, Newburyport, MA

September 13, 2013

State, town square off over Route 1 sidewalks


---- — SEABROOK — A real street brawl could be brewing between town officials and the state Department of Transportation over something as seemingly benign as sidewalks.

The standoff has come as a result of the road widening taking place on the northern stretch of state-owned Route 1, in front of the upcoming 500,000-square-foot shopping center under construction by Ohio-based Developers Diversified Realty Corporation. Sidewalks were in place in the area before they were torn up for the widening effort there to accommodate the increase in traffic expected when the retail outlet opens.

However, according to Planning Board Chairman Donald Hawkins, NHDOT is refusing to allow sidewalks to be rebuilt unless Seabrook takes full responsibility for the maintenance of the sidewalks. Hawkins said replacing the sidewalks after the road widening was included in the memorandum of agreement signed by Seabrook, DDR and NHDOT that brought an end to a lawsuit filed by the developer after the Planning Board rejected the shopping mall because of insufficient road improvements.

Having this come up now, Hawkins said, in the midst of the construction of the mall, appears to be the state and DDR going back on promises made.

The Planning Board sent a letter to DDR Vice President James Grafmeyer, who has shepherded the project through for years. The letter expresses the board’s concern over information it received that DDR “may not build the public sidewalks that were shown on the approved (site) plan.”

“While our Board is not part of any ongoing discussions on this subject with the State or the Board of Selectmen,” Hawkins wrote, “it is DDR’s responsibility to see that the improvements represented on the plan are completed, in order to obtain a Certificate of Occupancy. The Planning Board believes it is DDR’s responsibility to take all necessary steps to accomplish that requirement.”

Certificates of occupancy are issued by the town, and a business cannot open without one. The thinly veiled threat that DDR might not be allowed to open if the sidewalk issue isn’t resolved is hard to miss in Hawkins’ letter.

At least one of the town’s selectmen appears to back up the Planning Board’s position. The situation has Selectman Aboul Khan extremely annoyed.

“I don’t want to take on another unfunded mandate from the state and pass state costs along to our taxpayers to pay,” Khan said. “We do not own that road (Route 1). The state or DDR must take responsibility for the maintenance of those sidewalks.”

The unfunded state mandate Khan refers to is NHDOT’s policy not to maintain any sidewalks it owns along state highways. The policy began years ago to save the state agency money. According to published reports, the only sidewalks the NHDOT maintains currently are on Memorial Bridge in Portsmouth, but nothing else.

“The New Hampshire Department of Transportation does not maintain sidewalks,” said NHDOT spokesman Bill Boynton. “The NHDOT did not maintain the previous sidewalk along Route 1 at the location of the new development. Without a signed agreement, the NHDOT would only allow grass panels instead of sidewalks.”

Seabrook was faced with the same ultimatum from NHDOT over the sidewalks that will be built along the Route 107 bridge/I-95 overpass during its current expansion. Selectmen balked initially, but eventually signed since the sidewalks were a new addition to the bridge at the town’s request and provided safer walking for residents who live on the west side of town to Seabrook’s retail district.

Before that, in 2008, Seabrook accepted care for sidewalks along the reconstructed portions of Route 1 in the Boynton Lane area. But this time, things could be different.

“Seabrook might be joining Hampton in its approach to this issue,” Khan said.

Hampton and the state have been at odds over sidewalks along state roads for years, according to Hampton Town Manager Fred Welch, especially as it relates most recently to those along Route 1A — or Ocean Boulevard — at Hampton Beach. The seacoast highway abuts Hampton Beach State Park and state-metered parking spaces. It includes the recent $14 million improvements the state made to its beachfront.

“The state wants to do work on Ocean Boulevard and DOT has said they won’t do it unless we sign an agreement to maintain the sidewalks,” Welch said. “We’re just not signing, and they can’t force us. I don’t see the (Hampton) selectmen changing their mind on this. There was even a voter referendum and the voters said ‘no’ as well.”

For Hampton, it’s also a matter of liability, Welch said. Should the town sign on to be responsible for the plowing, maintaining and repairing sidewalks and a person is injured, the town is liable and can be sued. Welch said people have been injured on broken sidewalks along state-owned roads and have been advised by the state to look elsewhere for recompense.

“The state tells people, ‘It’s the town’s responsibility, go sue the town,’” Welch said. “They do, and we produce the 1933 deed that shows the property belongs to the state of New Hampshire and the case gets thrown out of court.”

According to published reports, NHDOT Commissioner Christopher Clements told Hampton officials that his department’s sidewalk policy has for decades been “a matter of course,” adding that the agency’s budget is too small to support sidewalk care along state roads.

“It’s a policy they don’t have the regulations to back up; they just told the town one day: ‘Those sidewalks are yours now,’” Welch said. “NHDOT says there’s no state statue that requires the state to maintain sidewalks on state roads. But there’s no statute that requires cities and towns maintain sidewalks on state roads either. But there’s a 1952 Supreme Court decision that ruled municipal governments can’t spend funds on property they don’t own. And those sidewalks are on state land.”