History of the Camp Roads

Past generations of voters and government officials did not make the kinds of distinctions we make today about differences between public and private roads. These distinctions were much murkier then. They have arisen through decades of legislation and case law that we now enjoy for helping us make decisions, but which past generations were deprived of. The farther one goes into the past, the murkier things get. In a 300 year old town like Nottingham, things can go very far into the murky past.

Some of the roads covered by Warrant Articles #19 and #20 are extremely old. All of Dolloff Dam Rd and parts of Seamans Point Rd and Cove Rd must date back to at least the 1830s as they were necessary for the building of the dams and dikes that created Pawtuckaway Lake. Lamprey Drive must be very old too, as it leads to the remains of an old causeway from the mainland to Horse Island.

NH State Law says that any road that was in use from 1948 through 1968 is, though such long-standing usage, implicitly considered a public road for which the municipality is responsible (Hersh v. Plonski, 938 A. 2d 98 - NH: Supreme Court 2007, Section II.B.). Hence, by law the roads that appear on this 1944 map should have been officially declared Town public roads half a century ago. Note that US Geological Survey topographical maps this old do not include all of the roads that existed at that time; they just include the ones the field surveyors thought were important enough to put on the map. For example, this map does not show the currently existing road to Drown's Dam that appears on earlier maps such as the 1919 USGS map. Note on this map how Horse Island is connected to the mainland and how it would have been reachable by the causeway we know was there then and which must have been part of a road that is now Lamprey Drive but which is not on this map.

In 1955 the State acquired Pawtuckaway Lake and the land that is now Pawtuckaway State Park. As plans began for the park, land owners on the lake began creating subdivisions. These were approved by the Town through a process that was dramatically less rigorous than the one the Town now uses for approving such developments. Even though the process back then wasn't very formal, it constituted Town approval. Because the Town approved these roads, by New Hampshire law the Town implicitly accepted these roads as public roads. (Hersh v. Plonski, 938 A. 2d 98 - NH: Supreme Court 2007, Section II.B.)

The Town was happy to have an opportunity for slowing the long-standing decline in its population and tax base by creating these housing developments that would bring in substantial new property tax revenues while costing the Town little to service. The Town enthusiastically assumed maintenance of these new roads, treating them just like its other public roads. Annual Town Reports from the 1960s and 1970s show separate line items for expenditures on these roads so taxpayers could see how little these new developments were costing the Town relative to the additional tax revenue these properties brought in for the Town. (See for example the Town's 1969 Annual Report). These Town Reports also contained detailed reports from the Road Agent regarding what work had been done to what road, including many specific mentions of work done to these new roads, such as grading, adding gravel to fill in washouts, and installation and repair of culverts. The Town also paid to put up signs on these roads, using the same type of signs it used for its other public roads.

This road work was done with taxpayer funds and approved by the voters every year at the Town Meeting. The Town's officials and its voters were aware of what they were doing, and doing it on purpose, because it lessened the tax burden of the Town's existing taxpayers. Moreover, they were operating under the assumption that it was the Town's responsibility to maintain these roads because the Town had approved the creation of the roads and the subdivisions. About this, they were absolutely right. It was the Town's legal responsibility. It just never occurred to people back then that it was important to officially change the legal status of the roads, because back then few people considered such distinctions to be important. Indeed, for a while in many parts of the state, towns thought it was a good idea for the town to provide snowplowing for homeowners' private driveways (example 1, example 2). Nottingham was no exception to this. It ended this practice in 1970. In 1969 about 1% of the Town's budget was spent plowing private driveways.

The kinds of distinctions about roads we take now almost for granted were invented only a few decades ago, much of it during the United States' great road-building era of the 1950s through 1970s. These distinctions built up slowly over time through legislation and court cases. In the 1960s many of Nottingham's voters first travels on Nottingham's roads would have been using horses. Their ideas about roads were as different from the ones we have now as a Model T Ford is different from a Tesla.

Starting in the 1960s the state legislature began to realize that road management practices across New Hampshire were inconsistent and needed to be standardized. This need was becoming ever more pressing as road expenses were increasing because of the public's desire for more and better roads. The State start setting up rules regarding what existing roads were to be considered public roads and what processes and standards needed to be put into place for accepting new roads so that local municipalities could avoid the kinds of disputes like Nottingham is involved in right now.

When these rules were set up the state legislature gave towns a window of opportunity to reverse their decisions about some recently created roads that towns had been maintaining but which had not been formally approved as public roads. Some towns in New Hampshire took this opportunity. Nottingham did not. It continued to maintain the roads to the new subdivisions it had approved. At the time, this seemed to be a good decision. Stopping the maintenance would have endangered further development and reduced property values, which would have stalled growth in Nottingham's tax base.

By the 1980s the maintenance of these roads was considered so routine that the Town stopped reporting it as a separate line item in its Annual Reports. These roads were taken to simply be a part of the Town's road network, to be treated just like all of the other Town roads. Meanwhile, the Town continued granting building permits and additional subdivisions on these roads in exactly the same way the Town did for land on its other public roads.

From the 1970s into the 1990s there was a growing awareness of the importance of the distinction between public and private roads and how municipalities should be treating them. As part of this awareness towns came to end their practice of providing snowplowing for private driveways. (Moultonborough for example was doing this until the late 1980s).

Starting in the early 1990s, some people in Nottingham happened to notice that the Town had never formally accepted the camp roads as public roads. No one in the 1990s could build roads and subdivisions without the Town clearly decreeing whether the roads being created were to be designated as private or public - something that had not been done in earlier decades. Some people inferred that if the Town had not at any point decreed an old road to be a public road, the Town must have intended for that road to be a private road, like it was with current practice with roads that went across private land, not realizing that these distinctions had not been important decades earlier. Some people then started questioning whether it was legal for the Town to be spending taxpayer's money on maintaining such roads. Such questions had not occurred to earlier generations. Earlier generations thought it was just fine to have the town plow people's driveways. That people would later be splitting hairs about whether a public road happend to go across some private land did not occur to them.

Back in the 1990s answering questions about the legal status of the camp roads was much harder than it is today. There was not nearly as much case law then that clarified the legal status of these old roads as there is now. All of the documents about the relevant case law and state laws would have to be looked up by hand in specialized law libraries. While someone in the 1990s could have done this time-consuming and difficult investigation of the legal status of these old roads - someone who was probably a lawyer - that investigation does not appear to have taken place. If it had been done, the Town could have realized then that the roads were indeed the Town's responsibility and as such the real problem was not that the Town was maintaining the roads, it was that the Town had created confusion by failing to formally recognize the roads as public roads in accordance with New Hampshire law.

Ending that confusion, however, would have required the Board of Selectmen to take contentious actions. Instead, the Board looked for and found an easier and less contentious way out. In 1995 they invoked the state's Emergency Lane statute as a way to legally continue maintenance without having to further discuss the status of the camp roads.

Meanwhile, the Town of Derry, NH took a different and less prudent course of action with similar roads it had been maintaining around Rainbow Lake. The Town of Derry decided to declare that it wasn't going to maintain these roads any longer, and the people who lived on these roads would have to figure out something among themselves for keeping the roads passible. The result was that the Rainbow Lake residents sued the Town of Derry. In 2003, the Rainbow Lake residents got their day in Rockingham Superior Court and decisively won their case against Derry.

In 2020 Nottingham's Board of Selectmen decided - by a bare one-vote majority - to follow the same course of action Derry had followed years earlier, ignoring the case law established by the Rockingham Superior Court's decision about the Rainbow Lake roads and ignoring established state law about how nominally private roads have, through age, usage, and Town maintenance, been implicitly legally converted to public roads. Based on this ignorance, the Board of Selectmen put the Town on the same disastrous course of action Derry followed. They got the Town sued and they are wasting taxpayer's money litigating a case that in all likelihood the Town is going to lose.

For what purpose? One has to wonder who benefits from this, because it sure isn't the citizens and taxpayers in Nottingham.

To save Nottingham from the Selectmen's folly, two Nottingham residents have spearheaded a solution. Kip and Judy Baillargeon filed a citizens' petition for the Town's Deliberative Session to put Warrant Articles #19 and #20 on the ballot for the Town's June 8 election. This petition won the support of an overwhelming majority of the voters at the Deliberative Session.

Voting YES on these Warrant Articles will allow the Town's voters to compel the Town to follow established NH legal statutes and case law by formally acknowledging that these old roads are public roads. This will end the lawsuit and the associated wasteful spending of taxpayer's money, and it will permanently end the dispute about the status of these roads.

Voting NO on these Warrant Articles will continue taxpayer funding of the lawsuit which will in all likelihood be decided the same way Derry's Rainbow Lake lawsuit was decided, with the court compelling the Town to follow established NH legal statutes and case law by formally acknowledging that these old roads are public roads.

In either case, now it is your turn to help make Nottingham history by coming to the polls on June 8, 2021.