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Waitsfield water project: Court rules Reed Road is not a town road

12/02/2010

By Lisa Loomis

In a decision issued November 30, 2010, Vermont Superior Court Judge Geoffrey Crawford ruled that Reed Road is not a public road.

The ruling is a setback for the town of Waitsfield which has drilled a well for its municipal water supply in the right of way of that road. After concluding that the town had never taken the proper steps to make Reed Road a public road, Judge Crawford halted any work on the municipal water project to build a well house on that road unless an easement is taken by condemnation or the town reaches an agreement with one of the two plaintiffs in the case.

The plaintiffs were adjoining landowners Virginia Houston and Jean Damon. During trial the first week of November, the town argued that the road has been in existence for 200 years and that it shows up on Waitsfield town maps as early as 1816.  Richard Bisbee, testifying for the plaintiffs, argued that the road was never maintained by the town in his lifetime (he was born in 1929) and said that repairs such as grading and gravel were always undertaken by abutting landowners.

SIGNIFICANT EVIDENCE

In his findings, Judge Crawford notes that there is no significant evidence that any landowner took steps to dedicate a portion of his or her land to public use as a road.

"In 1996, Ms. Houston signed a road maintenance agreement with the town. The agreement includes an acknowledgement that Town Highway 21 (Reed Road) is a Class 4 town highway which the town does not presently maintain, but over which the select board has legal control. This agreement was a condition for obtaining a permit for certain improvements which Ms. Houston wished to make to the roadway. In a previous decision of this court, the court determined that this agreement was a binding admission which resolved the issue of the status of the road against Ms. Houston and in favor of the town. The court granted a motion for summary judgment against Ms. Houston for this reason. No such ruling was entered against Ms. Damon who has never signed a similar agreement," Crawford wrote.

SIX ROUND-TRIP TRUCK TRIPS

His findings include a summarization of recent legal history regarding Houston's property and the Vermont Supreme Court - related to Houston tapping into a large aquifer on her property. Houston, in the early 1990s, applied to the town for permits for a commercial water extraction business on her property, arguing that extracting water was akin to an agricultural use and hence a use by right. The town denied the application and Houston appealed the matter to the Vermont Supreme Court, which ruled with the town in 1994 that commercial extraction of water cannot be considered agricultural and hence a use by right.

Judge Crawford wrote in his findings that Houston had not sought conditional use permits for a commercial water extraction business on her property but that is incorrect. After extensive and well-attended public hearings before the Waitsfield Zoning Board of Adjustment, Houston received permission for her project - including six round-trip water hauling truck trips per day. That permit was granted on September 25, 1996.

THREE-ROD RIGHT OF WAY

The town drilled two test wells in the three-rod right of way on Reed Road in 2006 after receiving a permit from the Vermont Agency of Natural Resources. Houston and Damon filed for declaratory action in Superior Court arguing that no drilling could take place without condemnation. The Superior Court did not rule on the status of Reed Road at the time; rather it granted summary judgment to the town, ruling that the statutes governing municipal water supply construction permitted drilling test wells prior to condemnation. That ruling was appealed to the Vermont Supreme Court which dismissed it as moot in 2007 because in the absence of a lower court injunction, the town had already drilled the test wells.

After drilling the test wells, the town took, by eminent domain, easements affecting 0.423 acres of Houston's land and 0.422 acres of Damon's property for a wellhead protection zone. The easements are within Houston's existing wellhead protection zone. The town paid each landowner $7,500 for those easements, approximately twice the fair market value assessed by an independent appraiser. Both landowners rejected compensation and that matter is still in litigation.

This week's ruling comes at a time when construction on the water project was about to wind down for the winter but still represents a setback to the town which must either begin condemnation proceedings to access the well on Reed Road or negotiate an agreement with either plaintiff. The select board has not yet met to discuss the ruling and its legal options. When the board does discuss the matter, it will be in executive session.

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