The Nashua Barrier Task Force and Infrastructure committee, chaired by Alderman O’Brien, met on back-to-back evenings to address downtown barrier placement. Almost 10 hours of discussion ensued with no discussion to eliminate the barriers. The decisions from these committees must be brought to the Board of Alderman for final approval.
There were well over 50 motions made across two evenings. From a citizen’s perspective, it was confusing and, at times, disorderly and personal.
- The Barriers will be in place from the Friday before Mother’s Day to the First Sunday in October.
- The recommendations of both committees are that the Barrier will be repainted a solid red brick color with a white reflective stripe for safety.
- Approximately, 90 concrete barriers will be used on Main Street and a few side streets. Peddlers Daughter will no longer have barriers.
- The downtown travel lanes will be reduced from 4 lanes to 2 lanes.
- There will be no fee charged for the 2022 barrier seasons. The taxpayers will cover the loss of meter revenue, the repainting of the barriers, and the outside contractor hired to place and remove the barriers (approximately $125,000)
- Mr. Cummings, Director of Economic Development, stated that given the late date of these decisions, along with the need to repaint barriers and contract with an outside vendor for placement, the barriers would not be dropped until mid-June.
- The Ordinance will be enforced for three years, 2022, 2023, and 2024.
An interesting discussion ensued as Attorney Bolton discussed the rights of the City, businesses, and property owners regarding outdoor dining equipment and barrier placement.
The New Hampshire Municipal Association (NHMA) published a 2004 guidebook on the New Hampshire Roadways “A Hard Road Travel”. This is good reading for downtown property and business owners. Attorney Bolton stated that:
- Property owners determine if outdoor dining equipment can extend into the spaces that are non-restaurant businesses unless it is specifically written into the lease of the tenant.
- The law identifies “viatic use” of the roadway which grants property owners rights on the space bounded by the sides of the building to the road center including the sidewalk space.
- Attorney Bolton made it clear that he did not address barrier placement.
The “Viatic Use” argument comes down to this: The city has the legal right and authority to place the barriers but not the right or authority to dictate what businesses can or can’t do in that space. The property owner (or tenant if that authority has been given to them by the property owner) has the right to say they don’t want someone else’s dining equipment in front of their location but they do not have the right to say what another user can do with their property. It’s no different than if your neighbor built a new shed and 3 feet of it was sticking over the property line onto your property. The parties would have to work it out or go to court. For further information, reference “A Hard Road to Travel“.
Several Board members, including Alderman Moran, Alderman Cathey, Alderman Comeau, and Committee member Ms. Cardin expressed that property owners be notified of these issues when it comes to outdoor dining equipment, tenants, and the City. It appeared that all members of the committee were unaware of Attorney Bolton’s information regarding sidewalk and road rights. Attorney Bolton vehemently objected to notification believing that this type of communication would constitute legal advice; he would have no part of it. The City has no obligation to educate property owners on road rights. Some board members disagreed but took no action to inform businesses.
It appears the City will only address lawsuits brought forward by business owners in disagreement with modifications to the downtown roadway. Is that really how Nashua wants to support its downtown business owners? Stay tuned. The Board could vote on the barriers as soon as April 12, 2022.
