The City received the attached street acceptance petition dated August 7, 2000 to make
Northwestern Boulevard Extension a public way. The petition went before the Board of
Aldermen on September 26, 2000 and was referred to Infrastructure and calendared for Public
Hearing on October 25, 2000. At Infrastructure on October 11, 2000, it was held in committee
pending the Public Hearing. On October 25, 2000, the Public Hearing was held and
Infrastructure voted to recommend granting the petition. On November 14, 2000, the full Board
accepted the petition. On November 28, 2000, however, the Board moved to reconsider the
petition and it was re-referred to Infrastructure. While the minutes of that meeting are sparse,
other documents show that the reason the petition was sent back to Infrastructure, where it was
tabled, was to seek NHDOT approval for the railroad crossing pursuant to state law. See RSA
373. In April 2002, the City petitioned the NHDOT to designate the existing private crossing at
Northwest Boulevard as a public crossing. The railroad objected.
After a hearing, the NHDOT found that under RSA 373:1, the private crossing “shall
become a public crossing upon acceptance of that portion of Northwest Boulevard lying
southeasterly of the tracks as a public way by the City of Nashua.” (i.e. Northwest Boulevard
Extension). Further, the NHDOT found that the allocation of costs of construction, installation
and maintenance of the public crossing “shall be borne in accordance with the written crossing
agreement dated April 1, 1998.” The railroad appealed and the initial order was upheld by order
dated March 18, 2003. .
A review of City’s proceedings after the March 18, 2003 order found no record of the
street acceptance petition for Northwest Boulevard Extension being re-heard at Infrastructure or
at the full Board. As the petition is not Board-initiated, it does not die at the end of any
particular legislative session and can be brought forward to be acted upon at any time after it is
tabled.
Pursuant to the private crossing agreement and the Park Covenants, each owner,
including the City, within the Park must pay annual railroad fees including a maintenance fee, an
administrative fee and an insurance premium. The City’s share of such fees is currently
approximately $8,000 per year. It is the opinion of this office that once Northwest Boulevard
Extension is accepted and, by virtue of such acceptance, the crossing becomes public, the private
crossing agreement becomes a nullity and thus terminates. The private crossing agreement does
make provisions in the event the crossing becomes public which survive the termination of the
agreement. When the crossing becomes public, Westwood Park is to pay the railroad for the
“design, installation, maintenance, replacement, repair and removal of such protection and for
electricity . .. necessary to operate any mechanical or electrical protection and shall pay to the
railroad said fees for a period of twenty (20) years commencing with the date of designation as a
public crossing.” The City’s share of such fees is presumably less than $8,000.
An additional factor in consideration is that the City has been plowing Northwest
Boulevard Extension for years and is only afforded the liability protection of RSA 231:90 if the
roadway is public.
Accordingly, the City’s administration requests that the petition for street acceptance of
Northwest Boulevard Extension be removed from the table and acted upon in the normal course.
