New Hampshire Town and City
Paper Streets: The Gap Between Dedication and Acceptance
New Hampshire Town and City, April 2007
By Paul G. Sanderson, Esq.
Any area shown on a recorded map or plat at the registry of deeds as a highway, but which does not have any physical improvement constructed on the face of the earth may be called a “paper street." For the purposes of this article, also included in this category are those roads which do exist on the ground in some form, but which have not been formally accepted as a public highway. Each “paper street" presents vexing problems for affected landowners, municipal officials, land surveyors, conveyancing attorneys and financial institutions.
How do “paper streets" come into existence? All highways must be created using one of the four methods permitted by RSA 229:1. One method is “dedication and acceptance." This is a two-step process, in which the landowner expresses an intent to “dedicate" land to the public for use as a highway, usually by recording a plan of the land at the registry of deeds. The second step requires the municipality to formally accept the area for public use, and thereby turn the area into a highway. See Polizzo v. Hampton, 126 N.H. 398 (1985). If there is some gap between dedication and acceptance, a “paper street" is the result. Here are four different scenarios in which this could occur:
Four Scenarios that Could Result in a ‘Paper Street’
The highway improvements are constructed in a different place than is shown on the approved subdivision plans. Modern subdivision plans are drawn to a high level of accuracy, but there are times when the actual construction in the field does not match the approved subdivision plan. Whether the “field modifications" are intentionally made to resolve an unexpected subsurface situation such as ledge, or whether the construction crew simply builds the improvements in the wrong location, the area where the road is supposed to be is still “dedicated" and subject to the rights of the public to travel.
The highway is properly located and constructed in accordance with the approved subdivision plan, but the municipality has not accepted the road as a public highway. There may or may not be homes located on the road. This is becoming increasingly common as municipalities require developers to complete construction of a majority of the homes while the road paving is at the binder coat level, and then refuse to finally accept the road until at least one winter has passed following the application of the finish top coat of paving. It is not unusual for three to five years to pass between initial subdivision approval of a development and final acceptance of a completed highway. The initial approval constitutes the dedication of the road to public use, but formal acceptance of the highway may be delayed for years.
The developer suffered a financial reverse. A developer may have obtained approvals for a subdivision, but during the process of construction suffered a financial reverse and the improvements were not constructed. Sometimes the lots were not sold and the developer retains title, sometimes in the name of a corporation or other legal entity that has gone out of existence. In other cases, the lots were sold, but the road was not constructed or the subdivision has passed to a different person as a result of a mortgage foreclosure.
The plans created prior to the adoption of zoning. Before the adoption of modern zoning ordinances, there were no local planning boards to review requests for the subdivision of land. On occasion, tracts were surveyed along their boundaries and a scheme of lots was drawn on the boundary survey plan. This was particularly popular in the more urban areas of the state and along the shores of lakes and ponds. These old plans were drafted by hand and are artistically beautiful, but may bear little relationship to structures later built because the scheme of lots often failed to consider topography or areas where construction might be difficult, such as wetlands, streams or areas of ledge outcrops. The lots were often only 50 feet wide and may never have been marked by permanent markers driven into the ground. The streets shown on these plans were often relocated or simply never constructed.
Reasons for Clarifying Status
Although each situation will vary as to the facts, municipalities should not ignore the “paper streets" within their boundaries. Instead, municipalities should attempt to clarify the status of each area and resolve the question of whether or not the land is encumbered by the public’s right to use the area for transportation purposes. For the municipality, there is a lot at stake. Here are some examples of the impact that “paper streets" may have on municipal operations.
Pursuant to RSA 231:2 and :3, all municipalities have the duty to maintain the Class IV and V highways that are located within their boundaries. The duty is perpetual, and maintaining the safety of the traveling public in both summer and winter is a significant part of the annual municipal budget. From the public works perspective, the status of each highway is used to implement a winter snow and ice clearance policy, to respond to reports that elements of the road require repair. A road may physically exist and be capable of travel, but if not yet accepted, it is still a “paper street." It raises expectations for persons living in homes built on the street, and their guests, but that road cannot legally be maintained by the municipality because it is not yet a public highway. If persons are injured while using the road, claims may still be made that the municipality is liable for property damage or personal injury to road users arising out of an “insufficiency." The actual status of the road is crucial in resolving these claims and preventing liability from being improperly placed upon the municipality.
The governing body, in cooperation with public works personnel, develops a plan each year for the orderly maintenance and upgrade of roads. The status of the highway is used in determining the amount of state aid that will flow to the municipality pursuant to RSA Chapter 235. A “paper street" is not eligible for state aid because it is not a public highway. Thus, planning and budgeting for maintenance of highways is impaired when the status of an area is unclear or unknown.
Other municipal officers use the status of municipal highways in the performance of their duties. The assessors use the quality of access to a property and the presence or absence of easements burdening the property as factors in determining the value of real estate for property tax purposes. See Waterville Estates Association v. Campton, 122 N.H. 506 (1982). Since 1971, the governing body of each municipality must, pursuant to RSA 31:95-a, have a tax map drawn showing the boundary lines of each separate parcel of land, together with road frontages, and must update the map annually. Thus the presence of “paper streets" complicates the assessment process and leads to disputes regarding value as well as requests for tax abatements. To the extent that the status of paper streets is unclear, the accuracy of the tax map may be diminished.
Local land use boards use the status of highways as critical information in the performance of their duties. The planning board uses the status of the highway adjacent to land as it adjudicates requests for subdivision or site review. In the exercise of the board’s planning duties, the master plan should contain a section describing transportation facilities and the manner in which they connect into the wider transportation systems of the region and the state. The zoning board of adjustment (ZBA) may be involved with municipal highways and vehicular traffic as it adjudicates requests for special exceptions or variances pursuant to RSA 674:33. The ZBA has a particularly important role in adjudicating requests for building permits on Class VI roads pursuant to RSA 674:41. The governing body (board of selectmen, town or city council) together with the legislative body and the planning board, have roles to play in the acceptance of streets, in accordance with RSA 674:40, :40-a, and :41. Thus, uncertainty in the status of a highway complicates the administration of the zoning ordinance and creates issues in the process of planning for the orderly development of the municipality.
Local police, fire and emergency management officials use the status of streets to deliver public safety services and to determine whether certain conduct violates motor vehicle or other criminal laws. Areas that are “paper streets" are not “public ways," but if there are citizens who live there, the request will often be made to designate the way as an “emergency lane" pursuant to RSA 231:59-a.
Given the importance of the status of streets, are there measures that may be taken to reduce the number of “paper streets" that are created in the future and to resolve the status of those that remain in existence today?
Measures to Reduce the Number of ‘Paper Streets’
The improvements on the ground are constructed in a different place than is shown on the approved subdivision plans. Municipal subdivision regulations should require the developer to submit an “as built" plan as support for the legal description of land to be conveyed to the municipality upon formal acceptance as a highway. If such a plan is provided, the changes are probably relatively minor. The planning board and the governing body should cooperate, with the assistance of the municipal attorney, to assure that any deviations from the approved subdivision plan are detected and resolved. However, if the deviations are major, there may be cause to revoke the subdivision approval by using the procedure contained in RSA 676:4-a. There is no discussion in the statute, or in any reported case, about whether revocation of a subdivision approval serves to destroy the dedication of land for use as a highway or removes the dedication of the land to public use. Thus, for any such location, the municipal governing body should also release the land from public servitude in accordance with RSA 231:52.
If the deviations are not detected at this time, the issue may be resolved in the future by use of the procedure contained in RSA 231:52. This allows the governing body to conduct a proceeding which releases the land originally dedicated on the recorded plan and then lays out the road as actually constructed as the highway.
The road is properly located and constructed in accordance with the approved subdivision plan, but the municipality has not accepted the road as a public highway. The gap between “dedication" and “acceptance" of a highway is entirely predictable and is, in fact, built into most zoning ordinances and subdivision regulations. However, there is rarely a document or subdivision regulation that specifies the rights and responsibilities of the developer/landowner and the municipality during the gap period.
The municipality may consider the use of a “development agreement" as a means to set forth in writing the exact responsibilities of both the developer and the municipality during this gap period. It may be used in addition to, or as part of, any written agreement that specifies the financial security to be provided for the costs of road construction and the specific performance standards that must be met before some or all of the financial security is released back to the developer. Financial security may be required as a condition of approval pursuant to RSA 674:36, III (b) or RSA 674:44, III (d). There is a range of options to consider with the development agreement. For example, the municipality could agree to provide winter maintenance for a fee, or it might elect to require all winter maintenance to be provided by the developer.
The developer suffered a financial reverse. This is becoming less common as municipal subdivision regulations impose requirements for performance bonding or other financial security covering the full cost of the road improvements prior to issuance of the first building permit. In the event of a default, the municipality uses the funds contained in the financial security to cover the cost of construction of the road improvements.
For developments that have failed in the past, the bonding or other security provided to the municipality may not have permitted completion of the road to the point of acceptance. These properties may now be owned by the municipality as a result of non-payment of taxes, or they may be held privately awaiting a change in market conditions. The remedy may depend upon whether or not the development rights created by the subdivision approval have vested in accordance with RSA 674:39. As noted above, if rights are not vested, or there are major deviations from the approved plans, there may be cause to revoke the recorded subdivision approval pursuant to RSA 676:4-a and cause the governing body to release the land from public servitude in accordance with RSA 231:52. If the rights have vested, it may be possible to work with the owner to re-subdivide the property in accordance with current regulations, or it may be necessary to seek relief in court to resolve the title questions, as discussed in the next section.
The plans were created prior to the adoption of zoning. This will be the most difficult situation to evaluate and correct. The recorded plans will often not meet modern standards for metes and bounds and monumentation. Improvements will probably exist that deviate markedly from the plans, yet there is no approval from the planning board to revoke. The deeds of conveyance contained in the chains of title of the abutting landowners may contain inconsistent or misleading language that does little to clarify the ownership of land where a road was originally projected to be built.
To further complicate matters, the law has changed over time as to the effect of a failure to accept a highway following dedication. Prior to 1893, an offer of dedication was permanent, and acceptance could occur at any time thereafter. However, as a result of a change in statute, between 1893 and 1969 a failure to accept a highway within 20 years of the time of dedication automatically terminated the dedication and the rights of the public. From 1969 to the present, a dedication is once again permanent. The language of RSA 231:51 allows, but does not require, a governing board to release or discharge land from the public servitude of a dedication if the highway has not been used for public travel for 20 years.
When presented with inconsistencies, the parties in interest may well be unable to come to an agreement as to the ownership of land and the rights of the public to use a paper street for travel. When presented with such a dispute, the only effective method to cure title to the residential land and clarify the rights of the public in the dedicated land is the filing of a petition to quiet title in the superior court. Pursuant to RSA 491:7, the superior court has jurisdiction to determine the title to all real estate and enter such orders as are required to perfect that title. An example is the case of Duchesnaye v. Silva, 118 N.H. 728 (1978). This involved a recorded plan in the City of Berlin dating back to 1904, and a paper street called Walnut Street, leading from an established city street called Western Avenue to land of the defendant adjacent to land of the plaintiff. In a quiet title action, the Court recognized that the plaintiff owned the fee to the centerline of Walnut Street, but imposed an easement of access over the land in favor of the defendant to allow the land it owned to be both accessed and developed.
The adoption of clear and complete subdivision regulations and the execution of clear development and financial security agreements with developers will prevent many of the problems associated with the modern paper street. Adequate financial security will allow municipalities to complete contemplated road improvements even if market conditions change. Clear development agreements will avoid disputes over maintenance of a highway in the gap between dedication and acceptance. If a subdivision has been poorly constructed, it may be possible to revoke subdivision approval and prevent inadequate highways from becoming a perpetual municipal responsibility.
There is no simple answer to resolving the paper street issues created prior to the adoption of modern zoning ordinances. Often the disputes between parties in interest are only capable of resolution within the context of a petition to quiet title to land adjudicated in the superior court.
Paul Sanderson is Staff Attorney with LGC’s Legal Services and Government Affairs Department.