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After an emergency select board meeting and an executive session this week, the Waitsfield Select Board is moving the balance of its legal work for the municipal water project to a new firm.
The emergency meeting took place December 6, a week after the Vermont Superior Court issued a ruling declaring that Reed Road is not a town road. The town was represented by Glenn Howland of McKee, Giuliani and Cleveland.
That question was the subject of a November trial with the town as defendant and Jean Damon and Virginia Houston as plaintiffs. 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.
The plaintiffs argued, successfully, that the town had never taken proper steps to make Reed Road a public road and Judge Geoffrey Crawford agreed with them. The town argued that the Reed Road has been a town road since as early as 1816 and introduced town maps showing its status as a town road.
But at least one former road worker, Elwin Jones, recalls grading the Reed Road for the town from circa 1959 to1968 when he worked for Fred Armstrong. Armstrong was contracted by the town to perform summer maintenance until the town created its own road department.
GRADED THAT ROAD
Jones, a Waitsfield native, said he recalled grading the Reed Road during routine summer maintenance.
"Yes, I used to grade that road and I picked up stone down there. Back then we graded it more often than would be required today, but back then, we had to grade those roads once a year in order to receive state aid for each particular road," Jones said.
Jones, who used to live on the East Road and subsequently went into the excavating business for himself, said, "I know I graded that road and the one by Andy Baird's, the Cupps Road we used to call it."
Jones' refutation of the testimony that Judge Crawford relied upon in issuing his ruling cannot be used in any appeal the town may file. The town has 30 days to appeal the ruling, but the appeal cannot introduce new evidence and can only be argued on the legal merits of the judge's decision.
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. When new counsel is hired, the town will assess its options, including an appeal, negotiating with the plaintiffs for beginning the process of taking the land by condemnation.
In 2006, Waitsfield drilled two test wells in the three-rod right of way on Reed Road 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.