Chairman Mical opened the continued public hearing per RSA 231:28, the conditional layout of a Class V road (131 feet) over a Class VI road known as Cunningham Pond Road. In attendance was Selectman Edward F. Mical –Chairman, Selectman John C. Brayshaw, and Selectman Allen C. Brown, along with Mr. Eugene Moran (petitioner of the road upgrade) and members of the public. Mr. Moran approached the Board with a letter from Mr. Roy Champagne, who is an abutter that is in favor of the road upgrade. The Director of Public Works previously reviewed the plans for the road upgrade. Changes to the width of the road, (18 foot wide with one-foot shoulder on each side) were made to stay with the existing contour of the road.

The following comments were recorded per verbatim.

Richard Cook: Were the abutters notified that the public hearing was going to be re-opened tonight?

Chairman Mical: Of the continuation of it, no.

Richard Cook: Was the abutters at the second meeting?

Chairman Mical: No. The abutters where at the initial hearing where it was stated that the public hearing would be continued to the next Tuesday.

Richard Cook: Where the abutters at the continuation.

Chairman Mical: No.

Richard Cook: Under what State Statute are you going to make this?

Chairman Mical: It was posted under RSA 231:28.

Richard Cook: Under RSA 231:28 there is a clause within the 231.

Chairman Mical: Correct, conditional layout for existing private right-of-way or Class VI Highway.

Richard Cook: So, conditional only means that it has accepted all the regulations under 231 plus you may charge the petitioner to pay for the road.

Chairman Mical: It also references the betterment assessment under 231:29.

Richard Cook: So using 231:29 are you then required to meet all the other requirements under 231?

Chairman Mical: I don’t understand your question.

Richard Cook: There are a number of requirements for the lay out of roads under RSA 231, my question is, do you need to meet all those requirements under RSA 231 since 231:28 is just the conditional approval which means it can be approved under this additional condition which the land owner would pay for the improvements to the road. If that be the case, then you must meet the requirements under 231:8 which give the Selectmen the authority. Those conditions require the consultation of the Planning Board, has that been done?

Chairman Mical: No.

Richard Cook: I will read you a quote from "A Hard Road to Travel" from the New Hampshire Municipal Association handbook on highways. "The lay out process procedure under RSA 231 chapter is technical and complex, on the contrary the New Hampshire Supreme Court (states other statutes) in light of the mess, if you get a petition for a highway layout, work closely with your local attorney, the following list of steps is intended only as a checklist and not as a do it yourself guide. The first step on the checklist is call your Town attorney, then it goes through the checklist. Number one is notice. Two, is referral to Planning Board and Legislative body, which says if the Town has a Planning Board that exercises sub-division review and petitioned highway hasn’t already been approved as part of a recorded plat, RSA 674:40 prohibits laying out the highway without first submitting the question to the Planning Board and then to the Legislative body (Town Meeting)".

Eugene Moran: This is not a sub-division.

Richard Cook: The Town has a Planning Board that exercises sub-division review. We do have a Planning Board that exercises sub-division review is that correct?

Chairman Mical: Yes.

Richard Cook: And if the petitioned highway has not already been approved…

Chairman Mical: It’s an existing roadway.

Richard Cook: But you’re going to layout a Class V over a Class VI correct?

Chairman Mical: Yes.

Richard Cook: It has not been approved. It prohibits laying out the highway without first submitting a question to the Planning Board and then to the Legislative Body, has that taken place?

Chairman Mical: No.

Allan N. Brown: RSA 231:22 a, article VI reserves the Selectmen the right to accept the road.

Richard Cook: That reclassification, shall not be deemed to limit the authority of the Selectmen to layout existing class highway upon petition pursuant RSA 231:8, so the Selectmen can only do it by either RSA 231:22a, which requires that it be done by Town Meeting or under RSA 231:8 which is what I just read.

Allan N. Brown: One of those RSA’s specifically says on section II that the Selectmen have the authority.

Richard Cook: Section II of what.

Allan N. Brown: RSA 231:22a.

Chairman Mical: RSA 231:22a, states that the Selectman of the Town upon petition may layout any new Class VI highway not financed in whole or part with Federal Aide Highway Funds or a Class V or Class VI Highways, or alter any such existing highways within their Town for which there shall be occasion.

Richard Cook: Do you totally understand the requirements under RSA 231?

Selectman Brayshaw: I believe that RSA 674:40 may also apply to this issue.

Richard Cook: RSA 674:40 also states submission to the Planning Board.

Allan N. Brown: (reading the layout process from "A Hard Road to Travel") The layout process can be used not only to create a new road but also to make a public highway out of a private road. Furthermore RSA 231:8 itself says that a layout could be used to alter an existing highway thus the layout process could be used a method of reclassifying a highway from a Class VI to a Class V (see RSA 231:22a VI) to improve, widen or relocate an existing public road.

Richard Cook: My basic point here is that there is a lot of misunderstanding about what is required. I do not feel the Board of Selectmen is in a position to make a decision on this road upgrade until the Board has a better understanding of what the RSA’s are stating. Furthermore back in August of 2002 the Board of Selectmen stated that a Road Committee would be assigned to look into these issues.

John Dabuliewicz: I’m assuming Mr. Moran would like to build a home. Mr. Moran bought the land knowing it was on a Class VI road. Chairman Mical at this time read the Class VI road policy stating that no structure shall be constructed on a Class VI highway without said road being brought up to Class V specifications.

Eugene Moran: I bought that land with never the assumption that I would never be able to build on it.

John Dabuliewicz: On a Class VI road you are not allowed to build, so when you buy land on a Class VI road you are taking a risk.

Chairman Mical: That’s not true. A codicil may be placed on a deed relinquishing the Town of responsibilities to provide services.

Allan N. Brown: Mr. Moran bought the land long before there was a policy in place.

At this time the public comments were recessed in order to move the hearing to the main floor of the Town Hall due to the increased number of people attending.

Clark Lindley: Would it not be appropriate to continue, and request input from the Town Attorney as to what the procedure should be on the RSA rules.

Linda Burdock: What is the project?

Chairman Mical: The proposal submitted is to upgrade 131 feet of road from a Class VI to a Class V road.

Eugene Moran: This is equivalent to making a driveway; it’s just for a single family home. I have owned the property for ten years. I did purchase the land in good faith with the assumption that I was going to build. I understand the sensitivity to the Mink Hills area, this is very minimal.

Mr. Eubanks: (an abutter) At the original Public Hearing I stated that I was not opposed to extending the road as long as there was an easement on the property. I understand you (Mr. Moran) are not going to put an easement on your property.

Eugene Moran: No, on the advice of my attorney.

Mr. Eubanks: I am strongly opposed to extending the road and making the possibility to sub-dividing the property. I own 100 acres across from Mr. Moran and I own 100 acres on the other side and have been considering putting an easement on my property in order to protect the Mink Hills. I will not put it into an easement if there is development potential around it. If Mr. Moran has an easement I would put an easement on the land on the other side, so now there is a third of a mile of road that it would take to develop the Mink Hills beyond that. If he doesn’t have an easement he then gives me access to my 100 acres and I would then leave that in a position to be developed. This concerns me, because you are not supposed to be able to build on Class VI roads, I knew it when I bought my piece of land. This is right in the middle of the Mink Hills and I am very opposed to expanding a Class V road.

Richard Cook: I don’t think Mr. Moran’s project is really the point here. It’s the fact that people are concerned about the continuing expansion/changing of Class VI roads to Class V roads. We are all concerned about growth. This is one control that the Selectmen can use to focus growth on where it is most appropriate within the Town.

Allan N. Brown: When Mr. Moran bought the land the Town was under a policy that said if you want to upgrade a road you could at your own expense. Now that the policy has changed Mr. Moran should not be penalized for that.

Richard Cook: The Master Plan focus’s on the Mink Hills Area to minimize development.

Martha Mical: It has been the policy of this Town that you can build on a Class VI road if you upgrade to a Class V, it’s been that way since 1985, and it’s been in writing for at least four years.

George Packard: Without question, what this large group of people is saying to you is the development in this Town has to stop.

Neil Nevins: Would it not make sense to begin with a clear interpretation of the RSA’s, and from that point on move forward.

Selectman Brayshaw: The Board of Selectmen over the past four years has looked at each project individually.

Mr. Moran: The easement I have read over is a legal instrument; I was talking no-further subdivision restriction placed on my deed.

Brian Hotz: Who would enforce the covenants on the deed? The purpose of a conservation easement is that it gives a third party enforcement of the restriction.

Allan N. Brown: This is a total reversal of what the Board did about three years ago on Colby Hill Lane. You have a Class V seasonal road that you do not issue building permits on and the Board of that time, which is only ten feet from where this man wants to start this job, issued a building permit on a Class V seasonal road. What message are we sending? You just opened, by issuing that Class V seasonal permit to a full time resident on a Class V seasonal road that we do not maintain, you opened up a potential 1100 to 1200 feet of road which is horrendous in the Minks. And now you are telling this guy that you are not going to let him open up 100 feet, and he wants to pay for it, you people stuck the Town with a huge bill when you voted to put that house on a Class V seasonal road.

Steve Lindbloom: Is the Board of Selectmen a precedent setting Board? Some Town Boards under the law, their decisions create precedents.

Rebecca Courser: If you took a hand vote, the majority of people in this room would prefer to have the opinion by Town Counsel in a meeting that they could attend and hear with their own ears. If somebody has property on a Class VI road and they come to you and get permission to upgrade it their own expense, does that change it from a Class VI to a Class V road? It does not because that can only be done at Town Meeting.

Sue Bliss: I think all of this points to the fact that there needs to be more study on this issue and there has been a Road Committee willing to work on this. Whatever is done to a Class VI road needs to be done in such a way that it does not totally alter in the negative way the area in which it has been upgraded.

John Dabuliewicz: A Policy made by one Board of Selectmen does not necessarily need to bind another Board of Selectmen. This is not an ordinance it is a policy and the Statutes still need to be complied with.

Eugene Moran: Twenty years ago you could build on Class VI roads, this is fairly recent legality New Hampshire came across with, and the purpose of the change is because of safety equipment, fire trucks etc., it was not to be used as a tool to inhibit growth.

Michael Amerault: The less upgrade and the less maintenance up at the Minks the happier I am. I’m concerned about growth, I’m concerned about protecting the Mink Hills, and our Class VI roads, I’m looking at my elected officials to protect those.

George Packard: Are you concerned if you turn this or any upgrade down that in turn the Town could be sued?

Chairman Mical: Under the provisions of RSA 231 there is an appeal process.

Steve Pacquin: Mr. Brown, what was the procedure for the house that was built on the lower end of Kelly Hill Road that was built on a Class VI road and frontage on a Class V road and they used a Class VI road for the driveway.

Allan N. Brown: Perfectly legal and legitimate. The problem was the grade and slope was so high on the Class V, (drainage problems) he was issued a building permit because he had the required footage on a Class V road, he is using a portion of the Class VI road as a driveway.

Steve Pacquin: I use that answer as an introduction because by legal cases there is precedence to allow the use of a Class VI road as a driveway.

Martha Mical: Is Mr. Moran willing to put a covenant on his deed that says he would not sub-divide the lot.

Chairman Mical closed public comments.

The Board discussed receiving clarification from Town Counsel regarding the road upgrade.

Mr. Moran commented that he would put a covenant on his deed for no further sub-division, along with Mr. Eubanks (his abutter) that would then be a total of 130 acres combined. Contingent upon the deed being brought to the Town of Warner as proof that it has been recorded with the Registry of Deeds.

Mr. Eubanks stated that he would like to see a covenant that is acceptable to the Conservation Commission that is going to be enforceable.

Selectman Brown would like a determination on how this covenant on Mr. Moran’s Deed would be enforced over time.

Chairman Mical asked Mr. Moran to work with his attorney on this covenant to the deed and for Mr. Eubanks to work with the Conservation Commission on an easement. The Board will meet again on April 1, 2003 with both Mr. Moran and Mr. Eubanks, along with the Board of Selectmen clarifying with Town Counsel the lay out of the proposed continuance of upgrade to Cunningham Pond Road.

Selectman Brayshaw made a motion to continue the Public Hearing to April 1, 2003. Selectman Brown seconded the motion. All were in favor. The motion passed.

Edward F. Mical – Chairman

John C. Brayshaw

Allen C. Brown