Private roads rear ugly head

The thorny issue of private roads, which two years ago contributed to the dismissal of Public Works Director Doug Sargent, reared its ugly head again this month when the Planning Board considered a proposal for a 16-lot residential subdivision on Hillcroft Road, a private road running along the southwest shore of Pickerel Cove.

The developer, Brian Colsia of Manchester, readily agreed to negotiate an agreement with the Department of Public Works (DPW) to make improvements to the unpaved road required by the anticipated increase in the volume of traffic. The improvements, including drainage, sidewalks and grading, are intended to satisfy the site plan regulations, which require a subdivision on a private road to provide “safe and suitable” access to a public street (in this case Hilliard Road), but will stop short of constructing the road to municipal standards.

While discussing the issue, Planning Director Shanna Saunders pointed out that a state statute prohibits municipalities from maintaining and improving private roads. At the same time, she indicated that the DPW, which has been plowing and maintaining private roads for some time, was in the process of reconsidering the practice.

In a memorandum to City Manager Eileen Cabanel, dated July 26, 2004, Paul Moynihan, then deputy and now Director of Public Works, explained that the city has classified all roads into three categories. “Accepted” roads are those that have been formally “laid out,” or surveyed, engineered and constructed to municipal standards, and accepted as city streets by a vote of the City Council. “Unaccepted” roads have neither been “laid out” nor voted by the council, but have been regularly traveled by the general public for 20 years prior to January 1, 1968 and consequently are deemed public rights of way by prescription. The definition of “unaccepted” roads is prescribed by the state law (RSA 229:1), which defines “highways.”

The remaining roads are designated as “private.” Some, like those in enclosed and gated communities like South Down Shoes, Long Bay, Briarcrest and the Taylor Home, are private by the will of the developer or owner. Others were originally built to serve subdivisions and, as proposed, were intended to become “accepted” roads, but were never completed to municipal standards.

Altogether there are 154 private roads, according to an inventory prepared by the DPW in July 2004. Of these, 89 serve South Down Shores, Long Bay, Briarcrest and the Taylor Home. However, Luke Powell, deputy director of DPW, questioned whether all of the 58 “unaccepted” roads met the test of state law, which requires that they have been used by the public regularly since 1948. He said that extensive research would be required determine the appropriate status of each of these roads.

The state law prohibiting the city from maintaining and improving private roads, to which Saunders referred — RSA 674:40, titled “improvements in unapproved streets” — specifies that after mapping and designating its roads, a municipality “shall not thereafter accept, lay out, open, improve, grade, pave, or light any street or lay or authorize the laying of water mains, sewers, connections or other facilities or utilities in any street, within any portion of the municipality unless such street ... has been accepted or opened as, or has otherwise received the legal status of, a public street.” In other words, the statute appears to limit improvement and maintenance to what the DPW designates as “accepted” and “unaccepted” roads, but makes no mention of plowing. In addition to all the “accepted” roads, the DPW plows and maintains five of the 58 “unaccepted” roads.

According to its inventory, the DPW plows and maintains five private roads — Hadley Road, Harglen Lane, Hillcrest Drive, Hillcroft Road and Pendleton Beach Road. But, Moynihan stressed that the roads are plowed solely to ensure access by emergency vehicles and that what he called “minimum maintenance” consisted only of those repairs necessary to facilitate plowing. Before the onset of winter, drivers scout their plow routes for hazards that could hinder or damage their rigs, which are subsequently removed or repaired.

Moynihan described the issue of the private roads as “touchy,” but emphasized that the department performs only the minimal maintenance to necessary to clear the roads for emergency vehicles in winter.