Legal Q and A: Building on Private Roads under RSA 674:41: When and How is it Authorized?

It's sometimes referred to as a sort of "state zoning." In any town that has a planning board with subdivision authority, RSA 674:41 prohibits building on any lot unless "the street giving access" is a Class V highway or better; is shown on a subdivision or other plan approved by the planning board; or is a Class VI highway or "private road" upon which the board of selectmen has voted to authorize building permits under certain specified conditions. This statute applies even if (a) zoning frontage standards are less stringent; (b) the lot in question is "grandfathered" from zoning; (c) there is no zoning at all; or (d) there is no building permit process at all. There is also a special appeal process to the Zoning Board of Adjustment (or to the "legislative body" where no ZBA exists). Thus, the officials of virtually all towns and cities should be familiar with the statute and prepared to apply it when the occasion arises. RSA 674:41 poses no problem for lots with Class V highway frontage, but is difficult to apply for Class VI highways, and more difficult still for "private roads."

Q: I understand the statutory definitions of Class V and Class VI highways, but what is a "private road" and what does "the street giving access" mean?

A: "Street giving access" is defined in RSA 674:41, III: "a street or way abutting the lot and upon which the lot has frontage." The definition was enacted in reaction to Belluscio v. Westmoreland, 139 N.H. 55 (1994), in which the court had ruled that an easement for access to backland was sufficient "access" under an earlier version of the statute.

In the 19th century, towns could formally lay out "private ways," Grossman v. Dunbarton, 118 N.H. 519, 521 (1978), but there is currently no definition of "private road." "Street" is broadly defined for the purposes of the land use control statutes and includes ". . . road, lane, alley . . . and other ways." RSA 672:13. There is no bright-line test to distinguish an easement for a driveway to serve a few houses in common from a "private road." Municipalities sometimes adopt local standards for regulatory or E-911 house-numbering purposes. For example, a common "driveway" could be defined as serving not more than two dwellings, while a "private road" serves three or more dwellings. (Private roads in modern subdivisions pose no problem under the statute because lots in approved subdivisions are automatically eligible for building permits under RSA 674:41, I (a) (2).)

Q: What is the process for the selectmen to decide whether to allow building on a private road?

A: The Supreme Court has observed that "[t]he evident purpose of [the frontage] requirement is to insure that a dwelling may be reached by the fire department, police department, and other agencies charged with the responsibility of protecting the public peace, safety and welfare." Sanderson v. Candia, 146 N.H. 598, 600 (2001). Typically, the selectmen consider the width, drainage, grade and other conditions of the road; adequacy of connecting highways; the demands on services such as police, fire, and utilities; and the effect on the vicinity and master plan. The planning board must have an opportunity to review and comment before the decision to authorize such building is made, but the planning board's role is advisory only. If the selectmen decide to grant a building permit, the landowner must first record in the registry of deeds a notice of the municipality's lack of responsibility for maintenance of the road and lack of liability for damages resulting from use of the road. RSA 674:41, I (d). The selectmen can impose additional conditions on a building permit, such as requiring certain improvements to the private road to secure adequate access, and such conditions are enforceable, as with other land use decisions, under RSA 676:15 and :17.

Q: Do the selectmen have to adopt a townwide policy for building permits on private roads, or can they decide on individual applications?

A: The selectmen may adopt policies in advance for the entire town, particular roads, or sections of roads, but the court has held that they are also entitled to grant building permits on a case-by-case basis. Blagbrough Family Realty Trust v. A & T Forest Products, Inc., 155 N.H. 29, 43 (2007).

Q: Does the statute apply to new buildings only, or does it also apply to remodeling, additions or conversions from seasonal to year-round use?

A: There has been no court decision on this issue yet. RSA 674:41, II implies that additions are subject to the statute, as it uses the phrase "building, structure or part thereof . . . " Arguably the purpose of the statute is to regulate expansion or intensification of use that would affect public safety.

Q: Is there anything else for the selectmen to consider in the process?

A: In all applications to build, but especially on private roads, boards of selectmen and building inspectors should be aware of the recent New Hampshire Supreme Court decision in Case No. 2011-085, Atkinson v. Malborn Realty Trust (decided August 17, 2012). The court upheld the authority of the local fire chief, under the state fire code, to require a residential sprinkler system for a single-family dwelling with a long, steep driveway that was inadequate for fire department access. The fire chief's authority was NFPA 1, section 18.2, which is incorporated by reference in the state fire code. The scope of the decision may be clarified in the coming months in light of recent and possible additional legislation on the power of municipalities to require sprinkler systems in one and two-family dwellings.

Q: What is involved in the ZBA appeal process?

A: Under RSA 674:41, II, the Zoning Board of Adjustment may grant an "exception" to build on a Class VI highway or private road. Unlike subsection I © for the selectmen's decision, paragraph II prescribes criteria for ZBA action:

• Enforcement of the frontage standard would "entail practical difficulty or unnecessary hardship."
• The circumstances of the case do not require the building or structure to be related to existing or proposed streets.
• The erection of the building will not tend to distort the official map or increase the difficulty of carrying out the master plan.
• Erection of the building will not cause hardship to future purchasers or undue financial impact on the municipality.

Q. What does "practical difficulty or unnecessary hardship" mean?

A: The Supreme Court is currently considering this issue in the case of Merriam Farm, Inc. v. Surry, No. 2011-311. Cases from other jurisdictions that have construed similar statutory language fall into two categories: some view the terms as interchangeable, while others hold that "practical difficulty" is a less stringent standard than "unnecessary hardship."

Q. Is there a case in which a denial of a building permit by the ZBA was upheld by the court?

A: Yes. Permission can be denied under the appropriate circumstances. In Vachon v. New Durham, 131 N.H. 623 (1989), the plaintiff sought permission to build more than 600 feet from the nearest Class V highway. The ZBA's denial of an "exception" was supported by findings that the road was narrow, ledgy, and swampy and posed a danger to future inhabitants and emergency vehicles and personnel, with the accompanying risk of workers' compensation liability and equipment damage.

Q. Finally, RSA 674:41 applies even when the zoning ordinance does not require frontage on a Class V highway or approved subdivision road. What is the procedure if the zoning ordinance does include a frontage standard?

A: RSA 674:41, III provides that "[t]his section shall supersede any less stringent local ordinance, code or regulation . . . " Therefore, a zoning ordinance frontage standard that is more stringent will be applicable, and the property owner will be required to satisfy both the statute and the ordinance. For example, the statute requires only some frontage on an approved street, while a zoning ordinance may require a minimum of 100 or 200 feet of frontage on an approved street. In that case, RSA 674:41, I would authorize a building permit, but a zoning variance would also be required. As another example, in a case with no frontage on an approved street, the ZBA could be faced with simultaneous applications for (a) an "exception" for "practical difficulty" and the other criteria of RSA 674:41, II and (b) a conventional zoning variance under RSA 674:33.