Vegetation Clearance and the Insufficiency Law: What's the Municipal Responsibility?

By Paul G. Sanderson, Esq.

Q. Must a municipality clear vegetation from a town or city highway right of way if the vegetation obstructs a motorist’s view of a “stop” sign installed by the State of New Hampshire at the intersection of a state and town highway?

A. The short answer to the question is “Yes”, because the obstruction of a regulatory sign probably creates an “insufficiency” as the term is defined in RSA 231:90, II (b). The obstruction of the sign creates “… a safety hazard which is not reasonably discoverable… by a person traveling upon the highway in obedience to all posted regulations and in a manner which is reasonable and prudent as determined by …prevailing visibility…”. If the motorist is unfamiliar with the town highway, an obstructed sign has the same effect as having no sign at all. The driver will probably not stop at the intersection, and will unsafely enter on to the state highway, with potentially tragic consequences. Pursuant to RSA 231:91, upon receipt of notice of an insufficiency, a municipality must act to correct the situation in order to avoid liability for damages that might occur. If a report is received that a regulatory sign is obstructed, action should be taken to clear the obstruction as soon as possible.

Q. But if the state installed the “stop” sign, why isn’t this vegetation clearance a state responsibility?

A. The state Department of Transportation installs regulatory signs at the intersections of town and state highways because RSA 236:1, II grants this authority to the Commissioner of Transportation. The maintenance of the road itself and its associated right of way is a responsibility assigned to the municipality by RSA 231:90 and RSA 231:3.

Q. Does the municipality have this same responsibility for all signs that are located within the right of way of town roads?

A. No. Not all signs physically located within the right of way are accorded the same protection, because the signs have different functions. A federal regulation found at Title 23 Code of Federal Regulations, Section 655.603 adopts a document called the “Manual on Uniform Traffic Control Devices” (MUTCD) as the national standard for designing, applying and planning traffic control devices. The “MUTCD” can be found on the Web site of the federal Department of Transportation at www.fhwa.dot.gov. The signs that are found in the manual are “traffic control devices”, and they are as much a part of the highway as the pavement and the markings on the pavement.

If a sign gives notice of a traffic law or a regulation, it is a “regulatory” sign. An example of this sign type is the octagonal red “stop” sign. If the sign warns a traveler of a situation that is not readily apparent, it is a “warning” sign. An example of this sign type is the diamond shaped yellow curve sign. If the sign provides information about a route or a destination, it is a “guide” sign. An example of this sign type is a rectangular green route designation sign. Obstruction of any of these signs by vegetation might give rise to an insufficiency that must be corrected in order to avoid liability for damages.

If the sign is not described in the manual, it is not a traffic control device. Thus, all outdoor advertising signs, signs that welcome the traveler to a municipality, real estate signs, and the like are entitled to no protection at all. Obstruction of these signs by vegetation is not an issue that a municipality is bound to correct.

Q. Can the municipality just cut away and dispose of any and all vegetation that obstructs signs that are traffic control devices?

A. Not in all cases. If the municipality owns the right of way in fee, it also owns the trees on the land, and can control clearance of the associated vegetation. This would be the case on residential subdivision roads that have been created fairly recently. However, there are many locations where the highway is actually an easement over the land, and the abutting landowners own the trees that are causing the problem. These highways, often called “prescriptive right of way” since the road was created by a legal process known as prescription, will often be the oldest and most heavily used
municipal highways.

If the landowner owns the tree in question, the statutes contain several procedures that local officials may use to resolve the problem. These are found in RSA 231 between sections 139 and 156. The procedure to be used in a particular case depends upon the facts applicable to that particular situation, and whether or not the municipality has a tree warden. Unless there is an imminent threat to safety or property, all of the procedures require that the landowner be notified of the proposed cutting, and be given an opportunity to contest the action. If the tree is cut, the wood taken must be offered back to the landowner, since it remains his or her property.

For more information on trees in the municipal right of way, please consult LGC’s publication, A Hard Road to Travel, New Hampshire Law of Local Highways, Streets and Trails, which contains a complete description of the available statutory processes in Chapter 1. If you have a specific factual situation and need advice, you may call LGC’s legal services and government affairs department to speak with a legal services attorney or contact us by e-mail.