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Legal questions remain as Fayston considers seven-lot subdivision

01/25/2007

By Erin Post

The Fayston Planning Commission continues to wrestle with legal questions even as the clock begins to tick down the 45 days they have to render a decision on a seven-lot subdivision proposed for the Old Center Fayston Road.

At the final hearing, January 23, property owner Robin Morris and engineer Gunner McCain presented plans for the 130-acre parcel and took questions from a packed room at the Fayston town offices.

Questions centered on a proposed trail that is to be re-routed through the land and on property owners' legal rights when it comes to maintaining a Class IV road that has been "thrown up," or discontinued by a town.

The town of Waitsfield suggested that possibility in a letter submitted as evidence in the proceedings. Among other concerns, the select board raised questions about the ability of the present Old Center Fayston Road to serve seven new houses and the "associated additional vehicle trips."

In addition, the "prospect that additional lands in this area of Fayston might be subdivided," further impacting Waitsfield's resources when it comes to upgrading and maintaining their section of the Old Center Fayston Road, lead them to consider giving up the road, their letter reads.

"Rather than accept the responsibility for upgrading the road, the town may choose to discontinue maintenance and throw its Class IV portion up," the letter states.

McCain used a large drawing at the January 22 hearing to explain the location of the Old Center Fayston Road, which straddles the Fayston-Waitsfield town line.

For just over three-tenths of a mile, beginning at its intersection with Loop Road (Old County Road), the Old Center Fayston Road is classified as a Class III road, McCain said. The next roughly 200 feet of the road are Class IV; this section and the Class III section lie within the town of Waitsfield.

Beyond that, the road crosses into the town of Fayston. McCain said he has received approval from the town of Fayston to upgrade about 2,065 feet of the Old Center Fayston Road leading up to the access drive for the subdivision.

Although there was some confusion regarding the location of the town line, McCain said both the Fayston and Waitsfield select boards have agreed that all 2,065 feet of roadway to be upgraded lies within the town of Fayston.

The problems center on the section of Class IV road in Waitsfield: If the town decided to throw it up, what rights do the residents of the subdivision have in regard to its maintenance?

Attorney Paul Gillies, representing Morris, said a road becomes a private right of way owned by "all users served by the road" when it is discontinued by a town.

In order to ensure that the road is maintained, commissioner Shayne Jaquith suggested including a condition in the notice of decision that requires property covenants for the subdivision to address road maintenance.

But since the residents of the proposed subdivision are in Fayston and the section of road in question is in Waitsfield, the commission debated whether Fayston could legally impose conditions on a section of road that lies in a neighboring town.

And then there's the question of alternate means of access. John Hutton, speaking on behalf of abutter Sis Kelly, said that the ability to access the subdivision from the Center Fayston Road, via the opposite end of the Old Center Fayston Road, may affect what rights subdivision residents have in regard to the lower section of the Old Center Fayston Road's upkeep.

"I don't think we've got a necessity situation," he said.

At a recent meeting in Waitsfield, McCain said he did offer to upgrade Waitsfield's section of Class IV road as part of the project but has not received a response to the proposal.

As a result of the questions surrounding access, planning commission chair Chuck Martel said he planned to contact the town's attorney for a second opinion on the situation.

"I think we'd be remiss approving a subdivision not knowing if there is access," he said.

When it came to the bike trail proposed for the land, residents from both Waitsfield and Fayston lobbied for permanent, public access to the path.

Plans call for the trail to remain open to the public unless a majority of the homeowners association votes to close it, and McCain said a permanent easement is not an option.  

Because the trail would cross residents' backyards, both Morris and McCain said they believe the homeowners should have some say as to whether access is allowed.

"We think there's a chance for abuse," McCain said.

Fayston resident Kara Hubbard said she had doubts about whether the homeowners association would keep the trail open, given the precedent for shutting down access to trails as rural areas are developed.

A trail running parallel to the upgraded section of the Old Center Fayston Road, added to the plan at the request of the Fayston Select Board, would see permanent, public access, McCain said.

Waitsfield resident Eleanor D'Aponte urged the planning commission to look at the "big picture," and said trails help to preserve the character of the Mad River Valley.

"[Trails] really represent this concept of contiguous open space," she said, adding that public access plays an important role in ensuring The Valley doesn't become "completely subdivided," taking on the feel of a suburban community.

When commissioner Kevin Wry asked if requiring permanent public access to the trail would be a "deal breaker," Morris suggested including any requests in the notice of decision.

"Put it in as a condition and we'll decide," Morris said.

The proposed subdivision includes lots ranging in size from 4 acres to almost 18 acres. About 75 acres is designated conservation land to be permanently protected from development.

The Fayston Planning Commission has 45 days to render a decision on the proposed subdivision, making the deadline March 9.

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