Select Board Decision Denying Reclassification of a Class VI Road as Class V Vacated and Remanded due to Improper Consideration of the Impact of a Residential Project

William Evans, Trustee v. Town of Pembroke
Housing Appeals Board Case No. BSA-2021-02
Wednesday, June 30, 2021

William Evans, Trustee (Applicant) sought approval from the Pembroke Select Board to reclassify a Class VI Road as Class V to facilitate the residential development of Applicant’s abutting, 45-acre property.  From 2019 to 2021 the Select Board reviewed and discussed the road reclassification, eventually denying the request on a 2-2 vote.

The Applicant appealed the denial of the road reclassification to the Housing Appeals Board (HAB).  After reviewing the certified record, the HAB concluded that because a select board member who voted against the reclassification had weighed the impact of the proposed residential project contrary to the NH Supreme Court decision in Green Crow Corp. v. Town of New Ipswich, 157 N.H. 344 (2008) that this warranted vacating the Board’s decision and remanding the matter back to the Board for a new hearing and decision.

In Green Crow the Court made clear that the legislature did not intend for a select board to use its authority to determine occasion for the layout or upgrade of a highway under RSA 231:8 as a vehicle for effectively conducting land use planning or zoning. Thus, a select board could not consider the anticipated impact associated with the development that might result from the upgrade of a road. Since that was what the HAB determined the Pembroke Select Board had done, the decision denying the reclassification was vacated and the Select Board was ordered to conduct a public hearing within 45 days in order to determine:

  • The road length being considered for reclassification to ensure clear application of the “occasion” criteria; and
  • the review of the occasion factors consistent with Green Crow which factors cannot include consideration of the proposed residential project.


Additional Information: 

Practice Pointer:  This decision demonstrates that the HAB can exercise jurisdiction over a highway reclassification determination by a select board where that determination is a municipal permit “applicable to housing and housing developments.”  RSA 679:5, I (g). Select Board’s must also take note that when it is asked to reclassify a road from Class VI to Class V, it is not appropriate to consider the anticipated impact associated with the development that might result from the upgrade of a road.