New Hampshire Town and City
Winter Maintenance of Roads and Sidewalks
New Hampshire Town and City, November/December 2009
By C. Christine Fillmore
As winter approaches, it is time once again for towns and cities to review their policies regarding plowing, salting and sanding of municipal roads and sidewalks. While every town and city has a good deal of experience with these duties, the specific responsibilities and limitations placed on New Hampshire municipalities by state and federal law continue to evolve. In this column, we look at some of the frequently-asked questions regarding winter maintenance and explain the current status of the law.
Q. Are towns and cities required to clear snow and ice from public roads?
A. Yes, to a point. Municipalities have a duty to maintain Class IV and V roads and the bridges and sidewalks along those roads. RSA 231:59; RSA 231:62. Maintenance includes plowing, salting and sanding as needed to keep the roads passable. Ritzman v. Kashulines, 126 N.H. 286 (1985).
Municipalities also have a duty to correct “insufficiencies" on public roads and sidewalks. An insufficiency exists when the road or sidewalk is either not safely passable or there is a safety hazard that is not reasonably discoverable by people using the road or sidewalk in a reasonable, prudent and lawful manner. RSA 231:92. However, even when an insufficiency exists and it causes damage or injury, municipalities may not be liable if they follow the instructions in the law. Within 72 hours after receiving written notice of the condition (or discovering it), the municipality is required to post warning signs and develop a plan to address the condition. That plan must be carried out in a reasonable amount of time. As long as the municipality does not respond in a manner that is grossly negligent or recklessly disregards the hazard, the statute provides protection from liability.
Q. We don’t have to plow everything immediately, do we? Can we prioritize?
A. Yes, prioritizing is permitted. No municipality can clear all of the streets, bridges and sidewalks at the same time, and New Hampshire law recognizes that. Ice and snow can create insufficiencies when they block roads or create dangers that are difficult to see (such as black ice). However, municipalities have an extra measure of protection under New Hampshire law for these situations. When ice, snow or other inclement weather cause an insufficiency, the municipality will not be liable for damage so long as:
the municipality had a written bad weather maintenance policy or set of priorities which was adopted in good faith before the weather event occurred; and the municipality was following that policy without gross negligence or reckless disregard for the hazard involved.
Because the municipality’s legal protection will depend, in part, on the winter maintenance policy that has been adopted, the policy itself is quite important. A good winter maintenance policy will include guidelines for plowing, salting and sanding that are developed after careful consideration of all of the important factors. These might include things like how many miles of road are involved, the geographical layout of the roads, frequency of use, whether roads are through roads or dead ends, the maintenance budget given to the highway department, the number of trucks and drivers, and any particularly dangerous areas or critical facilities that may need special attention. There should also be a record of the governing body’s and highway department’s discussions and decisions about the policy. This may help demonstrate that the policy was adopted in “good faith" as the law requires.
Q. Can we make abutters clear snow and ice from the sidewalk in front of their property?
A. No. Sidewalks on public roads must be maintained and repaired by the municipality at no additional cost to the abutters. State v. Jackman, 69 N.H. 318 (1898); RSA 231:113. Interestingly, an older statute (RSA 47:17, VII) says that municipalities may require abutters to clear snow and ice from the sidewalks in front of their buildings. However, the New Hampshire Supreme Court has held that, under the state constitution, abutters cannot be required to perform or pay for maintenance above the ordinary obligation of all citizens to pay taxes. State v. Jackman, 69 N.H. 318 (1898); see also Ritzman v. Kashulines, 126 N.H. 286 (1985); Rutkauskas v. Hodgins, 120 N.H. 788 (1980).
Q. What if the abutters put the snow or ice on the sidewalk or road in front of their property?
A. If the abutters caused the problem, the answer may be very different. An abutter might, for instance, blow snow onto the sidewalk or into the road, or create runoff from melting snow on a roof that flows onto the sidewalk or road and freezes. In that case, the abutter may be held liable for any injuries or damages caused by those conditions. Ritzman v. Kashulines, 126 N.H. 286 (1985).
Moreover, the municipality can require the abutter to correct conditions they have caused to the public sidewalk or road, or to pay the municipality’s costs in doing so. Directing water onto a sidewalk or road may cause ice to form and make the sidewalk or road dangerous for public use; this is considered a “violation" under the law, and the abutter may be fined by a court. RSA 236:19. Municipalities may notify the abutter of the problem and request them to correct it. RSA 236:35. If the abutter does not comply, the municipality can correct the situation itself and a court may order the abutter to repay the municipality the costs of responding to the situation. RSA 236:29; RSA 236:32; RSA 236:39.
Q. I have heard lately about a federal law that requires towns and cities to keep public sidewalks clear of snow and ice. Is this true?
A. Well, maybe. Recent developments indicate that municipalities may not simply refuse to clear snow and ice from a particular road or sidewalk at all, but may be able to create a plan to prioritize snow removal.
The Americans with Disabilities Act (ADA) is a federal law requiring, among other things, that governments make their programs and facilities accessible to people with disabilities. See 42 U.S.C. §§12101 et seq. (2000). Public roads and sidewalks are generally considered “facilities" that must be readily available to and usable by people with disabilities, and therefore maintained. 28 C.F.R. §35.133. As a result, federal guidance documents interpret the law and regulations to require municipalities to perform “reasonable" removal of snow, ice and other debris that may make the sidewalk inaccessible. However, federal regulations also clarify that this obligation (1) does not necessarily require each existing facility to be made accessible; (2) does not require threatening or destroying the historic significance of an historic property; and (3) does not require fundamental alteration of operations in service, program or activity nor undue financial and administrative burden. 28 C.F.R. §35.150.
The New Hampshire Supreme Court addressed this issue recently in the case of Tinker v. Town of Tilton, Docket No. 2009-0012, June 10, 2009. In its order (which was not officially “reported" and therefore is not citable as precedent), the Court considered whether the ADA required the town to clear a particular sidewalk of ice and snow so that the plaintiff, a citizen riding a motorized scooter, could pass over the sidewalk throughout the winter. The town had decided to close the sidewalk for the winter rather than clear it after every storm. However, the Court found this unacceptable under the ADA because the law requires the reasonable removal of snow and ice. The Court stated that “the refusal to remove any snow is not a reasonable limit upon the removal of snow, but is an abdication by the town of its obligation altogether."
Q. Where does this leave us? Do we have to clear every sidewalk immediately?
A. No, but the exact requirements of the law are not yet clear.
The Tinker decision was not a reported opinion and thus applies only to that particular stretch of sidewalk in that particular town, rather than to all municipal roads and sidewalks in New Hampshire. Having said that, however, the decision is an indication of the direction future opinions may take. One significant unanswered question is whether an “undue financial burden" would be placed on municipalities if they were forced to clear all sidewalks, all of the time. The answer may vary depending upon the number of miles of sidewalk and the resources of the particular municipality. We do not know yet what is required to meet the standard of “reasonable removal of snow, ice and debris."
Of course, it is clear that most towns and cities simply cannot clear all sidewalks immediately following a storm, and cannot always keep up with the ice that melts and re-freezes between storms. But, as explained above, municipalities may not simply close sidewalks for the winter or refuse to clear them at all. A better course is to include in the municipal winter maintenance policy a well-reasoned set of priorities regarding the maintenance of sidewalks during winter weather. The policy should balance the financial, manpower and equipment resources of the municipality against the requirement to provide reasonable removal of snow and ice. For example, frequently traveled sidewalks in retail districts may need to be cleared before residential sidewalks. Sidewalks prone to icy conditions may need more attention than other sidewalks. Sidewalks might be lower on the priority list than plowing of roads, and thus might not be cleared immediately after a storm. The specifics of each policy should reflect the reality of the situation in each municipality.
Q. What about Class VI roads, private roads and driveways? Do the same rules apply?
A. No. Municipalities have no legal obligation to plow, salt or sand Class VI or private roads, sidewalks along those roads, or private driveways. More importantly, municipalities have very limited authority to clear these areas. Municipalities have legal authority to spend public money to maintain only Class IV and Class V roads, sidewalks and bridges. RSA 231:59. This means that, in most cases, such maintenance should not be happening. When it does, it may lead to unintended consequences.
One potential consequence is that a Class VI road may become Class V even if the municipality did not mean to change its classification. While Class VI roads are public roads, and the municipality has the authority to regulate their use, the municipality has no obligation or authority to maintain them. It is possible for a Class V road (usually thought of as an “ordinary" town road) to lapse into Class VI status over time. If the municipality fails to maintain or repair a Class V road for five successive years or more in suitable condition for travel, its classification automatically changes to Class VI. RSA 229:5, VII. Nevertheless, the road may once again become a Class V road (which the municipality must fully maintain and repair) if the municipality regularly repairs and maintains it on more than a seasonal basis, in a suitable condition for year-round travel, for at least five successive years. RSA 229:5, VI.
Another unintended result may be the creation of a new Class V public road where a private road existed before. With respect to private roads or driveways, a 1952 opinion of the New Hampshire Supreme Court clearly stated that municipalities may only maintain private roads or driveways if:
the maintenance is subordinate and incidental to public highway maintenance (in other words, the work does not significantly alter the municipality’s manpower and equipment needs or its snow maintenance plan); and the landowner pays the municipality the cost of the service.
Clapp v. Jaffrey, 97 N.H. 456 (1952). If both conditions are not met, the municipality should not provide plowing services on private roads or driveways. Using tax money raised from all citizens to provide a purely private benefit for a select portion of the citizens is not legal, no matter how small the amount.
In addition, a municipality that provides these services runs the risk of accidentally accepting the road as a new public road—with the result that the municipality will be responsible not only for plowing, but for all repair and maintenance. One of the ways in which a public road can be created is when land has been (a) dedicated for public use, and (b) accepted by the municipality (“dedication and acceptance"). RSA 229:1.
This two-step process involves a dedication of the road, which is a voluntary action by the landowner showing a clear intent that the road be accepted and used now or in the future for public travel. The most common way to dedicate a road is to record a plan approved by the planning board showing the road. RSA 674:40. A separate act of acceptance by the municipality is also required. This acceptance may be express or implied. An example of express acceptance is a vote to accept the road by either the town meeting or selectmen (if authority has been delegated to the selectmen under RSA 674:40-a). See Neville v. Highfields Farm, Inc., 144 N.H. 419 (1999).
However, acceptance may also be implied by the conduct of the municipality. Plowing, salting and sanding, along with other maintenance and repair, may be construed by a court as an implied acceptance of the road by the municipality as a public road. Hersh v. Plonski, 156 N.H. 511 (2007). Following the 2007 decision in the Hersh case, governing bodies should be cautious not to repair or plow roads that have been dedicated but not yet accepted, in order to avoid a claim that the road has been accepted for perpetual maintenance by the municipality.
Finally, if a municipality plows private roads or driveways, it may be exposed to greater liability for damages or conditions created by that maintenance activity. As explained above, towns and cities are granted significant protection from liability with respect to the use of public roads and the maintenance of public roads in winter, but the same is not true for private roads or driveways. This means a municipality might find itself forced to pay for injury or damage caused by the plowing activity on a private road or driveway that it would not be liable for on a Class IV or V road.
Q. How can we avoid these unintended consequences?
A. If a municipality has a need to clear snow and ice from Class VI or private ways, there are at least two possible methods that may be helpful: declaring a road an emergency lane and laying out a road for winter maintenance. Of these two, emergency lane declarations (where appropriate) may be the better option.
Any Class VI or private road may be declared an emergency lane by the governing body under RSA 231:59-a. An emergency lane declaration may only be made after a public hearing if the governing body finds 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." RSA 231:59-a, II. In other words, an emergency lane declaration should be made only when it is in the interest of the public—not just for the benefit of the abutters. If a road is declared an emergency lane, municipal funds may be spent to plow, remove brush, repair washouts or culverts, or do other work “deemed necessary to render such way passable by firefighting equipment and rescue or other emergency vehicles." RSA 231:59-a, I. The municipality then has the authority, but not the obligation, to maintain the road in that manner. An emergency lane declaration may be withdrawn or disregarded at any time by the governing body, and no one may recover damages from the municipality for failure to maintain an emergency lane. RSA 231:59-a, IV.
The other method is to lay out a “winter road." RSA 231:24. A winter road is a special category of Class V road which is only open and maintained between November 15 and April 1. The only way a road can become a winter road is if it is laid out that way, by petition, through a formal proceeding held by the governing body under the layout statutes. See RSA 231:8–:39. Municipalities can charge yearly rentals to the property owners benefited by a winter road layout to pay the damages for the layout owed to the owners of the land over which the road passes. The winter road law was enacted in 1897 and has never been cited to in a reported court opinion. The intent of the statute may have been an attempt to legitimize the plowing of private roads by town, which (as explained above) is not legal except in very narrow circumstances, or to facilitate the removal of logs, which may now be accomplished by layout of a logging road under RSA 231:40–:42.
However, while winter road layout is an option, it does carry a risk. The New Hampshire Supreme Court has held that plowing alone does not keep a road in a state of repair or preserve it from decline. “Maintenance or repair work such as repaving or cold patching in summer is required to protect against and combat the road’s yearly erosion caused by rain, snow and freezing temperatures." Catalano v. Windham, 133 N.H. 504, 511 (1990). Attempting to confer winter road status on an otherwise private road, where the only work to be done by the town is plowing, raises a risk that the town may be found liable for road insufficiencies caused by a private party’s off-season maintenance, or lack thereof.
Christine Fillmore is a staff attorney with New Hampshire Local Government Center’s Legal Services and Government Affairs Department. For more information on this and other topics of interest to local officials, LGC’s legal services attorneys can be reached Monday through Friday from 8:30 a.m. to 4:30 p.m. by calling 800.852.3358, ext. 384.