By MICHAEL KITCH, LACONIA DAILY SUN
LACONIA — "I think a severe can of worms has been opened up and I aim to point every one of them out," Cal Dunn told the City Council this week after the Department of Public Works failed to sand the steep stretch of his private road at the end of Garfield Street.
Meanwhile, Wes Anderson, director of Public Works, had already opened the can of worms. When the council next meets on Jan. 9 he will present a report on the ambiguous status of any number of streets in all parts of the city, which his department may or may not be required to maintain. Anderson said Wednesday there are four categories of streets on his list, including private roads, which city officials believe municipalities are not obliged to maintain but instead prohibited from maintaining. There are also private roads that provide access to public streets or serve some public purpose that can be designated "emergency lanes" and maintained at public expense. There are also streets built to city standards with the intention of being accepted as public streets — Tremont Street between Pleasant Street and North Main Street is one — which somehow have not been formally accepted. These streets may be improved and accepted, either solely at the expense of the city or by the betterment process, which includes a contribution from residents in the form of a surcharge on their property taxes.
Dunn lives at 217 Garfield St. on a lot beyond the intersection with Tilton Avenue and past a small brook reached by a 350-foot steeply sloped stretch of private roadway that he built and maintains. The city-owned right-of-way also extends past Tilton Avenue, but then is sliced diagonally in half by the property line of a private lot, leaving two pie-shaped scraps of roadway, one the southern extent of the city's right-of-way and the other the northern extent of Dunn's private road.
Dunn explained that in the 1950s and 1960s, the city plowed and sanded as far as the first lot past the brook. In 1975, when Dunn purchased the two southernmost two lots and built the private road to reach them, he said that he undertook to plow, repair and maintain the road and in return the Department of Public Works agreed to sand it. Dunn said that for the past 42 years the department has sanded the road.
That is, until Dec. 18, when after rain fell on a foot of snow, icing the road, and without notice the department failed to sand. He said that he spoke with Anderson who told him the city was not responsible for the private road and questioned his assertion that the city had sanded the road in the past, a remark he found "very shady." He described their conversation as "very distasteful" and said the city was "acting like small, immature children."
Dunn told the councilors that since he was being denied municipal services either his tax rate or assessed value of his property should be adjusted. Councilor Brenda Baer (Ward 4) reminded him that the 240 homeowners at Briarcrest Estates also go without city services, but their properties are taxed at their full assessed value.
Dunn calculated that cost of applying 500 pounds of sand to his 24-foot wide 350-foot roadway would amount to $1.50 and offered to make a contribution to the city. He pointed out that trash collection had also been suspended and access for emergency vehicles was hindered.
"This is not a convenience," Dunn insisted. "This is a necessity. In essence, this is a public right-of-way, not just somebody's driveway." He said that state law forbids the city from withholding services it has provided in the past and repeated that personnel of the Department of Public Works have sanded the road for 42 years.
City Manager Scott Myers acknowledged that perhaps Dunn should have been informed the road would not be sanded, but insisted that state law forbids municipalities from spending public funds to maintain private roads. However, he told Dunn that he would speak with the city attorney about his claim that the city was not entitled to withdraw services that it had routinely provided for a number of years. Myers noted that the city has compiled "a comprehensive list" of what he called "streets in limbo," which the council will consider at its next meeting.
Councilors Henry Lipman (Ward 30 and Bob Hamel (Ward 5) suggested that in the meantime Myers could reach an arrangement with Dunn to address his concerns. Myers repeated that he would consult with the city attorney, but stressed his reluctance to enter any agreement before the council had an opportunity to consider the issues posed by the other streets in question.
Lipman also suggested Dunn consider asking the city to accept his private road as public street.
"That is not an option," Dunn replied. "As long as I live it will remain a private road." Remarking that he had "a premonition" and was known for foreseeing the future, he said "The city is going to continue sanding this or I'm going going to receive a helluva reduction in the taxes on three homes."
According to the New Hampshire Municipal Association, private roads are hard roads to travel. On the one hand, the New Hampshire Supreme Court ruled in 1952 that municipalities may only maintain private roads if the maintenance is "subordinate and incidental" to maintaining a public street and if the owner of the road pays the municipality for the services. On the other hand, in 2007 the same court found that plowing, salting and sanding and other maintenance and repair of a private road may be taken to mean that the municipality has implicitly accepted it as a public street. Consequently, the association advises its members against maintaining private roads.
This map shows the southern end of Garfield Street, with the city owned right-of-way highlighted in yellow and the dotted line beyond it defining the private road ending in a cul-de-sac. Cal Dunn owns the two southernmost lots numbered 20 and 21 on the map, also shown below. (Michael Kitch/Laconia Daily Sun)