OFFICE OF THE SELECTBOARD
Town of Halifax, Vermont
SELECTBOARD PUBLIC HEARING MINUTES
July 13, 2019
At 9:00 a.m. on Saturday, July 13, 2019, Selectboard members Lewis Sumner, Mitchell Green, and Bradley Rafus met with interested citizens and traveled to inspect the Class 4 and legal trail portions of Thurber Road, which are under consideration for reclassification. Nancy McCrea, Diana Conway, Tristan Roberts, Robert Fisher, Rick Contino, Daniel Lavoie, Rick Gay, Peggy Rafus, Stephan Chait, Cara Cheyette, and Norman Fajans were present for the site visit.
Selectboard Chair Lewis Sumner opened the public hearing on the reclassification of Thurber Road at 10:34 a.m., immediately following the site visit. Selectboard members Mitchell Green and Bradley Rafus were present, as were Town Attorney Robert Fisher, Linda Lyon, Everett Wilson, Andrezza Fischer, Thomas Fischer, Rick Contino, Esq., Tristan Roberts, Nancy McCrea, Diana Conway, Daniel Lavoie, Janet Eldridge-Taylor, Paul Taylor, Norman Fajans, Rick Gay, Stephan Chait, Cara Cheyette, and Robbin Gabriel.
Sumner read the hearing notice for the record, as follows:
“Notice is hereby given pursuant to Title 19 Vermont Statutes Annotated, Chapter 7, as amended, that the Halifax Selectboard, on its own Motion which Motion passed at the June 4, 2019 Selectboard meeting will consider reclassification or discontinuance of the following sections of Thurber Road: (1) Thurber Road: From the intersection of the McCrea driveway (formerly Luther Ray premises’ driveway) easterly approximately 600 feet to the boundary line of lands of McCrea and the lands of Roberts; (2) Thurber Road: From the boundary line of the lands of McCrea and lands of Roberts easterly and southerly approximately .75 miles to its intersection with Green River Road. The aforementioned road and the sections proposed to be reclassified or discontinued will be outlined and highlighted on a map to be posted at the Selectboard Meeting Room, 246 Branch Road, West Halifax, Vermont. Further reference may be had to said map. All abutters and interested persons will be notified in accordance with Title 19 V.S.A. Chapter 7. Therefore, the Selectboard will meet at the Town Office Meeting Room, 246 Branch Road, West Halifax, on Saturday, July 13, 2019 at 9:00 A.M. to conduct a site inspection of the above road sections, then reconvene at the Town Office Meeting Room on July 13, 2019, immediately following the site visit. to conduct a hearing on the question of reclassifying or discontinuing the two sections of Thurber Road outlined above. The Selectboard will then determine whether the public good, necessity and convenience of the inhabitants of Halifax require these changes. The purpose of the hearing shall be to hear all persons interested in said public highway and the reclassification or discontinuance thereof.”
Attorney Fisher asked the Board how it wished to proceed, suggesting that those wishing to speak might raise their hands, identify themselves, and state their position and reasons for or against the reclassification or discontinuance of these sections of road. All agreed with this process, and Fisher told Chait that attendees could ask questions, though it might make sense to have everyone’s testimony on record first. Fisher then invited interested parties to speak.
Cara Cheyette: For the record, is it correct that discontinuance means the road reverts to private property, so the public would only have access to the extent that landowners permit?
Fisher verified Cheyette’s statement, and explained Thurber Road’s existing status for the benefit of those present. From Green River Road (western intersection) to the McCrea driveway is Class 3; from there to the McCrea/Roberts property line we believe it is Class 4, and from the McCrea/Roberts property line to (eastern intersection with) Green River Road is legal town trail. The Selectboard will consider reclassifying the Class 4 and legal trail sections of Thurber; their options range from discontinuing those sections in full to—on the other extreme—reclassifying it all as Class 3. As stated in the warning, the three factors the Board considers in making a reclassification determination are the public good, public necessity, and public convenience.
Linda Lyon: I live on Green River Road, said Lyon, and would like to see this access kept open for both public and private reasons. She and her husband, Everett Wilson, train dogs for people with disabilities, and Thurber is the closest, safest place to exercise the dogs. Lyon also referred to the Halifax Town Plan, quoting specifically from Land Use Policies text: “To encourage the continued use of town trails for recreational and resource management purposes.” Under Recreation Policies: “Maintain the existing physical condition of town trails to promote their use for recreational purposes. Existing town trails provide essentially the town’s only opportunities for public outdoor recreation. They also serve as important corridors through back country areas for hiking, biking, snowshoeing, cross-country skiing, snowmobiling, and hunting.” Last, Lyon quoted from the Town Plan’s Recreation Recommendations section: (1) “The town should consider expanding recreation facilities to include more trails, major preserves, and areas open to landowners and residents of Halifax;” and (2) “Appoint a committee to explore policies regarding off-road vehicles on town trails and how these affect water quality, conservation, trail quality, and public maintenance expenses.” Lyon stated that the voters’ approval of the Town Plan indicates their approval of keeping town trails open to the public rather than privatizing them. That’s especially important in Halifax, said Lyon. We don’t have a town forest, state parks, or public lands.
Dan Lavoie (Moss Hollow Road): Lavoie requested clarification on who can use legal trails. Is it just for walking, or are ATVs, snowmobiles allowed? He said he’s gone down Thurber trail, and suddenly felt he was in Tristan Roberts’ front yard; he doesn’t want to do something illegal.
It is a public right-of-way, responded Fisher; legally anyone can go down the trail, unless the Selectboard passes a trail policy that limits the use of ATVs, motorbikes, or snowmobiles, which it has the authority to do. To my knowledge the town does not have such a policy, so yes, it’s legal to ride an ATV down the trail.
Lavoie suggested the financial impact of a classification change should be considered. If the status is changed, does it cost the town money, or does the town lose money from the State?
Class 3 roads receive a certain amount of money from the State, answered Fisher. Class 3 roads need to be maintained for a typical pleasure car year round. Rafus and Sumner said that Class 3 roads get money per mile from the State. Class 4 roads do not get anything; neither do legal trails. There is no duty to maintain legal trails. Towns may do some maintenance on Class 4, such as culvert cleaning. The Selectboard has the authority to permit abutting landowners to improve sections of Class 4 roads and trails. Brad Rafus added that under the new Road and Bridge Standards Class 4 road requirements have changed a little; culverts have to be up to specification, and run-off water must be controlled, possibly with ditches or waterbars. Rafus verified, for Cara Cheyette, that the section of Thurber Road between the McCrea driveway and the McCrea/Roberts property line is Class 4. There are a few culverts in that section, he said, and he agreed that reclassifying the section as trail would eliminate the maintenance requirement. If, fifty years from now, the town wanted to use that as a throughway, the town would have to purchase that back if it were discontinued, said Cheyette. That’s correct, said Fisher. He explained that per statute a Class 4 road is a highway, while a trail is not a highway. State and local zoning laws say you must have frontage on a town highway in order to build. That may have a financial impact on the town, depending on how the listers assess the property. There could be a difference in parcel value with frontage on a Class 4 road versus a trail, given the ability to build based on zoning. In this particular circumstance I don’t think that makes a difference, as the Roberts property has frontage on Green River Road, and the McCrea property has frontage on the Class 3 portion of Thurber Road.
Paul Taylor (Josh Road): It would be nice if there were a win-win solution to the problem, but I’m not seeing it. If the section from McCrea to Roberts (property line) were thrown up, I can see where that would benefit the McCrea household, but Roberts would lose the most direct access to a Class 3 road, so he strikes me as the loser in that proposition.
Tom Fischer: We have a house on Perry Road. I’m against closing it (Thurber Road), because the original homeowners told us after the Irene storm, when Green River Road was flooded out, they used Thurber for access from the outside for a month or so. If something were to happen to Green River Road, that would be a way we could access a supermarket, a hospital, etc. I would urge you not to have that closed.
Peggy Rafus: For clarification, I’d like to have the Selectboard state how much of that Class 4 section of road was used for Irene, because it’s my understanding that during Irene they used the field, and only used about a hundred feet for emergency access. Part of the Class 4 section was muddy and washed out during the storm, said Brad Rafus, so vehicles traveled across the field. Later the previous owners (the Rays) built the washed-out portion up again. Tristan Roberts recalled that early in the storm people were using the full Class 4 section, but as it became impassable the field was used to access the trail portion of Thurber. That fall Roberts received permission from the Selectboard to restore the Class 4 section with gravel, and the Rays did the work.
Diana Conway: Nancy (McCrea) and I own that property together (the former Ray parcel), and we pay taxes. We moved there for the peace and quiet, and for the pasture, which is one of the prize agricultural spots in the region. We bought it thinking it was a trail, but since we moved it seems like maybe our neighbor is encouraging people to take leisure cars through there, and also I feel that landowner is even encouraging delivery trucks to go up through there, and it hasn’t felt private any more. Also, if that whole thing is reclassified as Class 4, that neighbor would benefit from having more road frontage, and then I’m concerned there will be more building down there, and then there will be more traffic coming through our farm.
Janet Taylor (Josh Road): For years, I think people know I’m concerned about having more trails in town, and about being able to hike different parts of the town, so I would be in favor of trying to keep that open, especially since Irene, and that the whole area has been upgraded. It would be a shame to let that go to waste now, and maybe never open it up again if we need it.
Nancy McCrea: I think the Town Plan also talks about supporting agriculture, and lists that as important. There’s a lot of talk about people wanting to hike it. We’ve been there a year as of yesterday; we’ve never seen anybody up there hiking. Our driveway is long, and maybe we don’t see them, or maybe they are mis-remembering when they walked it. This morning at 7:30 our horses alerted that somebody was out there walking around; people who are in this room now. People don’t use that trail. I know people here are talking about wanting to use it, and wanting to hang onto it, but the reality is that it’s not used. We pay takes on that section of land; we would like to go across. You talk about the good, the necessity, and the convenience of the public at large; I don’t see how keeping that open meets those three criteria. We’ve been going to a lot of the Selectboard meetings, and it’s rare that there are more than four people in attendance, unless people are complaining about mud season, or here to keep open a road that nobody’s using. I’m struck by the amount of roads that the town already has to maintain, and I’m struck by the requirements of Act 64, and I believe maybe sometimes Act 250, though I could be wrong about that. I don’t know how the town is going to be able to go forward to keep up what they have. I have a personal interest in what’s being discussed here today, but I don’t know why the town isn’t closing as many as possible, to save people from being taxed heavily. Basically our taxes pay roads and schools; I know there’s other things, but that’s the bulk of it. My understanding from the Selectboard meetings I’ve attended is that things are only going to get more stringent, the requirements more plentiful, and that the resources just aren’t available to do what’s necessary. The reality is the road doesn’t go anywhere. Tristan has access from Green River up to his house, and the Rays accessed the way we are. It’s a pretty little walk, but people do not come and use it. If anybody says they’re using it, I just question it. And I’d like the road to end where it abuts our property; I’m not trying to interfere with Tristan’s use of what he abuts. But I’d like our section closed. Thank you.
Stephan Chait: I have more of a question. One of the topics that has come up at Selectboard meetings is setting a precedent, and having uniform policies across the entire town. If a road is discontinued, has that been done in the town before, and what sort of precedent does it set, because there are a number of other roads that used to go places that are now trails. Vaughn Road, where I live, is one of them. It used to go down to Route 112 and now it terminates at a property and the trail continues, but the road does not. What precedent is there for closing a Class 4 and a trail in the town, and from a legal point of view what kind of standard does that set if somebody else comes in and says I’d like to close this part of the road?
The standard is the same regardless; it’s public good, necessity, convenience, responded Fisher. That gets applied any time, and whether it’s the Board making a motion to reclassify or alter a road, or lay out a new road across property, the town can either do that on a Selectboard motion, or it can be petitioned by five percent of the voters. Fisher and Board members recalled several Halifax roads that have been discontinued, including Winchester Road, which once extended into Marlboro, Chase Hill, and Sodom Road. Regarding precedent, if the road (Thurber) were to be discontinued today, that doesn’t mean other roads have to be discontinued in the future, said Fisher. It’s on a case-by-case basis; circumstances differ.
There are two neighbors who have competing interests here, said Chait. It’s a tough issue to try and resolve, and now the town is being asked in some way to resolve it. The concern I have is, when you say public good and convenience, that’s an issue that covers the whole town, and it seems the Selectboard needs to have the perspective of protecting and having beneficial use of the town’s resources. Giving up a right-of-way and turning it into private property, it seems the town is giving up something, independent of the two parties on either side.
Rick Gay: It seems like if we change that road to a town trail there wouldn’t be any more expense. Is there that much work you have to do on that (the Class 4 section)? I empathize with having a dead-end road; when we had mud season and nobody could come by my house, it was great.
In recent years, Rafus answered, the State is pushing more responsibility for Class 4 roads onto the town. We just signed our Bridge and Road Standards at the last Selectboard meeting, and there is literature in that on what we have to do for Class 4 roads that was never there before. Looking down the road ten years, I think it will get worse.
Norm Fajans: I agree with Rick. I haven’t heard from Tristan yet, how he feels about everything. It would seem to me the town does not want to give up rights of way, especially with what happened in Irene. Don’t say it’s a hundred year event and it can’t happen again, because the weather is changing. That was, obviously, a good right-of-way to have so we could use it. I would hate to see the town give up any of those rights of way and go back to private ownership. Mr. Roberts has been out there ten years, has been using this access; to me, it would seem unfair to basically take an access away for the benefit of somebody else. Going out there (on the site inspection) it seems the best access for emergency vehicles would be coming through the present Class 4 road, rather than coming up from the other direction, because it’s flat, and closer to the fire house. I understand what Bradley is saying about Class 4 roads costing us money. Don’t throw it up, but turn it all into town trail; nobody would lose. The town would have right of way for emergency use, Mr. Roberts would have access both ways; that, to me, would seem to be the simplest solution.
Dan Lavoie: I understand both sides of it, but at the same time, the McCreas would not be able to extend their pasture to the other side, with electric fencing.
They can, responded Norm Fajans. They can walk a horse across the road, you can put a water pipe under the road, put in a frost-free hydrant, and put up a 10’ x 20’ run-in shed pretty inexpensively if you need shelter. Or you can haul the water in big tanks, and fill a tank over there. Just for the convenience of not having to lead a horse across the road, and thereby restricting my access if I want to go walk that road doesn’t seem fair. We also have goats, said Diana Conway. From a legal perspective, advised Fisher, any landowner can approach the Selectboard for a permit to work within the town right of way. For instance, if you wanted to put a culvert or electric line under the town road, you come to the town for what I call an 11-11 permit. My point is, from a legal standpoint, the Board can grant access to put in conduit or a waterline. Fajans thought a water line could be put across the road during summer months; livestock would not use the pasture in the winter.
Peggy Rafus: Can a landowner put a gate on a trail?
Not unless the town were to designate it as a pent road, replied Fisher. That allows the town to say it can be gated, but the gates can be opened; they can’t be locked. Does the town have the ability to stop wheeled access on a trail?, asked Peggy Rafus. It does, said Fisher. Anything to do with the trails and the highways is in the province of the Selectboard. To my knowledge, Halifax does not have a town trail policy. Some towns have trail policies that say we want trails to be hiking or biking trails, but not for ATVs. They may designate certain trails for ATV use and others for hiking. Are requirements for putting in culverts and cutting trees (in the right of way) on trails the same as on a regular road?, asked Peggy Rafus. On a town trail there is no duty of maintenance on the town side of it, said Fisher. It’s still a public right of way so if anyone on a town trail is going to be putting in culverts or doing work, they need the Selectboard’s authority, which usually means coming to a Selectboard meeting and asking permission. If it’s a town trail, it is up to the Selectboard to say whether the culvert needs to meet the State’s specifications or not.
Where does the liability fall?, asked Brad Rafus. If the landowner puts in a five-inch culvert and a car falls into that culvert, is the liability going to be with the town or with the landowner? Or what if the landowner is working in the right of way and injures himself? Fisher explained that if the town has given a landowner permission to work in the town right of way and the landowner gets hurt, liability is on the town. He told Rafus that if the town grants permission for a landowner to work within the right of way the town can require that person to carry insurance, and to sign a hold-harmless agreement.
Tristan Roberts: On the question of liability on a town trail; is it any different for a Class 4 road? If, for instance, a landowner put in a culvert and a car fell through, or the landowner spilled some oil while working on the road and someone slipped, compare and contrast those situations on a town trail versus a Class 4. Fisher explained that there is a separate section of the ordinance pertaining to bridges and culverts; there’s an argument that can be made that even though the town doesn’t have to maintain Class 4 roads it has to maintain bridges and culverts. That argument has not held a lot of water, especially recently; the courts have not required maintenance on old stone bridges. Referring to the oil spill example, Fisher said he thought there were the same liability issues on both town trails and Class 4 roads. In both cases you are trying to figure out who is at fault, the landowner or the town. Fisher also pointed out that the town and the state have sovereign immunity in liability situations involving public highways.
Cara Cheyette: I was in a similar, mirror-image issue last year; I wanted to preserve the privacy and quiet of my road, and in some ways it was sort of a dispute between two neighbors. One wanted to improve the road, and I was trying to hold it back. So I understand, everyone in this room is a taxpayer, and the people who are advocating for one or the other are taxpayers and members of the public. But there is a difference between the private interests and the public interest in a way. I get how somebody would want to hold tight to that privacy and quiet, but there’s this giving up of public property for private purposes. I was talking with Nancy and Diana on the walk; I understand the difference between horses and goats, and cows, but I was thinking, Tracy Reed is a dairy farmer, and he lives across Reed Hill Road, and walks his cows across Reed Hill Road, and up Hall Road. I was thinking, what if Tracy wanted to make that sort of a private pathway? Part of the wonder and beauty of living in Halifax is that sometimes I’m parked while the cows are passing. He walks them across Reed Hill Road, which is a major town road. There is something troubling about giving it up for private convenience. In the case of Hall Road, the argument was we’ve got two competing private interests, and the public good, as I understand the Board’s decision, was the opportunity to get some funding back from the State by improving the road. I would ask that the Board articulate where the benefit to the town would be in discontinuing this (Thurber Road), and, to the extent possible, to think clearly from the perspective of the town and not how to help two neighbors who may not see eye to eye resolve a private dispute. Cheyette went on to say she thought, from reading Selectboard meeting minutes, that Brad Rafus had dissented during the vote to hold the hearing; she asked why he might have had reservations about holding the hearing. I didn’t object to the hearing, replied Rafus; I objected to some of wording on how we were pursuing the issue. Personally, I would like to see one classification from the Class 3 part (on Thurber) to Green River Road, either one or the other, not a little piece this, a little piece that. That was my objection.
Tristan Roberts: That’s my position, that the trail/road in question should be considered one piece. I don’t have to make this decision; I respect that the road crew, Foreman, and Selectboard do a lot of work on these roads, have a lot of regulations to consider. I’m grateful that’s someone’s job, and I don’t have to do it. If it were up to me, I would keep it open, as one classification. There seems to be a theme that there are competing priorities here, and I’d just like to say I don’t see it that way. If I were painting a picture of how I see this road, and the daily level of traffic that comes through, and horses (I keep goats and sheep sometimes and have pasture on two sides of the road); I have a bucolic picture in my mind of everyone being able to farm easily, neighbors understanding each other and can cross roads easily, whether it’s livestock, emergency access, or people coming through. I’ve been on the land since 2005. When I first moved there the land was pretty vacant; same way with the Rays; it’s been vacant since Luther Ray died. The vacancy invites people looking to have their fun, drive their mud bikes, drink their drinks, have their campfires. Since I’ve lived there I know on a first name basis the people who run through, walk their dogs, people like Dan who come through on their ATVs. And Dan (addressing Lavoie), you’re kind of my friend, you’re welcome to come through, I like to see you guys. That’s my vision of the road; it’s a public amenity. If I could just snap my fingers and have a private drive that was my own and didn’t have to deal with the town—it has some benefits to it, but overall having that public access for emergencies, looking at it as a flat, closer connector to emergency services—I see a benefit to that for myself, for neighbors, and for the town. The vision that I hear from Nancy and Diana, of a quiet road where they can take their horses across the road easily, where not that many people come through, delivery trucks get lost occasionally; we try to flag them down and redirect them but you know how GPS is in this town. I don’t think our visions are that different, and I’m happy to turn this into a problem-solving discussion; what’s the best way to make everyone’s vision come to fruition more easily—I’ve heard some ideas around gating, water; we could have a barn-raising—put up a loafing shed. But I think there are a lot of shared values here that I want to go on record as being in favor of; that’s why I favor treating the road as one piece.
Hearing no further comment, Fisher asked Sumner if he wanted to close the hearing. The public hearing closed at 11:33 a.m.
Fisher advised those present that the Board would either deliberate today, after the hearing closure, or at another time. Within 60 days the Board will issue a written decision on the question of Thurber Road reclassification. Is that deliberation in executive session?, asked Chait. It’s a deliberative session; a little different from an executive session, but closed to the public, answered Fisher. Peggy Rafus said she would like to see the documentation for the classification of the beginning of the road (the Class 4 section). Fisher said he had not researched that; the Board could do so if they chose during deliberation, but depending on what the Board wishes to do it could be a moot issue. Mitch Green said the Board’s decision on reclassification should clarify that. No matter what it is now, going forward we’ll have clear classification and we’ll make sure that is properly filed.
Green made a motion to enter deliberative session, including Town Attorney Robert Fisher and Gabriel. Sumner seconded the motion, which passed, 3-0. The Board entered deliberative session at 11:35 a.m. and exited at 12:02 p.m., and the meeting closed.