LEGAL Q&A: Current Hot Topics Regarding Road Issues

The information contained in this article is not intended as legal advice and may no longer be accurate due to changes in the law. Consult NHMA's legal services or your municipal attorney.

For this issue’s edition of Legal Q&A, we will be focusing on some common questions relating to local road issues. Our legal services team here at NHMA answer a variety of legal questions involving many different issues, however from time to time we notice trends in certain topics popping up more often than others. Maybe it is the fact that the summer months tend to be the time when municipalities engage in the majority of their road maintenance, or perhaps it is the thought of the fast-approaching cold weather that has everyone’s mind turning to road conditions and regulation. Whatever the reason, we have decided to present you with some of our more common/interesting road law inquiries and answers in the hopes that the explanations associated with these questions may help with some of the concerns you are currently dealing with or may soon be dealing with in the near future.

Q:  We have some road construction going on in our town. Recently there has been a few issues with drivers interfering with flaggers and questions about what types of signs we can post around the construction area. Are there any relevant RSA’s we can refer to that will help with these issues?

A:  RSA 265:3-b is the statute that directly addresses the authority of flaggers on the road. This statute provides flaggers with the authority to direct, control or regulate traffic within any construct ion, maintenance or utility work area and states that their direction shall be obeyed. Any violation of this statute constitutes a violation level offense and is punishable by a fine of $100 for the first offense and $250 for any subsequent offense.

RSA 265:6-a also deals with construction zone issues. This statute requires vehicles to yield the right-of-way to any authorized vehicle or person working on a highway within a construction zone. This statute also imposes fines on any individual who fails to abide by the provisions of the statute.

The select board has inherent authority over the roads in town and that includes posting signage around construction sites. All posted traffic signs enjoy a presumption of legality under RSA 236:5 and RSA 265:9, III. In addition, when the select board adopts a policy under RSA 41:11, the statute holds that a violation of one of those policies constitutes a violation level offense which can be punished with prosecution and a fine. Finally, the town could also enact an administrative enforcement procedure for violations of these policies under RSA 31:39-c and d. Using these statutes, you should be able to establish any policies the town deems necessary to protect road construction and be able to enforce them.

Q:  I am looking for some clarification over how to handle situation(s) on rights of way vs town owned roads. In the instance of a town owned road, do we fully own the trees/brush growing in/on it? As a follow up to that, is the legal definition of a tree “growth with a circumference of greater than 15 at 4ft off the ground” and anything under that measurement would be considered brush?

A:  The first thing that you must determine is who actually owns the soil underneath the road. This is determined by looking back to how to road was originally created. In most instances, the town only has an easement over the land permitting public use of that easement for  “viatic” purposes.  . This  is commonly referred to as a “right-of-way” where  the town does not actually own the land beneath the roadway. There are many ways in which a road can be created where ownership of the underlying land was not deeded to the town and instead remains the property of a private landowner, but the town was granted an easement which includes the public’s right to viatic use of the right of way. In order to know who owns the trees growing along a stretch of road, you will need to research how the road was created to see if the town was deeded ownership of the actual land, or just given easement rights. 

RSA 231:158 defines a tree as any woody plant which has a circumference of 15 inches or more at a point 4 feet from the ground. Anything that doesn’t satisfy these measurements is not “legally” considered a tree for the purposes of the statutes that confers protection for trees the cannot be removed without permission of the abutting property owner, . .

Q:  A long time ago a subdivision was approved with the roads built by the developer and deeded to the town. The subdivided lots remained in the hands of one owner and after time, the town stopped maintaining the roads. It has been at least 15 years since any maintenance has been done. Now the property owner wants to sell the parcels. The question is, what is the town’s obligation in opening up these deeded roads, bringing them back up to town specs and maintaining them?

A:  Generally, a municipality will not lose ownership of a public road even if a private entity has appeared to, or actually maintained complete control over that road for a significant period of time. For example, there is a case, Williams v. Babcock, where a private citizen barricaded a road for more than 20 years, but the court ruled that the town still maintained ownership of that road. Therefore, your first concern is to confirm that the town actually took possession of the road built by the developer as a public way either by vote of town meeting accepting the road as a town road or by the governing body if the town has adopted RSA 674:40-a. .

If the road has not been maintained and repaired by the town in suitable condition for travel for five or more successive years the road would have lapsed to Class VI status.  RSA 229:5, VII.   If the property owner wants to sell the subdivided lots for home building purposes, the owner and select board could use RSA 231:28 to conditionally layout a Class V road over the existing Class VI road upon completion of improvements to bring the road back up to Class V standards.  .

Q:  Our town is receiving some additional funds after the passage of SB 401 for the repair of municipally owned bridges. What specifically can that money be spent on?

A:  SB 401 provided an additional and immediate infrastructure resource to cities and towns. Using state general fund surplus generated in fiscal year 2022, this law appropriates $36 million for the repair and maintenance of municipally-owned bridges, $30 million in additional municipal highway block grants, and $1 million toward the body worn and dashboard camera fund. SB 401 provides funding with restricted uses, meaning that it may be used to supplement (not supplant) local budgets; The “supplement not supplant” provision requires that these funds must add to (supplement) and not replace (supplant) local budgeted funds when providing services that repair, maintain, and construct municipal bridges (bridge -aid); repair and maintain class IV and V roads or acquire the equipment necessary to maintain Class IV and V roads (additional highway block grant). 

Jonathan Cowal is the Municipal Services Counsel with the New Hampshire Municipal Association. He may be contacted at 603.224.7447 or at legalinquiries@nhmunicipal.org.