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VT - Not even the rods are safe for us any more

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VT - Not even the rods are safe for us any more

Postby rblank » Mon Feb 19, 2007 12:21 pm

http://www.projo.com/projocars/content/ca_vtroads_02-18-07_IA4EGHU.4579a77.html#

In Vermont, just ’cause it’s a road doesn’t mean you can drive on it

01:00 AM EST on Sunday, February 18, 2007


CHARLOTTE, Vt. — Steve Kantor bought his home here in 1996. It’s the last house on a quarter-mile dirt drive, with views of cow pastures and a mountain range. He likes it because it’s off the beaten track.

Seven years later, however, he was informed by the town that a 50-foot-wide public road runs through his land. He says he wasn’t aware of that. The road doesn’t appear on maps and there’s hardly a trace of it today.

“They say the center of the road is right here,” said Kantor, as he crouched down in the middle of a hedgerow alongside his land and cleared away brush.

Kantor, a lawyer, is at the center of a controversy threatening to throw a monkey wrench into the state’s residential real-estate market. Vermont has scores of old public roads that haven’t been used as such for decades and haven’t been kept up. Some resemble paths through the woods or private driveways, while others, at least to the casual observer, are indistinguishable from their surroundings. Now, with more retirees and second-home buyers acquiring Vermont real estate, some towns are rushing to stake claims to these “sleeping roads.”

Disputes center on differing perceptions of public and private property here. Known for its woodlands and rolling hills, Vermont has vast networks of trails, some of which run through people’s land. And Vermonters have a long tradition of letting people pass through their property for snowmobiling, hunting, hiking, and other forms of recreation. Locals worry that some of the outsiders now moving to the state are less open to that idea and are too fond of no-trespassing signs.

Some Vermonters are helping to guard this trail network by combing through old records to show that some of these roads are, in fact, still public. The Vermont Association of Snow Travelers, which represents about 38,000 snowmobilers, has been giving PowerPoint presentations to members on how to compare road atlases from the 1850s with today’s highway maps to find roads that might have gotten lost over the years.

That alarms some property owners and has spooked the state’s biggest title insurer, which threatened to stop writing policies in three towns where a number of old-road cases have cropped up.

For title insurers in Vermont, who by law are required to go back only 40 years in their title searches, the nightmare scenario is the one now unfolding in the town of Chittenden, in the western part of the state. For nearly four years, James and Kathy Peterson have been seeking approval to build an addition to their 2,500-square-foot white colonial house. The town has blocked them, saying it would encroach on the Green Road, which was laid out by the area’s settlers in 1793 as a mail route and hasn’t been maintained as a road since the 1830s. The Petersons’ deed contains a survey that mentions the possibility that an old road runs through their property.

The Green Road battle reached its apex one Saturday morning in May 2004, when two members of the town select board, accompanied by the town historian and others, showed up with chain saws and announced that they were going to cut the road out of the woods where they believed it once went. They began by taking down trees on the adjacent property and were moving toward the Petersons’ plot when the state police intervened. The case is set to go to trial later this year. The couple’s title insurer, First American Title Insurance Co., has already spent more than $100,000 getting ready for the case.

The worst of the battles over sleeping roads may be yet to come. A new law gives cities and towns until 2009 to get any old roads onto their town highway map or risk having to pay damages if they later want to claim them.

For property surveyors, these clashes have been good for business. Cases typically are resolved by researching the history of the road to determine whether it was, in fact, built (some were surveyed but never actually created), and if it was, whether it was ever “discontinued,” the formal term for decommissioning a road. Roads that weren’t discontinued are legally still public roads, says Paul Gillies, a lawyer and former deputy secretary of state in Vermont with wide experience in old-road cases. That’s true even if they no longer resemble roads. Surveyors pore over town charters, road maps and even deeds going back to the time of King George III.

Surveyor Terry Harris has worked on about 10 old-road cases in Vermont, including one in the town of Barnard. During a recent visit to the town clerk’s office there, Harris flipped open a volume titled Road Surveys, 1779-1865, Barnard. It contains more than 240 surveys recorded in yellowed, tightly packed script.

Not only must they try to decipher the handwriting of the day, property surveyors must also wrestle with old spellings and 18th-century legalese, as well as references to people who are long dead and landmarks that no longer exist, including churches, barns and specific trees. “You don’t know what you’re going to find, whether it’s going to be to your client’s benefit or not,” says Harris.

Dave Sargent, a select-board member in Chittenden, a hilly town of 1,200, says he remembers walking parts of the 7.5-mile Green Road as a kid with his father and enjoying its mountain views and remnants of cellar holes. “People have long accepted that a road was there, knew it was there, and never really questioned it,” says the 66-year old. “But then there is this mass migration of people from out of state and they’re building on what was or is old farmland, and suddenly, they think that because no one is driving on it, it’s no longer a road.”

Sargent says Chittenden currently has no interest in rebuilding the Green Road for cars, but the town wants to retain that option for future generations. The Petersons say they have a court document proving that the road was discontinued in the 1840s; the town says the document isn’t valid.

In Charlotte, the town says research has turned up 12 old roads that it is considering claiming. Once it decides which of those it wants to pursue, it will hold separate public hearings for each. “You can’t see them, and they were used 200 years ago, if they were used at all,” says Eleanor Russell, chairwoman of the Charlotte select board. “But they are still legitimate roads.”

For Kantor, because of the old road, there is now an encumbrance on his property, which means that every time he refinances his mortgage he has to get a letter from the title insurer pledging to defend the title.

States have different ways of dealing with their old roads. Maine, for example, presumes “abandonment” if a road hasn’t been maintained (with public money) as a road for at least 30 years.

In Vermont, some towns are likely to let their sleeping roads lie, mainly because mapping them out is expensive. But others plan to follow the path of Chittenden, Barnard and Barnard’s neighbor, Bethel, which were among the first Vermont towns to research their old roads. They all relied heavily on a local history buff, John Dutton, 69, who says he also is advising other towns. “My time is pretty tightly booked because of the pressure on these towns,” he says.
*DISCLAIMER* - The views expressed herein are the personal views of the author and do not in any way represent, nor imply to represent, the views of the North East Association of 4 Wheel Drive Clubs, it's officers, members, or affiliates.
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