In a memorandum opinion dated March 16, 2022, the New Hampshire Supreme Court (the “Court”) issued a ruling in favor of a Plaintiff landowner against the Town of Raymond (the “Town”) concerning the applicability of a road maintenance release.
The agreement at issue was originally entered into in June 1988, when the previous landowner sought to obtain a building permit to construct a single-family residence on a parcel of land along a private road. The Town agreed to issue the building permit in return that the landowner agrees “on behalf of herself, her heirs, legal representatives, successors and assigns” that she would forever discharge the Town from the obligation of maintaining the road.
The Plaintiff purchased the property in July 1998 and in October 2020 brought a petition seeking a declaratory judgment that the road be deemed a Class V highway due to the Town essentially treating the road as a public thoroughfare for twenty years. The Plaintiffs alleged that the Town had “consistently performed year-round maintenance of, repairs to, and/or improvements to [the road], particularly with regard to plowing snow, applying sand and/or salt, culvert maintenance and replacement, surface runoff water draining matters, grading, clearing of downed trees, repair of potholes, and the like.”
The Town argued that the 1988 release recorded with the Plaintiff’s deed precluded him from requesting the private road be declared a public highway, regardless of any voluntary maintenance performed by the Town. The Town’s argument stated that the Agreement was “explicitly required by RSA 674:41,” since the road was deemed a private road. However, the court noted that the statue did not require such agreements to construct a building on a “private road” until 2002. The version of the statue in place in 1988 “only required such agreements to construct a building on a “class VI highway”.”
In reviewing the applicability of the release, the Court concluded that the plain language of the agreement only released the Town from maintaining the road – it did not contain language which would preclude the Plaintiff from seeking to change the status of the road to a public highway. The Supreme Court vacated the lower court’s ruling dismissing the Plaintiff’s request for declaratory judgment as to the status of the road, and remanded the case but expressed no opinion on the merits of the Plaintiff’s petition.
You can contact Alfano Law Office at (603) 856-8411 or at this link.