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.
The NH Supreme Court recently reiterated in Harvey v. Town of Barrington, 2024 N.H. 10 that a planning board’s approval of subdivision cannot contradict the requirements RSA 674:41. That statute prohibits the issuance of a building permit for the erection of a building on any lot unless the street giving access to the lot has frontage on a Class V road, or a street on a subdivision plan approved by the planning board, or satisfies other road access criteria. Citing Turco v. Barnstead, 136 N.H. 256, 265 (1992), the court reaffirmed that RSA 674:41 applies with equal force to building permits and subdivision permits.
This guidance suggests best practices for a planning board when an applicant seeks approval for a subdivision on Class VI road or Private Road.
First, let’s define what are Class VI or private roads:
A Class VI Road is a public road that has been discontinued as an open highway and made subject to gates and bars and would include any road which has not been maintained and repaired by the town in suitable condition for travel thereon for 5 successive years. RSA 229:5, VII. Though not directly defined by statute, a private road would be any right-of-way suitable for viatic purposes over which an applicant before of land or intends to create as part of the subdivision plat. The board may need to authenticate the subdivision applicant’s right, title and interest to make use of the private road for access to the lots in the proposed subdivision.
econd, ascertain whether local zoning requirements for frontage might require zoning relief before subdivision approval can be granted:
The planning board cannot approve a subdivision that would not comply with the municipality’s zoning ordinance. Cesere v. Windham, 121 N.H. 522 (1981). The board or code official must determine how the zoning ordinance defines the dimensional requirements for subdivided lots. Does the ordinance say that frontage must be on a Class V road or better? If the zoning ordinance requires minimum frontage on a Class V road, a variance would be required from the zoning board of adjustment before the board could approve the subdivision. Does the ordinance say that frontage must be on a public road? If it does then a Class VI road would
qualify as a public road, but a private road would not. Thus, a proposed subdivision on a private road would also require a variance.
Third, plan to schedule a preliminary conceptualconsultation with the applicant:
Why make the applicant seek a variance and return for consideration of the proposed subdivision plan approval if the board might still not approve the plan because the proposed location of the subdivision on a Class VI or private road would be scattered and premature? Furthermore, the planning board cannot authorize legal access to the proposed lots as only the select board authorizes the issuance of building permits on a Class VI or private road under RSA 674:41, a limitation on the planning board’s authority that must be made clear to the applicant. Reviewing these issues at conceptual consultation will permit a frank exchange of views
between the planning board and the applicant. As provided in RSA 676:4, II (a), “such consultation shall not bind either the applicant or the board and statements made by planning board members shall not be the basis for disqualifying said members or invalidating any action taken. The board and the applicant may discuss proposals in conceptual form only and in general terms such as desirability of types of development and proposals under the master plan.”
Fourth, consider your master plan and evaluate whether the proposed subdivision would be considered scattered and premature:
The municipality’s subdivision regulations can and probably do “provide against such scattered or premature subdivision of land as would involve danger or injury to health, safety, or prosperity by reason of the lack of water supply, drainage, transportation, schools, fire protection, or other public services, or necessitate the excessive expenditure of public funds for the supply of such services.” The planning board's duty, when considering whether a proposed subdivision will create scattered or premature development, is to ascertain what amount of development, in relation to what quantum of services available, will present the hazard described in the statute and regulations. At the point where such a hazard is created, further development becomes premature. Garipay v. Hanover, 116 N.H. 34 (1976). The focus of the inquiry is upon the effect of the
proposed development on the community, not the effect of further development in general on the community. Ettlingen Homes v. Town of Derry, 141 N.H. 296 (1996) If the consensus of the planning board at conceptual consultation is the subdivision is scattered and premature, don’t be shy in making that clear to the applicant.
Fifth, the applicant submits the subdivision plan and the board proceeds with consideration:
When the board receives the subdivision plan for plan acceptance, has the applicant secured the any necessary zoning relief from that ZBA and road access permission from the select board? If not, would the application be deemed incomplete and then not accepted as a completed application? Remember, “an application shall not be considered incomplete solely because it is dependent upon the submission of an application to or the issuance of permits or approvals from other state or federal governmental bodies.” RSA 676:4, I (b).
Sixth, the planning board moves forward with consideration of subdivision approval because the applicant has secured any necessary zoning relief:
In the event the applicant has secured any necessary zoning relief, and the board is prepared to grant approval of the subdivision, the board should only grant subdivision approval subject to a condition precedent that before the plan will be signed and recorded at the registry of deeds the subdivider must first obtain approval for the issuance of building permits on the Class VI or Private Road. That requires the subdivider to apply to the select board under RSA 674:41, I (c) or (d) as follows: (1) The local governing body after review and comment by the planning board has voted to authorize the issuance of building permits for the erection of buildings on said class VI highway (or private road) or a portion thereof; and (2) The municipality neither assumes responsibility for maintenance of said class VI highway nor liability for any damages resulting from the use thereof; and (3) Prior to the issuance of a building permit, the applicant shall produce evidence that notice of the limits of municipal responsibility and liability has been recorded in the county registry of deeds.
Since the planning board has already commented favorably on the proposed issuance of building permits, the only thing the select board needs to do is ensure the notice of limits of municipal responsibility and liability has been or will be recorded at the registry of deeds.
Seventh, grant final approval after the select board approves building permit issuance and access under RSA 674:41:
When granting final approval, consider requiring the applicant to record with the approved plan a statement of covenants and conditions that would repeat and restate the notice of the limits of municipal responsibility and liability required by RSA 674:41. There should also be a note on the plan indicating that the lots in the subdivision are all subject to the statement of covenants and conditions.
Stephen Buckley is Legal Services Counsel with the New Hampshire Municipal Association. He may be contacted at 603-224-7447 or at legalinquiries@nhmunicipal.org