Derry's Losing Lawsuit

In 2003 Rockingham Superior Court ruled against the Town of Derry on a lawsuit similar to the one that Nottingham's Board of Selectmen has chosen to expose the Town to. Given the outcome of this case and various New Hampshire Supreme Court decisions the Town of Nottingham should be expected to lose just like the Town of Derry lost.

In the late 1950s a subdivision was created around Rainbow Lake. At that time Derry's process for reviewing and approving subdivisions was much less rigorous than the one that was put in place starting in the 1960s, and that old process did not directly address the status of the roads. Upon creation of the subdivision, the Town of Derry began maintaining the newly created roads. This maintenance involved grading, snowplowing, and tree removal. Derry police also enforced parking and traffic laws on these roads. The roads were never gated or restricted to residents.

Documentation over the following decades about the status of the roads was conflicting. While the Town of Derry had many internal documents designating the roads as private, it had public documents in which these roads were not distinguished from the Town's other roads. Some documents from banks identified the roads as public roads.

Over the years the question of whether the Town should stop maintaining these roads came up several times among Town officials. Until 2001, Town officials chose to take no action on the issue and to simply continue the Town's maintenance of the roads.

In 2001 Derry's Town Council decided to take up the issue and declare that the roads were private and that the Town was no longer going to maintain the roads. In response to this decision, a group of residents on the roads formed an association to sue the Town. The case was tried in Rockingham Superior Court, case number 02-E-201, and a verdict was rendered against the Town on May 1, 2003 by Presiding Justice Kenneth R. McHugh.

Here are some key statements from the Court's decision.

...the Court finds and rules that by its actions and inactions the Town accepted the roads as Class V highways....

The Court determines that the Derry Town Council's decision that the roads are private is a decision "as lacking in reason as to be arbitrary, unreasonable or capricious." Accordingly, the plaintiff Association is entitled to have the Town maintain these roads.

Over the years when the issue of the status of the roads came up, the Town elected to take the non-confrontational approach of doing what little it could expense-wise to keep the roads passable so as to placate the residents. ...by all outward appearances, the Town seemed to treat these roads as it treated all of the admittedly public roads.

"A court may deem a road accepted if the municipality repairs the road or if the public uses the road for 20 years." ...the 40-year exclusive maintenance and public use of the Rainbow Lake subdivision roads clearly mandates a finding of Town acceptance.

Although the Court has found that the Town has accepted the roads pursuant to RSA 229:1, it is not prepared to set forth herein what specifically the Town must do in order to maintain these roads in the future. In defense of the within lawsuit, the Town argues that if these roads are accepted, they must be brought up to Town specifications at a cost of over $800,000. However, the plaintiff does not want to put the Town to that expense. All it wants is an order that the Town must continue the status quo with respect to its past maintenance of the roads. The plaintiff wants snowplowing and sufficient grading to make the roads passable. It would seem that the Town has the authority to make an exception to its general road specification policy for the roads in Rainbow Lake given that the exception would appear to be acceptable to the residents. The Town is free to consider the residents' request in its determination as to what should be done with respect to the maintenance of these roads.

A PDF file of the Court's decision is available for download.

Given the Town of Derry's decisive loss on such a similar case, it is foolish for Nottingham's Board of Selectmen to have the Town's legal counsel defend its decision about the camp roads because, as the Rockingham Superior Court put it about the Town of Derry's decision: "that the roads are private is a decision as lacking in reason as to be arbitrary, unreasonable or capricious."

Stop wasting taxpayers' money to defend the Nottingham Board of Selectmen's arbitrary, unreasonable, and capricious decison to stop maintainging Nottingham's old roads. Vote YES on Warrant Articles #19 and #20 to end the waste of taxpayers' money on a lawsuit that the Town appears sure to lose.