Russell Forest Management, LLC v. Town of Henniker
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Bower Road in Henniker was originally designated a "public highway" in 1797. In 1895, the Town voted to discontinue the road. In 2002, Timothy Hanson purchased a parcel of land in Henniker which could only be accessed by the road. The neighbors disputed Mr. Hanson's use of the road, and he successfully brought suit to establish a right-of-way in the road. In 2009, Plaintiff Russell Forest Management acquired the Hanson property. Plaintiff applied to the Town Board of Selectmen for a building permit to construct a single-family home there. Following a hearing, the Board rejected Plaintiff's application, holding that the discontinued road could not be used as planned. The Board found that Plaintiff's property did not have the required frontage, rather, a simple right-of-way. Plaintiff unsuccessfully appealed to the Zoning Board of Appeals (ZBA) and the superior court. On appeal to the Supreme Court, Plaintiff argued that over time, the discontinued "public highway" became a "private road" due to the nature of Mr. Hanson's original use to access his property. As a private road, Plaintiff argued the Board erred in finding that it did not meet the statutory requirements for frontage to the proposed single-family house. The Supreme Court found that the "road" indeed did not meet the Town's requirements of a private road nor as frontage to the property. Furthermore, the Court found that the "road" did not meet the criteria for being a qualified easement. Accordingly, the Court affirmed the lower court's and the ZBA's decisions to deny Plaintiff its building permit.
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