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NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Reporter, Supreme Court of New Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any editorial errors in order that corrections may be made before the opinion goes to press. Errors may be reported by E-mail at the following address: reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 a.m. on the morning of their release. The direct address of the court's home page is: http://www.courts.state.nh.us/supreme. THE SUPREME COURT OF NEW HAMPSHIRE ___________________________

Merrimack No. 2010-719

RUSSELL FOREST MANAGEMENT, LLC v. TOWN OF HENNIKER Argued: May 5, 2011 Opinion Issued: June 15, 2011 Lane & Bentley, P.C., of Keene (Howard B. Lane, Jr. on the brief and orally), for the plaintiff.

Upton & Hatfield, LLP, of Concord (Barton L. Mayer on the brief and orally), for the defendant.

DALIANIS, C.J. The plaintiff, Russell Forest Management, LLC, appeals the order of the Superior Court (McNamara, J.) upholding the decision of the zoning board of adjustment (ZBA) of the defendant, Town of Henniker (Town), that a public highway did not become a private road after it was discontinued by a Town vote. We affirm.

The record reveals the following facts. Bowers Road in Henniker was originally laid out as a public highway in 1797. At a Town meeting in 1895, the Town voted to discontinue Bowers Road. Timothy Hanson purchased a parcel of land (the property) in Henniker in 2002. Bowers Road, which runs over a neighboring property, provides the only access to the property. Because the neighboring property owners disputed Hanson's use of Bowers Road to access the property, Hanson brought suit in superior court seeking clarification of his rights. The trial court concluded that Hanson had a "right of way in [Bowers Road] to access his property" and a "prescriptive easement over Bowers Road to access his property." Hanson sold the property to Cersosimo Industries, Inc., in 2008. In 2009, Cersosimo sold the property to the plaintiff, which applied to the Town for a building permit to construct a single-family home. Following a public hearing on the plaintiff's building permit application, the board of selectmen rejected it based upon "the provisions of RSA 674:41, III, as cited by our town counsel in previous correspondence." See RSA 674:41, III (2008). The letter from Town counsel stated: "The discontinued [highway] does not satisfy any of the enumerated criteria as set forth in [RSA 674:41, I(a)-(e)]. Rather, it is a private right-of-way accessing a Class VI highway. [The plaintiff's] property does not have frontage, but rather a rightof-way." See RSA 674:41, I (2008). The plaintiff appealed to the ZBA, which upheld the selectmen's decision. In doing so, the ZBA stated that it "found no error in the Selectmen's decision because this lot has no road frontage and is accessible only by private easement." The superior court upheld the ZBA's decision, and this appeal followed. Our review in zoning cases is limited. Harrington v. Town of Warner, 152 N.H. 74, 77 (2005). Factual findings of the ZBA are deemed prima facie lawful and reasonable and will not be set aside by the superior court absent errors of law, unless the court is persuaded by a balance of probabilities on the evidence before it that the ZBA decision is unreasonable. Id.; see RSA 677:6 (2008). We will uphold the superior court's decision unless the evidence does not support it or it is legally erroneous. Harrington, 152 N.H. at 77. Pursuant to RSA 674:41, I, a building permit shall not be issued "unless the street giving access to the lot upon which such building is proposed to be placed" meets one of the requirements enumerated in subparagraphs (a)

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