RSA 674:41 prohibits the erection of a building or issuance of a building permit for the erection of a building unless the street giving access to the lot upon which such building is proposed to be placed is a Class V road, or:
- The street corresponds in its location and lines with:
(1) A street shown on the official map; or
(2) A street on a subdivision plat approved by the planning board; or
(3) A street on a street plat made by and adopted by the planning board; or
(4) A street located and accepted by the local legislative body of the municipality, after submission to the planning board, and, in case of the planning board’s disapproval, by the favorable vote required in RSA 674:40; or
- Is an existing street constructed prior to January 1, 1984, and is shown on a subdivision plat that was approved by the local governing body or zoning board of adjustment before the municipality authorized the planning board to approve or disapprove subdivision plats in accordance with RSA 674:35, if one or more buildings have been erected on other lots on the same street.
Class VI and private roads
A building may be erected on a Class VI or private road only if the governing body has authorized the issuance of building permits on the road, or that portion of the road, after review and comment from the planning board. If no authorization exists, an abutter can apply to the governing body for authorization. RSA 674:41 does not set forth the criteria the municipality should use in considering a request for authorization, but the criteria should be objective and applied even-handedly throughout the municipality. One factor municipalities tend to consider is the ability of emergency vehicles to access the land in question.
An applicant may appeal the board’s decision “whenever the enforcement of the provisions of this section would entail practical difficulty or unnecessary hardship, and when the circumstances of the case do not require the building, structure or part thereof to be related to existing or proposed streets.” In fact, a person may appeal any enforcement of the “general rule” stated above, using these criteria.
Where access via easement
The statute does not permit the issuance of building permits where the sole access to a lot is via a private easement, unless the easement satisfies one or more of the various alternatives, such as being Class VI status coupled with authorization from the board of selectmen. If none of the alternatives apply, one option may be to file an appeal pursuant to the criteria mentioned above. Another option may be to demonstrate the easement actually is a private road. The term “private road” is not defined in the statute, thus making the distinction between an easement and a private road unclear.