminate at the point specified in the petition may still be valid. The highway as laid-out need only be “substantially in conformity” with the petition.
Damages
If the governing body approve the proposed lay out, they must assess the damages sustained by each owner of land or other property taken for the road. The New Hampshire constitution requires any property taken by eminent domain be applied “to public uses.” Taking property for roads using the laying out process is a form of eminent domain; however, even if the proposed road will particularly benefit a private business, such as a supermarket, “whenever property is taken for a highway, it is for the public use, notwithstanding that the highway may greatly benefit a private party.” No compensation is required where a road has already been dedicated to public use, such as by being shown on a recorded plan or by being referenced in deeds.
The municipality may not use any property taken for a highway until it has tendered all damage payments. A road actually constructed on courses other than those described in the return is not a legal highway.
The return
A “return” on file in the municipality’s clerk’s office represents the key record evidencing the existence of a laid out highway. No taking of land can occur without the return; therefore, no laying out of a highway can occur without the return.
Conditional layouts
The governing body may receive petitions to conditionally lay out highways. This option only applies to Class VI and private roads, and means the municipality lays out the highway, presumably as a Class V, conditioned on the abutters paying the cost. The cost is assessed through the mechanism set forth in the applicable statutes: “The cost of constructing, reconstructing or repairing such highways, streets, roads or traveled ways shall be assessed by the governing body against the owners of property abutting or served by such facilities in an amount not exceeding the entire cost of constructing, reconstructing or repairing the same, and the amount so assessed upon each such owner shall be reasonable and proportional to the benefits accruing to the land served. Said assessments may be payable in one year or payment may be prorated over a period not to exceed 10 years, in the discretion of the appropriate governing board. All such assessments thus made shall be valid and binding upon the owners of land so abutting or served by these betterments.” Once the work is completed, the municipality is responsible for maintaining the highway from then on, without further assessment against the abutters.
“Occasion” – generally
With one exception, the governing body may lay out a highway only if there is “occasion” for doing so. Any owner with no access to his land by public highway may petition the governing body to layout, subject to gates and bars, a highway located where a previously discontinued highway was located. If no one files a written objection within sixty days of the posting and mailing of the notice of layout, the highway shall be laid out in the location in which it previously existed if the governing body find that the petitioner in fact has no other access to his land by public highway. If someone does object, then the usual procedures for laying out a highway must be followed, including, most significantly, a finding of occasion.
A property owner requesting permission from the governing body to upgrade and reclassify an existing Class VI or private road to Class V under RSA 231:28 must show occasion exists for the layout.
Determining whether occasion exists is a two-step process. The first step is to balance the public interest in the layout against the rights of the affected landowner. If the rights of the affected landowner outweigh the public interest in the layout, the layout is not justified and there is no occasion for it. If, however, the public interest justifies the taking of the land without the landowner’s consent, the second step is to balance the public interest in the layout against the burden it imposes upon the municipality. If the balancing required by the second step favors the public interest, occasion for the layout exists.
“Occasion” – some specific factors
Some factors courts may consider are the following:
Prong #1 – public interest
The number of houses on the road.
How often the road is used.
The effect of improving the road would have on convenience of travel or easing of existing traffic flow.
The integration of the new road within an existing road system.
Ease of existing traffic flow.
Improvement to convenience of travel.
Facilitation of transportation for existing school children.
Improved accessibility to business district and employment centers.
Improved accessibility for fire, emergency and police services.
Effect on town tax base or benefit to year-round residents.
Anticipated frequency of road use.
Keeping large commercial development in a particular section of town.
The inability to develop the particular parcel for high-traffic retail use absent the layout.
Prong #2: burden on the municipality
(Some of these overlap with the “public interest” prong.”)
The added expense of maintenance.
The anticipated increase on the burden on the school system. For example, a commercial development may have a smaller impact on schools than a residential development.
Keeping large commercial development in a particular section of town.
The inability to develop the particular parcel for high-traffic retail use absent the layout.
Layouts with conditions
In some circumstances, conditions attached to an otherwise valid layout may be stripped from the return, and in some extreme circumstance, the entire layout may be voided.