Legal Q&A, Class VI Roads and Maintenance Issues
By Susan Slack, Counsel, Local Government Center
Highway repair and maintenance projects are usually well underway at
this time of year, prompting questions about maintenance of Class VI roads.
There are lots of misconceptions about Class VI roads, so here are some
reminders.
Q. What is a Class VI road?
In the state’s highway classification system, which is defined in RSA 229:5, Class VI roads are “all
other existing public ways,” meaning public ways not otherwise classified as
Class IV or Class V roads. Class VI roads include those that have been
discontinued subject to gates and bars, as well as those that have “not been
maintained and repaired by the town in suitable condition for travel” for five
successive years or more. (See RSA 229:5, VII.) The two important keys to this
statutory definition are that Class VI roads are public ways, and they
are roads that the town has no duty to maintain. Note that the definition of a
Class V road is one that the town does have a duty to maintain. (See RSA 229:5,
VI.
Q. Can the town
appropriate money to maintain or repair Class VI roads?
RSA 231:59 authorizes municipalities to spend money
to repair Class IV and V highways, not Class VI roads. One of the basic tenets
of New Hampshire municipal law is that towns and cities have only that
authority granted to them by the state legislature. Without a specific grant
of authority, towns and cities do not have authority to act.
Q. Can private
parties maintain or repair Class VI roads?
Yes, with permission of the
municipality. RSA 236:9 prohibits anyone from excavating or disturbing the
ditches, embankments or traveled surface of any town road, including a Class VI
road, without the written permission of the municipality’s governing body
(board of selectmen or town/city council) or the road agent. RSA 236:10
provides that the municipality may regulate such private road work and may
require a bond for the satisfactory restoration of the road. RSA 236:11
requires anyone who excavates or disturbs town roads to restore them to the
satisfaction of the authorized local official.
Q. What happens if
the municipality maintains or repairs a Class VI road?
There are several important
reasons to avoid maintenance and repair projects on Class VI roads. First,
municipalities enjoy protection from liability for damage or injury due to the
condition of a Class VI road. RSA 231:93 provides that municipalities have no
duty to maintain or repair Class VI roads. The highway maintenance duty
established in RSA 231:90 through 92-a applies only to Class IV and V highways.
A municipality that undertakes Class VI road maintenance exposes itself to the
risk of liability for damage or injury resulting from that work. Second,
performance of maintenance or repair work could result in stopping municipal
arguments, meaning that in a lawsuit involving a landowner, a municipality may
be barred from arguing that it is not required to maintain a road due to its
Class VI status. See Turco v.
Barnstead, 136 N.H. 256 (1992). Third,
a Class V road that attains Class VI status as a
result of the lapse of maintenance will revert to Class V status again if the
town maintains it for at least five consecutive years. The “illegal” maintenance
and repair must be “regular” and “on more than a seasonal basis” so that
the road is in “suitable condition for year-round travel.” See RSA 229:5,
VI.
Q. What if there are
public safety reasons for occasionally repairing or maintaining Class VI roads?
If a municipality wishes to spend
money on Class VI road, it should do so under the emergency lane statute, RSA
231:59-a, which was enacted in 1994. That statute authorizes municipalities to
raise and appropriate money for the maintenance of any Class VI road (or private
road) that is declared an emergency lane by the governing body. The procedures
required for making this declaration include a public hearing and written
findings “that the public need for keeping such lane passable by emergency
vehicles is supported by an identified public welfare or safety interest which
surpasses or differs from any private benefits to landowners abutting such
lane.”
Q. What kind of
maintenance or repair of Class VI roads is authorized by the emergency lane
statute?
RSA 231:59-a, I provides that such
repairs may include “removal of brush, repair of washouts or culverts, or any
other work deemed necessary to render such way passable by firefighting
equipment and rescue or other emergency vehicles.” The municipality can
establish a capital reserve or trust fund for this purpose. Maintenance or
repair of Class VI roads undertaken in accordance with the emergency lane
statute does not create any duty or liability for the municipality. See RSA
231:59-a, IV.
Q. Can gates or
fences be put up on Class VI roads?
Yes, but RSA 231:21-a, I requires
gates or bars maintained by private landowners to be erected so as not to
interfere with public use of the Class VI road. Such gates or bars must “be
capable of being opened and reclosed by highway users.” Municipalities are
authorized to regulate these structures “to assure public use” and they have
authority to have gates or bars removed if they have fallen into disrepair or
if they interfere with public use of the Class VI road.
Q.
What does the term ‘gates and bars’ mean?
Q. Are there other
ways in which municipalities may regulate Class VI roads?
Reprinted with permission from New
Hampshire Town and City, July/August 2004
Return to Fall 04
Prior to 1903, a town could only
discontinue a highway completely, meaning it was no longer a public way. Only
after the state legislature enacted Laws of 1903, Chapter 14:1 could a town
discontinue an “open” highway and subject it to gates and bars. The term
“gates and bars” is not expressly defined by statute. Nevertheless, the term
historically refers to an owner’s right to enclose premises for his or her
own benefit--usually to confine livestock. The owner required public travelers
to open and close the gates or bars as a condition to travel. The term “gates
and bars” first became associated with Class VI highways in 1925, when the
legislature enacted Laws of 1925, Chapter 12:1, which provided that a town had
no duty to maintain any highway that had been closed subject to gates and bars.
RSA
231:21-a, which was enacted in 1999, provides that all Class VI
roads--regardless of how they obtained Class VI status (by layout,
discontinuance subject to gates and bars, or lapse of maintenance of Class V
roads)--are deemed subject to gates and bars. The statute clearly authorizes
municipalities to regulate their use under the provisions of RSA 41:11; RSA
47:17, VII, VIII and XVIII (highway ordinances); RSA 236:9 through 11
(excavation and disturbance); RSA 236:13 (driveway access); and RSA
231:191(weight limits).