Town clerk Andy McLean presented the board with a list of recommended roads and trails he identified in accordance with Act 178, the state’s ancient roads legislation enacted in 2006. Under the legislation, towns have until 2015 to identify old roads, many of which ceased to be regularly used or maintained decades ago, that are still legally public rights of way. Towns can choose to maintain the public access simply by including it on the official state highway map. Any roads or other public rights of way that aren’t submitted for inclusion on the state highway map by February 2015 will cease to exist.
McLean explained that the legislation was enacted after title search companies were sued for failing to discover existing public rights of way on several Vermont properties. “(Vermont) has all these rights of way, some of them aren’t used much, so nobody knows about them. If we want to keep them, we need to put them on the state highway map so everyone knows where they are.”
McLean noted that the earliest ancient road he discovered during the process was one created in 1789. “Wow, the earliest state highway map was in 1795,” noted Jim Dassatti, of the Dover Historical Society.
McLean said the rights of way that he proposed preserving at Tuesday evening’s meeting were the “no-brainers,” including roads and trails that people already know exist, some of which are already in use by snowmobilers, hikers or horseback riders.
Some of the roads provide access to public land. “Dover has big chunks of National Forest,” McLean said. “A lot of it used to be paper company land, big tracts of steep-grade timber land. And you have strips of private land along the roads, so you have no access to that National Forest land. One of the things these rights-of-way do is provide access to National Forest. In a resort community, that’s so valuable.”
McLean showed board members a map of the roads they would be preserving. Poring over the map, board member Tom Baltrus reacted with surprise. “That’s my driveway!” he said, pointing to a corner of the map.
“Well, it’s actually a public road,” said McLean.
Baltrus said one of his neighbors, who had constructed a bridge on the trail to allow snowmobile traffic, would be surprised to discover that it was a public right of way. “I don’t think anyone has a problem with public use,” Baltrus said, noting that snowmobiles and hikers already use the trail. But Baltrus said people with property affected by the issue should be notified before the board makes a decision.
McLean disagreed. “This isn’t creating any new rights of way, they already exist,” he said. “Caveat emptor. But there is a way to petition the board to discontinue the public right of way.”
Baltrus pointed to Upton Road, and suggested it had been discontinued, and was no longer a town road. “I’ve got a document that shows the town threw that up,” he said.
“I looked into that case,” McLean said. “And it’s interesting. There was a suit by a person who owned property at the end of Upton Road and wanted the town to maintain it. The town didn’t want to maintain it. The reference to throwing the road up was made from someone’s memory, and included a book and date. In that town book, on that date, the only document is the minutes of a town meeting that mentions nothing about throwing up a town road. The court decided it is a town road and the town needed to maintain it.”
Selectboard member Vicki Capitani said the town shouldn’t give up any rights of way, citing the board’s recent decision to turn down a request by a Dover resident to discontinue or “throw up” a portion of Carroll Trail.
Selectboard chair Randy Terk agreed. “We shouldn’t give up any of these old trails and roads just because someone asks us to. That’s a mistake we’ve made in the past.”
Baltrus reiterated that he wasn’t opposed to keeping the roads and trails, just opposed to making the decision without notifying property owners. McLean said the state doesn’t recommend notifying property owners for preservation of roads such as those before the board. “If there’s evidence (of the road) on the ground, like stone walls and people walking their dogs, you don’t need to notify,” he said. “The law deems notification appropriate when there’s no evidence (of a road) on the ground.”
Terk asked if there were other roads and public rights of way that don’t appear on the map McLean presented. “There are,” McLean said. “There are other things that might be nice to have, but aren’t necessarily used now. If there’s no evidence on the ground for (a road), the method of getting it on the state highway map is more difficult.” He said he planned to bring another list of recommendations to the board to be approved in 2014.
Terk proposed the board vote on McLean’s recommendations, and plan public hearings to discuss future recommendations. “Then in a year or so, we can approve what is the result of those hearings.”
Terk said the town could choose to maintain the old roads and trails to a standard for recreational use. “If we decide to develop them, then they would be brought up to some standard that allows them to be used for biking, hiking or snowmobiling. And I hope we do.”
Could those roads and trails be marketed for some level of use?” asked Economic Development Director Ken Black. “Why yes, they could,” McLean said.