Town of Dunbarton

                                                                    

Board of Selectmen Policy and Procedure

Regarding Erection of Buildings on Class VI Highways

 

                                                                                            

I.                    Legal Principles-RSA 674:41 “Erection of Buildings on Streets; Appeals.”

           (Eff. 8/25/1998)

 

 

 

A.     The Board of Selectmen (hereinafter “ Board”) acknowledges that New Hampshire RSA 674:41, I(c) states that no building shall be erected on any lot within any part of the municipality, nor shall a building permit be

 issued  for the erection of a building unless “the street giving access to the lot”  upon which such building is proposed to be placed on a Class VI highway, provided that:

 

1.     The Board, after review and comment by the Town Planning Board

        (hereinafter  “Planning Board”), votes to issue a building  permit for   

        the erection of any building on the Class VI Highway; and

 

2.     The Town of Dunbarton (hereinafter  “Town”) assumes neither                 

                                 responsibility for the maintenance of the Class VI highway, nor any

                                 liability for any damages resulting from the use of the highway; and

                   

3.          The Applicant records in the Merrimack County Registry of Deeds

evidence of the Town’s limited responsibility and liability.

 

B.     The Board acknowledges that New Hampshire RSA 674:41, III states that:

 

1.            State law supercedes less stringent local ordinances;

 

2.            No existing lot or tract of land shall be exempt from these provisions;

                                                

3.            “The street giving access to the lot” means a street or way abutting the lot and upon which the lot has frontage. It does not include a street from which the sole access to the lot is by a private easement or right of way, unless the easement or right of way satisfies RSA 674:41, I (a), (b), or (c).

 

 

II.                 Board of Selectmen Application Procedure

        

A.        Any person wishing to erect any building on a lot on a Class VI highway

         (hereinafter “ Applicant”) shall first file a written application with the

         Board. That application shall include a detailed map drawn to scale

         depicting  all  pertinent information that the Board may require. ( RSA

         674:41, I(c)(1) and RSA 43:1).

 

B.       The Applicant shall pay all costs associated with their application. Costs 

  include, but are not limited to, photocopying, notices to all abutters, the

publication of a notice of hearing in a local newspaper  and an         

administrative fee of $50.00.

 

 

                  C.    The Board shall hold a public hearing to consider the application. The Board  shall give notice by certified mail, return-receipt requested, to all

abutters within  six hundred (600) feet of the Applicant’s lot at least fourteen (14) days prior to the hearing. The Board shall publish notice of hearing in a local newspaper and post such notice in at least two public places at least fourteen (14) days prior to the hearing. (RSA 43:2, 3).

 

 

 

D.           The Planning Board shall review, comment and make a recommendation         on the application to the Board at least three (3) business days prior to the hearing.

             

                  E.     Each application shall be unique and judged on its own merits, without                           

                    Regard to any other application.

 

           F.     Following the hearing, the Board shall render a written decision on the              

application within a reasonable time with reasons.  The Board shall file their decision in the Town Clerk’s Office and record it in the Town records. (RSA 43:4) The Board shall promptly notify the Applicant of the decision in writing  by certified mail, return-receipt requested. The decision shall become final thirty (30) days after the Board mails the decision, unless the Applicant files a written appeal of the Board’s  decisions with the Zoning Board of Adjustment (hereinafter  “ZBA”) pursuant to 674:41, II (See Below)

 

 

III.              Board of Selectmen Standard and Criteria

 

A.           The Board will consider the following non-exhaustive standards and  criteria in deciding whether to grant or deny an application for a permit to erect any building on a Class VI highway:

1.                  The condition, location, size and use (past, present and future) of      the lot;              

 

 

 2.        The construction, location and intended use of the proposed       

                                    building;

 

                                

 3.        The construction, location and intended use of the proposed                                   

            driveway;

 

 

4.                  The condition of the Class VI highway, including, but not                                limited to, base, drainage, grade, length, width, maintenance, and use (past,  present and future):

 

 

5.                  The proximity of the lot, driveway and building to the Class VI highway and the nearest Class V or better highway;

 

6.         The number of lots and buildings between and/or surrounding the proposed building and the nearest Class V or better highway;

 

7.         The relationship between the Class VI highway and the Town Master Plan;

 

8.                  The degree to which the proposed driveway and building may contribute to premature and/or scattered development;     

 

9.                  The degree to which the proposed driveway and building may effect town revenues and/or services;

 

10.       The degree to which the Class VI highway is accessible by safety and rescue vehicles, as well as by regular and ordinary vehicular and pedestrian traffic;

 

11.      The degree to which the Applicant or others can and will assume responsibility for maintaining the Class VI highway;

 

12.              The need for any highway signage;

 

 

13.              The need to indemnify the Town against any claims, damages  and/or demands; and

 

14.              Any other relevant factors.

 

B.                 The Board will not grant an application for a permit to erect any                building on a Class VI highway unless the proposed driveway access to the Class VI highway is 300 feet or less from a Class V or better highway.                             

 

C.                 The Board will not grant an application for a permit to erect any building on a Class VI highway unless the Applicant agrees to upgrade and thereafter maintain the Class VI highway, at his or her own expense, to established  Planning Board Road Design and Planning standards and specifications (not including asphalt cover) from the end of the nearest Class V or better highway up to and including the entire length of any Class VI highway frontage on the lot.

 

D.                 The Board will not grant an application for a permit to erect any building on a Class VI highway unless the Applicant and Board sign and record an Agreement and Release Regarding Building Permit for a Class VI Highway (hereinafter “Agreement”) as provided by the Board in the Merrimack County Registry of Deeds. (See attached Agreement and Release.)

 

E.                  Prior to granting an application for a permit to erect any building on a Class VI highway, the Board may, in its discretion, attach reasonable conditions, limitations and/or restrictions on the granting of the permit.

 

IV.              Appeals of the Board of Selectmen Decision – RSA 674:41,  II

 

A.                 The Applicant may file a written appeal of the decision of the Board to the ZBA whenever enforcement of the Board’s decision “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.” (RSA 674:41,II)

 

B.                 Any Applicant who appeals the Board’s decision to the ZBA shall pay any reasonable costs associated with the appeal as determined by the ZBA.

 

C.                 In ruling on the appeal, the ZBA “may make any reasonable exception, and shall have the power to authorize or issue a permit, subject to such conditions as it may impose, if the issuance of the permit or erection of a building  would not tend to distort the official map or increase the difficulty of carrying the master plan upon which it is based, and if erection of the building or issuance of the permit will not cause hardship to future  purchasers or undue financial impact on the municipality.” (RSA 764:41,II) The burden of proof is on the applicant.

 

D.                 The decision of the ZBA “shall be in writing, together with the reasons for the decision, and shall be subject to review in the manner described in RSA 677.” (RSA 674:41,II)

 

 

Policy adopted this 2nd day of August, 2001, Dunbarton Board of Selectmen: