By Paul Sanderson, Esq.
For years, municipal attorneys and the attorneys at the New Hampshire Local Government Center (LGC) have advised municipalities to create and maintain files containing information about their local highways. Transportation corridors are important local assets held by the municipality in trust for the benefit of everyone, but they are adjacent to privately owned land and thus questions and disputes about the scope of the public’s rights and the rights of individual landowners are inevitable.
We have been asked to give some specific suggestions about what types of information should be in those files, and why the information is important enough to justify the effort and expense of creating and consistently maintaining these files.
How the Road Was Created
This section of the file should include copies of the source documents that will prove which method was used to create the highway. Each of the four different methods of road creation described in RSA 229:1 has different consequences for the officials charged with management of the road. Depending upon the method used, the records will consist of deeds to the municipality for land upon which the road has been built, records describing layout of the highway by the governing body, records showing dedication of the road to public use and acceptance by the legislative body, or records of showing prescriptive use of the road for a 20-year period prior to 1968.
Determining how a road was created is more than just an interesting exercise in historical research. For example, if a tree must be removed, the duties to the abutters are completely different in prescriptive right of way than in fee owned right of way. If the municipality takes ownership of the land on which the road is built in fee simple absolute by accepting a deed, the municipality owns all of the trees in the right of way, and can remove the trees at will. However, if the road was created by prescription, the abutting landowners are presumed to own the underlying land, as well as the trees in the right of way. The abutters have rights to notice about removal of the tree, may object to its removal, and actually own the wood of the tree if it is cut.
Once a road is created, a name is assigned. The municipality does have control over the name, in order to assure that the name does not result in confusion for police and fire first responders, emergency management planners, or the administration of the emergency 911 program.
Municipalities have a perpetual duty to maintain a Class V highway, but have no duty to maintain a Class VI roadway. State highway aid is given for Class V highways, while none is available for the Class VI road. Development on Class V highways is allowed by RSA 674:41, but may not be allowed on a Class VI highway in the same municipality. Some Class V highways were created as Class II state highways, and have been reclassified by the legislature as municipal highways.
The Road as an Asset
The Government Accounting Standards Board (GASB) has published a standard called “GASB 34" that describes how all governments must report the value of their highways on their annual financial statements. The file on each road should contain information about the costs incurred to create the highway, to acquire the property interests involved, to build improvements, to maintain the improvements, as well as a schedule of how the improvements will be depreciated. The goal is to report to all users of the financial statements a more accurate and realistic value of the highways, as well as the age and condition of the improvements.
Special Characteristics of the Road
This section includes records for special events such as designation of the road as a scenic highway, or designation of the road as a Class V road to summer cottages. There may be property interests that do not relate to ownership of the highway, such as deeds creating drainage easements, slope easements, or construction easements. Any legislative body action taken affecting the status of some or all of the road, such as changing its classification between Class V or Class VI, or discontinuing a portion of the road from Class V to Class VI subject to gates and bars, would be recorded in this section.
Regulating Use of the Road
The legislative body has relatively few powers in this area, but may create ordinances regulating snow removal or noise. The governing body has many responsibilities including, but not limited to, action to permit use of some or all of the road by Off-Highway Recreational Vehicles (OHRVs) as allowed by RSA 215-A; setting speed limits in accordance with RSA 265:60; regulating parking of cars; granting permanent licenses or temporary permits for installation of telephone, electric, or gas utility structures, poles, or conduits; installing traffic control devices, signs, and pavement markings; regulating excavations or trenching in the right of way for utility or drainage purposes; and regulating the weight of vehicles either permanently or seasonally.
The governing body will work together with the planning board to regulate driveway and other access points pursuant to RSA 236:13, and special access concerns for temporary but intensive uses such as forestry operations and gravel excavations under RSA 155-E. Many of these regulatory actions or permits are permanent in nature, and they affect the rights and duties of the current abutting landowners, as well as new owners into the future.
Maintaining the Road
As noted above, the municipality has the duty to maintain its highways in perpetuity. The road file should contain the records of pavement maintenance and renewal, pavement marking renewal, and regulatory sign inventories, with a schedule for replacement of the signs.
If there have been reports of insufficiencies, the file would contain the report of the problem, the steps taken to warn the public of the defect and the steps taken to repair the defect. This is true for defects occurring during the summer, as well as those arising in the course of a winter storm. These records, with times and dates of response, are critical to the ability of the municipality to defend itself against a claim of personal injury under the insufficiency law, RSA 231:90-92-a. Without proof of when the report was received, and the steps taken in response to the report, it may be impossible to claim the immunity to liability allowed by the statute.
State and federal environmental laws are applicable to the maintenance and operation of municipal highways. To the extent that wetlands permits or other permits have been sought and granted under state environmental programs, documentation of those applications, permits, complaints, or reports of inspection or corrective action should be maintained.
Under federal law, the surface water runoff of highways may be regulated by the National Pollutant Discharge Elimination System, Phase II (NPDES Phase II) regulations of the United States Environmental Protection Agency (U.S. EPA). There are several different requirements of this program, and not all requirements are applicable to every municipality. Records of stormwater management programs, efforts to eliminate illicit discharges, efforts to map stormwater drainage systems, records of construction activity, and records relating to industrial facilities should be maintained. These would include stormwater pollution prevention plans, stormwater management plans, notices of intent to comply with U.S. EPA general permits and notices of termination of covered activities.
Transportation Planning and the Link to Land Use
There certainly is a great deal of information that is created with respect to municipal highways. The information is used on a daily basis in order to resolve current questions and disputes, and avoid liability for injuries to persons or property that may occur to users of the road. The information is also valuable for the future.
One of the Planning Board’s primary duties is the creation of the Master Plan for the municipality. The transportation chapter of the plan details how people and goods will be moved, and helps to determine how different tracts of land in different parts of the municipality ought to be used when applications for subdivision or site review are presented to the Board for adjudication. The Planning Board will also use this information in meeting another of its primary duties, the creation of the Capital Improvement Plan, or “CIP." Highway projects are expensive, and highways are capital assets, so significant highway construction or improvement projects are included in this plan, which serves as a capital budget recommendation to the legislative body of the community.
Another use of this information is to avoid liability for injuries which have not yet occurred. As new highways or improvements to existing highways are designed, there may be differences of opinion as to whether one design is safer or more appropriate than another. The road file should contain a history of motor vehicle crashes in the area as the “raw material" that engineers will use to recommend a design. Governing bodies and the public will evaluate these recommendations and make decisions as to how these areas should be constructed. The road file should document the alternatives considered to support the defense of discretionary decision immunity against future claims of negligent design of the highway.
There is not enough space in this short article to fully discuss any of these topics. For more information, please consult your municipal attorney, the legal services attorneys at LGC, or review the appropriate chapter in LGC’s A Hard Road to Travel publication. More information about the link between highways and land use is available from your municipal engineer, the regional planning commissions, and the State of New Hampshire Office of Energy and Planning. More information regarding the history of roads, the profession of land surveying, and how to locate the source documentation for old roads, is available from the New Hampshire Board of Licensure for Land Surveyors, found at www.state.nh.us/jtboard/ls.htm.
Paul Sanderson is a Staff Attorney with the New Hampshire Local Government Center’s Legal Services and Government Affairs Department.< Back to Town And City Home