2010-719 Russell Forest Management, LLC v. Town of Henniker

Lane & Bentley, P.C.

No. 2010-719

Merrimack

the order of the Superior Court (McNamara DALIANIS, C.J. The plaintiff, Russell Forest Management, LLC, appeals

Upton & Hatfield, LLP

by a Town vote. We affirm. that a public highway did not become a private road after it was discontinued zoning board of adjustment (ZBA) of the defendant, Town of Henniker (Town),

orally), for the defendant.

orally), for the plaintiff.

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 to press. Errors may be reported by E-mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as subparagraphs (a) – (e), one of which is that the street giving access to the lot

p. 2 III, as cited by our town counsel in previous correspondence.” See the board of selectmen rejected it based upon “the provisions of RSA 674:41, Following a public hearing on the plaintiff’s building permit application,

proposed to be placed” meets one of the requirements enumerated in

Our review in zoning cases is limited. Harrington v. Town of Warner “unless the street giving access to the lot upon which such building is Pursuant to RSA 674:41, I, a building permit shall not be issued

for a building permit to construct a single-family home. 2009, Cersosimo sold the property to the plaintiff, which applied to the Town Hanson sold the property to Cersosimo Industries, Inc., in 2008. In

this appeal followed. only by private easement.” The superior court upheld the ZBA’s decision, and at 77. Selectmen’s decision because this lot has no road frontage and is accessible evidence does not support it or it is legally erroneous. Harrington decision. In doing so, the ZBA stated that it “found no error in the, 152 N.H. 677:6 (2008). We will uphold the superior court’s decision unless the The plaintiff appealed to the ZBA, which upheld the selectmen’s the evidence before it that the ZBA decision is unreasonable. Id.; see RSA errors of law, unless the court is persuaded by a balance of probabilities on lawful and reasonable and will not be set aside by the superior court absent property.” 152 N.H. 74, 77 (2005). Factual findings of the ZBA are deemed prima facie his property” and a “prescriptive easement over Bowers Road to access his, court concluded that Hanson had a “right of way in [Bowers Road] to access brought suit in superior court seeking clarification of his rights. The trial disputed Hanson’s use of Bowers Road to access the property, Hanson only access to the property. Because the neighboring property owners in 2002. Bowers Road, which runs over a neighboring property, provides the Timothy Hanson purchased a parcel of land (the property) in Henniker

of-way.” See RSA 674:41, I (2008). highway. [The plaintiff’s] property does not have frontage, but rather a right- 674:41, I(a)-(e)]. Rather, it is a private right-of-way accessing a Class VI [highway] does not satisfy any of the enumerated criteria as set forth in [RSA 674:41, III (2008). The letter from Town counsel stated: “The discontinued

the Town voted to discontinue Bowers Road. originally laid out as a public highway in 1797. At a Town meeting in 1895, The record reveals the following facts. Bowers Road in Henniker was access to a lot” only if it meets one of the criteria set forth in RSA 674:41, I(a) p. 3 deciding that it is correct. However, an easement qualifies as a “street giving easement over Bowers Road is not before us on appeal, we assume without Because the trial court’s determination that the plaintiff has an

Id 3

to the statute in effect in Grossman 1895 when the Town voted to discontinue Bowers Road. GL 71:1 is identical The instant case is governed by GL 71:1 (1878), which was in effect in

cannot conclude that Bowers Road is a private road. highway where previously discontinued highway was located). Therefore, we public highway may petition selectmen to layout, subject to bars and gates, a discontinued status, see RSA 231:22 (2009) (owner with no access to land by and there is no evidence in the record of a later attempt to change its Road shall be a Private way and so designated. could not have made Bowers Road a private road when it was discontinued, only to totally discontinue Bowers Road, a public highway. See id. The Town

We observed that at the time the road in Grossman discontinued the highway.” Id. Grossman v. Town of Dunbarton fully discontinued highway [was] ineffective, and the town’s vote totally that the town’s attempt to convert the highway into anything other than “a discontinued highway. Grossman, 118 N.H. at 521. Accordingly, we held change the status of an open public highway to anything other than a totally . . . .” GS 65:1 (1867). There was no provision in GS chapter 65 for a town to same privileges and conveniences as heretofore and that said 1876 stated: “Highways in a town may be discontinued by vote of the town the owners of land on said line of Road shall be entitled to the discontinuing a highway were not as extensive.” Id Benjamin Perley’s be discontinued as a Public Highway but that. The applicable statute in ways subject to gates and bars; however, “[t]he alternatives a town had in Voted. That the Road leading from near William N. Fuller’s to towns had the authority to lay out public highways, private ways and private

convert the discontinued highway into a private way. Id. at 522. . (quotation omitted). We concluded, however, that the town’s vote did not

highway. Id. at 520-21. The vote was recorded as: case. In Grossman, a town voted in 1876 to discontinue a portion of a public

Accordingly, we need not consider the other subparagraphs. asserts only that the discontinued highway in this case is a “private road.” allows buildings to be built on such roads. RSA 67 p. 4 4:41, I(d). The plaintiff is a “private road,” provided that, as in this case, the local governing body 4

Affirmed

DUGGAN, HICKS, CONBOY and LYNN, JJ., concurred.

building permit application. we affirm the trial court’s decision upholding the ZBA’s denial of the plaintiff’s denied the building permit application. See RSA 67 p. 4 4:41, I, III. Accordingly, that any other provision of the statute applies; therefore, the ZBA lawfully not meet the requirements of RSA 674:41, I(d). The plaintiff does not argue – (e). See RSA 674:41, III. Because Bowers Road is not a private road, it does