For certain Class V highways providing access to seasonal residences, municipalities may elect not to maintain those roads during the winter, which is defined as December 10 to April 10. (More on these dates in a moment.)
Since 1989, municipalities may make this election in one of two ways: 1) via the lay out process for any proposed new road or a non-Class V road, or 2) by vote of the legislative body for an existing Class V highway. Highways to Summer Cottages existing prior to 1989 remain as such until a vote to remove the exception, and maintain those roads for the full twelve months.
Municipal officials sometimes incorrectly refer to Highways to Summer Cottages as Class VI highways or private roads. While these roads may appear to be Class VI or private during the four-month, non-maintenance period, those labels are incorrect and misleading.
The only difference between a Class V highway and its cousin, Highways to Summer Cottages, is the absence of the maintenance obligation during the four-month period. In fact, the statute governing this classification refers to the winter months simply as an “exception” to the maintenance obligation otherwise applicable to Class V roads.
When municipalities make the Highways to Summer Cottages designation using the layout process, the municipality must make a determination that “occasion” exists for the action, and damages must be paid to qualifying property owners. The legislative body vote as to Class V roads is analogous to a discontinuance, so a qualifying property owner likely can file an action seeking an award of damages.
Municipalities must post at the entrances of these roads “notices of the closing and opening thereof.”
Municipalities may reverse the process as well. They may open, maintain and repair a Highway to Summer Cottages in all twelve months by following the same process, namely, via the governing body using the layout process or the legislative body (town meeting).
The New Hampshire legislature is considering a bill (SB 53) to empower municipalities to extend the four-month exemption period, but in no event may the period begin earlier than November 15 or end later than April 30. As of this writing, the bill has passed the Senate, and is in the House.
Paul J. Alfano, Esq. Paul can be reached at paul@alfanolawoffice.com or (603) 226-1188.