New Hampshire Municipal Association
New Hampshire Municipal Association

Court Update

Building Permit for Class VI Road Lot Upheld

Blagbrough Family Realty Trust v. A&T Forest Products, Inc. & a.
No. 2005-669, 2/28/2007

This is the third in a series of cases taken to the Supreme Court relating to a dispute between a property owner and the Town of Wilton and between that property owner and the abutting property owner. In the first case, Blagbrough v. Town of Wilton, 145 N.H. 118 (2000), Blagbrough challenged the town’s position that a road and a bridge were private. Blagbrough argued that a bridge and driveway to their property were public ways and should be maintained by the town. The Supreme Court found that although there was evidence that the town treated the driveway and bridge as public at times, Blagbrough failed to demonstrate that the public used the driveway and bridge adversely for 20 years prior to 1968 as required by RSA 229:1.

Last year, in Blagbrough Family Trust v. Town of Wilton, 153 N.H. 234 (2006), the property owners, Blagbrough Family Trust, filed suit when the planning board approved a subdivision for abutting property owned by A&T Forest Products, Inc. In approving the subdivision, the Wilton Planning Board ruled that culverts were not structures within the meaning of the zoning ordinance and thus could be placed within the protected area of the wetlands setback. The town’s zoning ordinance was upheld when the New Hampshire Supreme Court ruled that state law did not preempt the town’s regulation of wetland setback.

In this third case, Blagbrough Family Realty Trust v. A&T Forest Products, Inc., Blagbrough appealed decisions of the trial court on two consolidated cases. One case appealed a decision of the zoning board of adjustment (ZBA) granting a building permit to A&T Forest Products, Inc. (A&T). The second case was a petition to quiet title that included claims by the plaintiff that (1) it had acquired a portion of A&T’s property by adverse possession; (2) that it had certain rights to a canal easement as described in a deed; (3) that it had acquired a portion of a road through adverse possession; and (4) that it was entitled to damages for interference with the well and canal easements that allegedly occurred when A&T removed timber from its own property.

The claims of acquiring title to land through adverse possession and the appeal of the ZBA decision upholding the issuance of a building permit are the portions of this case that are pertinent to towns and cities and will be the focus of this summary.

The Court addressed two claims of title by adverse possession: one of possession of abutting property owned by A&T and one of possession of an abutting road. In the case of the abutting property, Blagbrough argued that the removal of a boat house on the abutting property in 1964 or 1965, using the property for recreation activities such as walking and allowing their children to play on the property, cutting grass and removing trees were activities that are sufficient to support their claim of title by adverse possession. The Court disagreed, pointing out that the law requires more than occasional, trespassory maintenance in order to perfect adverse title; the use must be sufficiently notorious to justify a presumption that the owner was notified of it. In order to obtain title by adverse possession, the adverse possessor must prove, by a balance of probabilities, 20 years of adverse, continuous and uninterrupted use of land claimed so as to give notice to the owner that an adverse claim is being made. Here, the Court found that the act of tearing down the boathouse was a one-time occurrence that took place shortly after the Blagbroughs acquired title. With regard to the other activities on the abutting parcel, the Court found that the activities were not sufficiently notorious or exclusive to satisfy the criteria for adverse possession.

Next, Blagbrough argued that it acquired title by adverse possession to a portion of Old Peterborough Road, which abuts its property to the north. In rejecting this argument, the Court found that the road had been used for public travel since at least the early 1800s. Pursuant to RSA 229:1, a public road could be created by prescription if it had “been used…for public travel…for 20 years prior to January 1, 1968[.]” Thus, Old Peterborough Road was found to be a public highway by prescription. Blagbrough argued that even if Old Peterborough Road was a public highway by prescription, it had been discontinued. The Court reviewed the evidence in support of a claim for discontinuance against the strong presumption against discontinuance and found that the evidence did not compel a finding that Old Peterborough Road was discontinued. Having found the road to be a public highway by prescription, with no compelling evidence that it had ever been discontinued, the Court rejected the claim of adverse possession. The Court pointed out that even if Blagbrough had successfully established the elements of adverse possession, one cannot acquire rights in a public highway by adverse possession pursuant to RSA 236:30.

The selectmen, after review and comment by the planning board and town counsel, issued a building permit to A&T for a home to be built on the north side of Old Peterborough Road, across the street from the Blagbrough property. The selectmen authorized the permit pursuant to RSA 674:41 which allows building on a Class VI or a private road if certain conditions are met, including review and comment by the planning board, acknowledgement that the municipality neither assumes responsibility for the maintenance of the road nor liability for any damages from the use of the road and recording of the notice of acknowledgement at the Registry of Deeds recognizing the limits of municipal responsibility and liability.

In addition to arguing that the ZBA erred when it upheld the issuance of the building permit because the road was not a public highway (a position dispensed with by the Court when the adverse possession claims were denied), Blagbrough argued that the town was wrong when it considered the lot in question to be grandfathered for three reasons: (1) a “lot of record” requires that the lot be recorded in a separate deed; (2) a “lot of record” must be a buildable lot; and (3) a lot with no frontage cannot be considered grandfathered when the ordinance applies to property with less frontage.

The Wilton zoning ordinance provides that “[A] lot of record at the time of the effective date of this ordinance [which] has less area and/or frontage than herein required…may be used for a single family dwelling if permitted in that district[.]” In order to be considered grandfathered, the lot in question had to be a “lot of record” within the meaning of the zoning ordinance. Blagbrough argued that the lot in question was not a “lot of record” and thus a building permit could be issued only if a variance was granted by the ZBA. The Court rejected this argument noting that the zoning ordinance required only that the lot be described separately and, further, that there was no material difference between a lot with no frontage and one that has less frontage according to the zoning ordinance. On this point the Court observed that if the town wished to change the words or terms of its ordinance, it is free to do so.

Finally, Blagbrough argued that RSA 674:41, I(c) does not authorize the selectmen to issue building permits to individual landowners, on a case by case basis, because the statute uses the plural of the words “permits” and “buildings.” Further, that RSA 674:41, II, which allows the building permit applicant to appeal the decision of the administrative officer in charge of issuing the permits the ZBA, requires the applicant to seek a building permit from the ZBA and not from the selectmen. The Court, found no error in the trial court’s finding that the town properly applied RSA 674:41 in authorizing a building permit on a Class VI road.

Please be advised that the foregoing case summary is based upon a Supreme Court slip opinion. Slip opinions are subject to change following motions for rehearing and/or motions for reconsideration. The Court may also modify the opinion without motion. The final version of the Court’s opinion is that which appears in the New Hampshire Reports.

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