The Town of Northwood, New Hampshire

At the home of John and Jean Lane, Chairman Farr called the work session to order at 7:00 p.m. Mr. Farr stated that the purpose of the work session was to discuss and learn more about RSA 674:41 relative to private roads and the role of the ZBA. He explained that this is an information session with no pending business to be conducted.

Present: ZBA members Bruce Farr, Nona Holmes, Tom Lavigne, Bob Bailey, Jean Lane, Board Administrator Linda Smith, Peter Jones representing the Northwood Planning Board, Conservation Commission representative Wini Young, Northwood Building Inspector/Code Enforcement Officer Dave Copeland, Attorney Jed Callen, Steven Whittly, associate to Jed Callen.

Public Present: John Lane, Steve Anthony, Paul Lesnyk, Rick Belanger of the Epsom Zoning Board.

Abutter Mrs. Troy arrived later on in the meeting.

Jed Callen thanked the ZBA members for the opportunity to provide an overview of the process of RSA 674:41. He appreciated the invite and the board’s willingness to learn how to apply the RSA specifically to the Town of Northwood.

Atty. Callen introduced Associate Steven Whittly and explained the outline of his research. A hand out was provided.

Atty. Callen explained that the purpose of RSA 674:41 is that throughout NH there are many types of roads: official state roads, official town roads that are called Class V roads. This means that the town has an obligation to maintain these roads by plowing, sanding, maintenance, etc.

Atty. Callen explained that Class VI roads are the roads that are public roads meaning that the town’s people have the right to traverse them; however, the town does not have the obligation to maintain them. He added that Class VI roads have been discontinued, have never been adopted by the town, and/or maybe are historical roads.

Atty. Callen moved on to address private roads. He explained that private roads are best described as if there had been a subdivision created and the road is owned by the abutters and could also be owned by an association of the subdivision. The association and/or abutters are then responsible for all road maintenance.

Atty. Callen explained that there are liability and safety issues with having homes built on Class VI roads when there is no access; for the owners, residents, and the town. He stated that the state would like to discourage, but not command, towns from granting any building permits on roads that are less dependable for access, for safety reasons, than a Class V highway. Atty. Callen stated that in general the town is better off avoiding allowing any building on these types of Class VI or private roads, if at all possible.

Atty. Callen stated that there are two primary sections that are very important within the state statute. Section I affects the code enforcement officer or the person who grants the building permits as Section I instructs what the issuer is supposed to do and not do. Section II is the zoning board’s area of responsibility being the appeal route. He noted that there are other sections; however, they are very minor and some do not apply to Northwood.

Atty. Callen addressed Section I relative to the building inspector. He stated that no building shall be erected nor any building permit issued UNLESS the “street giving access to the lot upon which the building is proposed to be placed” meaning that the lot must have frontage on this street, RSA 674:41 III, is one of the following:
a. shall have been accepted or opened as, or shall otherwise have received the legal status of, a Class V or better highway prior to that time; or
b. corresponds in its location and lines with any of the following:
1. street shown on official map
2. street on subdivision plat approved by the planning board (PB)
3. street on street plat made by and adopted by planning board
4. street located and accepted by the town meeting, after submission to the planning board and if the PB disapproves, by favorable vote required in RSA 674:40; or
c. is a Class VI highway, or
d. is a private road, provided that ALL of the following are satisfied:
1. board of selectmen (BOS) after review and comment by the PB, has voted to authorize the issuance of the building permits on said Class VI or private road;
2. municipality neither assumes responsibility for maintenance of said Class VI highway or private road, nor liability for any damages resulting from the use thereof; (this is the use of the road, not the occupancy of the house).
3. prior to issuance of building permits, the applicant shall produce evidence that notice of the limits of municipal responsibility and liability has been recorded in the county registry of deeds.
e. is an existing street constructed prior to effective date of this subparagraph and shown on subdivision plat that was approved by the local governing body (BOS) or ZBA before the municipality authorizes the PB to approve/disapprove subdivision plats in accordance with RSA 674:35, if one or more buildings have been erected on other lots on the same street.

A discussion was held regarding the town granting permission for the building inspector to grant building permits through a warrant article. Ms. Smith stated that she does not recall this being addressed at a town meeting. This will be researched. Further discussion was held regarding the town roads map and being adopted as the town’s official map. Ms. Smith states that the roads map was put in pace by a zoning ordinance, and was not adopted as the town’s official map. Atty. Callen referred to RSA 674:10 regarding the town’s official map. He explained that the map would need to have been voted on at a town meeting to be adopted as the official town map. He added that if the map describes a road as being a Class V or better, then the property owner is entitled to a building permit. Further discussion is held on the map created for 911. Ms. Smith stated it is her belief that the 911 map was not addressed on a ballot. She explained that language relative to street addresses was adopted by the selectmen. This matter will be checked into as well.

Atty. Callen explained that as far as the town’s liability; he stated that the town will not be held liable and first responders do not need to be heroes. He added that the town cannot be sued for not maintaining a road and not being able to assist if an emergency occurred, should the road not have been maintained and made passable.

Mr. Copeland asked about accessory structures such as a deck or repairs to the existing structure. Atty. Callen replied that likely the building permit for this would be issued as the structure is already owner occupied, it may make the home safer or more comfortable, and there would not be an increase the safety risk. He did note that the town may still request a liability waiver. The ordinance does not distinguish. Atty. Callen added that as far as going from a seasonal structure to a year round structure, he recommended that there be some more consideration and that the board be more cautious as there are more risk factors involved to the town and the residences with emergency response. Atty. Callen added that he might be a bit more receptive to issuing a permit if the area had a functioning home owner’s association that was really maintaining the roads and all of the lots have adequate access. Atty. Callen explained that a building permit goes with the property and that needs to be remembered in all cases.

Ms. Smith explained that the selectmen have adopted procedures, which do not allow the building inspector to grant the permit in these specific situations but would require someone to go before the selectmen to obtain the permit. Atty. Callen stated that the there is nothing in the statute allowing the selectmen to issue building permits. (Note: later in the evening a discussion is held on the definition of the terms local governing body and local legislative body-Attorney Callen then corrects the previous statement noting that the Board of Selectmen could adopt a policy for the issuance of building permits per RSA 674:41)

Further discussion continued regarding the older camp roads throughout town that were in existence prior to zoning and many also had structures built on them. Atty. Callen stated that the camp roads are probably private roads and added that if there was a plot on file that was approved by the selectmen, with existing buildings, then permits can be issued by the building inspector on the camp roads. He added that the building inspector is not required to issue permits in this case and is not encouraged to do so. Again, he added that the town wants the residents to be able to be reached if there was an emergency and not have access hindered. The intent is not to endanger the public health of the residents of the town.

Bruce Farr asked about the tax base and the impacts. Atty. Callen explained that the courts recognize this as a legitimate factor.

RSA 674:41, II-a: Relief from the Statutory Requirements by Town Vote:
Jed Callen briefly explained that this allows the municipality to except any lot from the requirements of RSA 974:41, I & II. He further explained that this requires the following:
1. approval by the planning board; then
2. affirmative vote of a Town Meeting via RSA 675
• If approved by the PB, the majority vote of those present and voting at regular special town meeting is all that is required
• If NOT approved by the PB, then 2/3 vote of those present and voting at a regular or special town meeting is required.

RSA 674:41, II: Appeals of Denials of Building Permits, Class VI and Private Roads to the ZBA:
Atty. Callen explained that any decision made by an administrative officer that has anything to do with a zoning ordinance must be appealed to the ZBA. He stated that this provision has relief under conditions that are fairly generous and there is really no real name for this other than the fact that it is a process; 674:41, II process.

Atty. Callen explained that the process works when someone is turned down by the selectmen or code enforcement officer for the permit they requested on their Class VI or private road. The applicant feels that they should be issued the permit and thus appears before the ZBA. The appeal or a petition is filed under 674:41, II. He stated that the enforcement of the provisions [of RSA 674:41 relative to access in Class VI or better road > would entail practical difficulty or unnecessary hardship, and when the circumstances do not require the structure to be related to existing or proposed street (hospital, emergency shelter). He explained that there are different types of “hardships”. This notes specifically practical difficulty or unnecessary hardship. He added that practical difficulty is an area that is undefined. Atty. Callen explained that no one would approve a building permit for an emergency shelter or fire station on a road that was not maintained; it would clearly need to be on a town road. So the issue would only be residential.

Atty. Callen stated that the permits can be issued with conditions similar to a variance or special exception if it were to protect the public health, safety, and welfare. He added that the board may approve a seasonal structure and not a year round structure. Atty. Callen continued to state that when the ZBA is considering an application or an appeal [from 674:41 >, the ZBA may make any reasonable exception and shall have the power to authorize or issue a permit, subject to such conditions as it may impose. An example of a condition could be that the road would need to be upgraded and also the need to have an agreement for maintenance/plowing so that the road could be accessed by town emergency vehicles. He added the maintenance agreement would be provided, and that the issuance of the permit or erection of the building would not tend to distort the official map or increase the difficulty of carrying out the master plan, and if issuance of the building permit or erection of the building will not cause a hardship to future purchasers or undue financial impact on the municipality.
• There must be a public hearing on this appeal.
• Any decisions made by the ZBA on appeal must be in writing, including the reasons for the decision, and is subject to review pursuant to RSA 677 (Request for Rehearing, appeal to Superior Court).

Atty. Callen explained examples of items to be considered (among others) could be groundwater recharge areas, wildlife locations, areas protected by the town’s master plan, areas to avoid growth. Ms. Smith stated that in the Master Plan there is an area noted that has a single access that is very narrow. In addition, she stated that the town has identified an area within another town, Town of Deerfield, which the Town of Northwood is unable to do anything to upgrade the access, which leads back into Northwood. The Northwood Master Plan contains language with the intent to try and prevent future development in this particular area. Atty. Callen stated that this is a good example as the town may not want to add more development in an area with unimproved roads in an area where there is already a poor access and where the town would want to discourage further growth. He stated that the way to avoid people moving in to areas that have poor access is to not approve construction way out in the woods without knowing that in time, the area will in turn demand more town services. Atty. Callen added that this would be bad planning.

Additional discussion was held regarding the hardship to future purchasers. Atty. Callen explained that every permit issued on an unmaintained road will have a hardship to a future purchaser as the buyer would not get the same services as their neighbors on Class V and would pay the same in taxes. This would imply undue hardship and these are noted to give an intelligent board the way to look at the various factors and make a discretionary decision that can be supported.

General discussion was held among board members and Atty. Callen as conditions of permits. Pete Jones noted that there is also authority held by the building inspector/code enforcement officer; however, that is only one person versus to the authority of the entire ZBA.

Ms. Smith asked if any permit can be exempted, such as a deck. Atty. Callen replied that yes under the selectmen’s authority on Class VI and private roads, they may decide to make a general ruling regarding decks and then direct the building inspector/code enforcement officer to address and issue the permits.

Ms. Smith asked about right of ways and easements. Atty. Callen replied no and agreed with the planning board’s counsel in that private roads, Class VI roads, and various categories of streets that are better than those or the “official streets”; nothing about granting building permits that are accessed only by rights of way or easements. He referred to case law from 1994, which allowed a building permit that was on 1,100 ft. of right of way that legislature said no to this based on the fact that emergency vehicle access would not be possible. He added that there needs to be frontage on the road.

Ms. Smith asked about building on a right of way and building a 10’ wide road. Atty. Callen stated that a right of way and a private road need to be defined as it can be a tough decision. He said that if the access is just by a right of way, not a public or private road, just an easement across someone land that serves just a specific back lot, then he recommends that nothing can be done. In addition, he further explained that even if the road to be built was going to be 30’ wide and then pave it, the town would then be opening up every land locked back lot in the state to development, which is something that zoning ordinances and planning boards are dead set against. Atty. Callen noted that this is why the frontage requirements were made so that there are no “back flag lots” being created.

Mr. Copeland, building inspector, asked if there would be any reason why RSA 674:41 would be addressed by the planning board. Atty. Callen replied that the PB only reviews and comments, to the selectmen. Further discussion continued regarding the authority of the planning board and the process and town’s policy of RSA 674:41.

In closing, Atty. Callen stated that the more specific the ZBA is with their discussions and votes, the better.

The informational session was adjourned at 9:30 p.m.

Respectfully submitted,

Lisa Fellows-Weaver
Board Secretary

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