Private road runs through the middle of family dispute

FRANKLIN — A case arising from the privatization of a city road is headed for mediation on Dec. 19 after a Merrimack County Superior Court judge determined there are questions of “material fact” in whether Joan Emerson’s rights as a resident of the road outweigh any public benefit to the city in its closure.

Raymond and Lillian Emerson contacted Franklin City Manager Judie Milner in January 2021, asking to discontinue a section of Punch Brook Road, a Class VI highway, which runs through their property. In the letter, they announced their intention to seek assistance from an organization such as the Society for the Protection of New Hampshire Forests or the New Hampshire Fish and Game Department in protecting wildlife on their property.

Joan, 85, Raymond’s mother, resides in a home carved out of family trust-owned property. She had fallen and broken several bones on June 23, 2021, and underwent surgery on June 25, the same day that the city manager sent the public hearing notice for the July 12 City Council meeting where the discontinuance of Punch Brook Road was to be discussed. Joan remained in the hospital until July 27 and said she was unaware of what was transpiring while she was away. Yet, according to her appeal, “someone signed the Plaintiff’s name to indicate that the Plaintiff had received the notice.”

Upon arriving home and learning that the city council had approved the discontinuance of the road without her input, Joan asked the city to reconsider the vote. When her request for a rehearing was denied, she filed an appeal in superior court on Dec. 30, 2021. In her appeal, she said the discontinuance deprived her of access to her home.

Raymond had erected a gate blocking the road leading to her home and posted “no trespassing” signs that she claimed left people reluctant to visit, and she said that deliveries had been left in the snowbank.

Her appeal focused on the notification process and the city council’s decision.

In its response, the city through attorney Paul Fitzgerald argued that Franklin had followed proper notification procedures, and “[u]pon information and belief, Plaintiff was kept informed about the meeting and notice through family members and the notice was signed for by a resident of the Plaintiff’s household.”

Merrimack County Superior Court Presiding Justice John Kissinger Jr. found on Oct. 24, that Franklin officials had followed all statutory procedures and granted the city’s motions for summary judgment on those matters.

“The parties dispute whether the notice was delivered to Ms. Emerson’s residence but agree that someone signed for the notice on behalf of Ms. Emerson,” the court wrote.

However, Kissinger denied the city’s motion for summary judgment on the balance of rights between the city’s interest in the closure and Joan Emerson’s rights. In her arguments, Emerson’s attorneys wrote, “The discontinuance provides no financial benefit to the City because it has not performed work on Punch Brook Road since 1933.”

The judge concluded, “The balance of the City and Ms. Emerson’s interests is a determination a fact finder must make.”

Attorney John Hayes, who is representing Joan, said his client’s court case was the only avenue for her to pursue. The upcoming mediation will determine whether there is any public benefit in discontinuing the road.

“Ultimately, this is going to be decided by the court whether there is a public benefit, and whether it outweighs the loss of her rights that she has in the road,” Hayes said.

Attempts to reach Raymond for comment were unsuccessful.

When asked about the city’s reasons for refusing to reconsider its decision to give up the road, Milner declined comment because of the pending court case, but she said she is hopeful that the mediation will resolve the matter to everyone’s satisfaction.