Split Sanbornton board issues driveway permit for Moses March Road

Neighbors fighting over whether roadway is public or private

Town leaders forced to spend thousands of dollars in legal fees on land-related cases in recent years are apparently resigned to having to spend even more — although they have no real interest in how the dispute between two landowners on Moses March Road they’re being drawn into will work out.

At last week’s meeting of the Board of Selectmen, members Steve Ober and Dave Nickerson voted to affirm notes recorded in earlier town records that identified Moses Marsh as a town road while Chair Andrew Livernois voted against recognizing the designation.

But both Livernois and Nickerson admitted the town will likely be drawn into the legal tussle between Stuart Dyment, who owns the only residence on the road, and the 200 March Road Trust, which uses abutting property for its horses.

“I think it’s going to go to court one way or another,” Nickerson said ruefully.

The dispute involved Dyment’s request that the Selectboard grant him a building permit to build a shed on his land, including a “driveway cut” to permit access to the Moses Marsh Road.

The 200 March Road Trust, led by Nick Rule, is opposed to the “driveway cut” because they claim Moses March has never been officially accepted as a town road and granting Dyment his “driveway cut” would actually allow him to illegally cross over its land.

At the meeting, attorney Karyn Forbes of the Shaheen & Gordon law firm in Concord, who represents Rule, said there’s no evidence Moses March is a town road.

“There are only four ways a road can be considered a public road according to case law and statues,” she told the board. “It has to be laid out (in some kind of accepted plan) and there’s no evidence that was ever done. It has to be for public use — and there is no public use here, there’s only one house on the road and it is simply used as assess to that one house. It doesn’t connect to another road, to a bridge or to anything else...

“And there’s no evidence of any dedication or acceptance of the road by a vote of the town,” she added. “And no evidence of deeded ownership (to the town).”

“We don’t’ object to the building permit for a shed,” Forbes said. “Our objections is the ‘driveway cut’, per se… We ask the selectmen deny the building permit as it is now proposed and let us pursue it (a resolution with Dyment) through other venues, which we’re be happy to do.”

“I disagree with everything she says,” Dyment told the board. “I have lots of evidence it’s a road. It’s critical that it be called a (town) road. I’m here for a driveway cut and a building permit. I don’t know why it’s even being discussed. It’s not up to the town to prove it’s a town road, it’s up to the town to prove it’s not a town road.”

Ironically that’s just what the Selectboard tried to do when it presented a petition article at the annual town meeting in May. “We didn’t want to be in the business of maintaining that road,” Livernois explained.

But the issue was tabled and no vote was taken. “And now I’d rather not spend town money (in court) trying to decide what is basically a dispute between two landowners,” he said.

Dyment said his deed — and other relevant deeds — lists the property as being on a “public byway”. He noted that Moses March appears on numerous historic maps and has been listed as a town road on surveys of town-owned lands over the years. In fact it is listed — although as “Bumble Bee Farm Road” — on a inventory of town roads compiled by Jeanne Surowiec, who served as chair of the Sanbornton Road Inventory Committee, about 20 years ago.

All those signs point that Moses March is a town road “by prescription”, i.e., by regular use by town residents for more than 20 years.

“It was studied to death since 1980 and it’s always came up as a town road,” Dyment told the board.

Former Selectman Tom Salatiello, who spoke on Dyment’s behalf, said his research backed up the property owner’s stance. “It contains all the major elements for a town road. It’s been maintained by the road agent for more than 50 years, probably more like 200 years. I’ve checked with the previous road agent who said that it was maintained as a public road even when he was a child. The town maintains the road in the wintertime (by plowing)

“In order to change that (i.e., declare that it’s not a town road) it would need to be voted on at town meeting which has not happened up to now.”

One resident pointed out that many of the roads in Sanbornton are not recognized as town roads by the state.

But Livernois, who is an attorney himself, said he was cautious about supporting the landowner’s claim that Moses Marsh was a road “by prescription.” “Most of the roads that are in town — for instance my road, Taylor Road — I know that people have driven up and down that road for 30 years because I’ve lived there It’s easy to prove that’s a public road.

“With Moses March it’s much harder to prove that it’s been in continuous use by the public,” he added. “And that’s the difficulty that’s raised here. The difficulty is that attorney Forbes is correct. There are ways these things are done. So even if everybody thinks it’s a town road it may be or it may not be — despite what it says on anyone’s deeds or maps.”

But Dyment had some more ammunition.

He gave the board copies of a letter signed by two selectmen dated July 24, 1986 addressed to then-landowner Dr. Ralph G. Meader which stated that Moses March Road was owned by the town.

Salatiello, who was a member of the Selectboard in 1986, admitted he could not recall why he and his colleagues had written the letter. The only hint was in a letter Meade wrote to the board days earlier asking it to clarify the issue for the sake of a possible subdivision, future sale, or the maintenance of the plowing during the winter. (The subdivision was never built and the town has continued to plow the road.)

On Friday Town Administrator Bruce Kneuer said the town had still not sorted out the issue. “The (1986) selectmen’s letter says it’s to be declared a public right-of-way, that it will be plowed in winter… But to some of us that looks like an effort to create what’s called a ‘winter road’ — and that’s a very unusual type of road. It’s one that’s designated by petition and it means the selectmen have decided to plow it for ‘winter use’ for public safety. But is that what constitutes a legal road? And how does that relate to the (state roads) statute? Even if it’s on a town map that’s just a picture and it’s not representative of anything legal.

“Pardon my pun, but a roads' scholar is going to have to parse this one out,” he concluded.

At the meeting Dyment surprised most people by reporting the trust has already hired a construction firm to do paving work on Moses March Road.

“They probably shouldn’t be paving up there,” said Nickerson, noting the end result may prove that the town does own the road.

“I know noting about any paving,” confessed attorney Forbes.

Livernois also said he was disturbed by the action, and Forbes said she would contact her client Thursday morning and advise him to halt all construction work at the site.

Livernois then suggested that the two parties might take some time to try to work out a resolution before it became a legal issue. “Perhaps if both parties would agree to suspend activity and grant an extension on this (building permit) it might give you time to reach a decision.”

But neither side appeared open to the idea.

Livernois said the town might be creating major legal problems for itself if it issued the building permit with the “driveway cut” included.

“The only issue is if we give you (Dyment) a building permit for a shed with this checked off saying we agree with the road agent’s assessment that you can put in a driveway cut we’re saying to the world that you can go ahead and do that. Then the folks (at the trust) are going to use that to sue the town and you the minute it looks you’re going to put shovel in the ground. They’ll be a (court) injunction halting your work, we’ll have to fire up our legal process… And it will cost the town a lot of money.

“So if we already think that there’s a problem there then it’s a bad decision on our part (to agree to the permit) because we’re inviting a lawsuit we think we’re going to lose,” he concluded. “That’s the risk we face.”

Finally the chair said the board had three choices. “One, we grant this building permit as it’s written and let the chips fall where they may. Or we grant the permit without the driveway cut…”

“I would have no access to my property then,” Dyment injected.

“Or we can deny the permit,” Livernois concluded. “And I don’t think we have the grounds to deny it outright.”

Looking over the papers Dyment supplied Selectman Ober said he saw “a lot of information that’s saying it’s a town road. I’ve not seen any paperwork anywhere that it’s not a town road.”

“I tend to agree with Steve,” Nickerson said. When he was an employee of the telephone company, he said they would regularly drive up Moses March Road to service an old radio tower that once existed there. “And I know some people who used to go up there to hunt, myself included. No one every bothered us.”

“I’m ready to sign the permit,” Ober said.

Ober said he’d listened to both sides several times and was ready to approve the building application, including the driveway cut.

“Me too,” Nickerson said. “He (Dyment) has got a deed that says he’s got frontage on a town road.”

“I think there’s serious doubt that that’s a town road but the majority rules here,” the chairman said.

Ober moved to approve the application and Nickerson supported the motion. Livernois voted in the negative.

Attorney Forbes did not make any immediate comment about how her clients might respond to the decision.