New land developments provide legal gray areas

By Melissa Proulx
On March 18, 2014

While the plethora of new off-campus housing options attract many students, there are also many grey areas involving laws and law enforcement. 

The confusion began last fall when the Cottages of Durham first opened. Shortly after, a student was charged with driving while intoxicated. According to the current laws in place, any DWI offense in New Hampshire entails punishments such as monetary fines and license suspension that can last anywhere from nine months to several years.

However, once this particular case was brought to the Bureau of Hearings, which hears all cases and appeals involving any sort of vehicular crime, the court lifted the charge after ruling that they were invalid since the Cottages was made a private way prior to opening.

A private way, by definition, is a road that the public does not have access to. They are often marked off with "Private Property" or "No Trespassing" signs and are assigned by the town.

"This means that the Town of Durham, essentially, would not be responsible for plowing and would leave it to the developer to maintain the roads," Durham Police Chief David Kurz said. Kurz's department conducted the arrest.

According to Michael Behrendt, the director of planning and community development for Durham's Planning and Zoning Board, both the town and the property's developer benefit from this policy. 

"Most of the roads within these developments are private and usually they remain private," Behrendt said. "The advantage for the developer is they maintain responsibility and [the town] doesn't have to spend money maintaining them."

The impact of this distinction in the case of the DWI translated into a jurisdictional loophole for the student who was charged.

"It would be the same as if someone were doing circles in their front yard. It's private property and, in theory, it doesn't pose a danger to other people," Kurz said.

Kurz disagreed with the ruling, stating that though the complex is said to be a private way, the public still has access to it and it should therefore be treated as such. Kurz presented the judge with cases similar to the situation that occurred at the Cottages and the judge eventually overturned the ruling and the charges were reinstated.

The particular case that Kurz used was the 2012 State vs. Lathrop trial. In the appeal, Lathrop tried to have his DWI overturned, a feat that was unsuccessful after it was ruled that public safety was still at risk. Although considered private, the particular road on which Lathrop was arrested was still technically public because "specific invitees, such as delivery drivers, municipal snow plow drivers and emergency vehicles" are still allowed to drive on the road.

"The reality is the judge saw merit in what we had done and accepted it as public access," Kurz said. "Anywhere the public has access, then you're subject to driving crimes and the police have the authority to enforce appropriate laws."

Jack Williams, the new property manager for the Cottages as of June 2013, did not wish to comment on the incident or about the subject in general.

Drunk driving, in itself, does not seem to be an overabundant occurrence here in Durham. In his annual report detailing the crime and arrest statistics of 2013, Kurz actually had some good news, reporting a decrease in DWI arrests from 68 in 2012 to 44 in 2013. 

But with a new student housing complex coming to Durham, many wonder if this jurisdictional grey area could cause the same confusion and conflict in the future. 

The Lodges at West Edge, owned by Peak Campus and located next to the West Edge parking lot, are scheduled to open a little before the beginning of the 2014 fall semester. In total, the student housing complex is said to have 460 beds for potential residents, most of which are already filled, according to property manager David Montag

"Residents can expect a world class living experience ... an environment that is welcoming and open, properly maintained with professional and courteous staff with amenities that will entice you and make you want to stay with us throughout your college career," Montag said in an email.

When it comes to rule enforcement, Montag hopes that students will be able to handle the responsibility given to them.

"We believe that our residents are adults who live in an adult community. We plan to uphold the community standard but, more importantly, we would like our residents to hold each other accountable as well," Montag said. "It is my expectation that residents and staff will work together to encourage a safe community."

And with such an incident already addressed and resolved, Kurz does not believe that the past will repeat itself anytime in the future.

"Once it is established in the eyes of the court, however, that the public does have access to it, it becomes a non-issue," Kurz said regarding why a situation like this will most likely not reoccur. "The public will have access and the police will have the authority to enforce appropriate laws."

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