VERMONT BAR ASSOCIATION

Noon Hour CLE

June 8, 2006

Subject: H.701 – An Act Relating To Unidentified Corridors

Presenter – Stephen W. Kimbell, Esq.

Introduction

Aggressive research at the town level has revealed the existence of many abandoned and invisible municipal rights of way that were legally created at some time since the late 1700s but never discontinued in any legal way. Because legal theories of abandonment and adverse possession do not apply to government entities, these municipal rights of way still belong to the towns in which they lie, notwithstanding the fact that they are not discoverable through a normal title search.

This state of affairs has generated litigation in Vermont courts between towns asserting their ownership rights to these “ancient roads” and property owners who have relied on traditional title searches to establish their right to the quiet enjoyment of their property.

H.701, passed by the Vermont General Assembly and signed by Governor James Douglas with an effective date of July 1, 2006, is an attempt to eliminate the source of these disputes by requiring all municipal rights of way to appear on official and publicly available maps by July 1, 2015. The transition between July 1, 2006 and July 1, 2015 is the tricky part of this legislation.

A link to H.701 as signed by the Governor is: http://www.leg.state.vt.us/docs/legdoc.cfm?URL=/docs/2006/acts/ACT178.HTM

The bill amends chapters 3 and 7 of Title 19, Vermont Statues Annotated.

Summary of H.701

· Creates new classification of town highway called “Unidentified Corridors,” defined as town highways that 1) were legally created at some time, 2) do not, as of July 1, 2009, appear on the town highway map filed with the state Agency of Transportation, 3) are not clearly observable by physical evidence of their use as a highway or trail and 4) are not legal trails.

- This means that towns have three years to add invisible town rights of way to their maps as class 4 highways or trails without paying damages to the affected land owner.

· After July 1, 2015, all unidentified corridors that have not been reclassified as class 1,2,3 or 4 highways or as trails are discontinued.

· Unidentified corridors are open to public use, but only in the same manner as they were used during the 10 years prior to January 1, 2006. This means that the status quo will be preserved for property owners whose land is crossed by an unidentified corridor unless the town maps the unidentified corridor as a class 4 road prior to July 1, 2009, or reclassifies the unidentified corridor, with damages, between July 1, 2009 and July 1, 2015.

· Between July 1, 2009 and July 1, 2015, unidentified corridors that have not been mapped as class 4 roads (including trails) or better cannot be reclassified without use of currently existing necessity and damages proceedings.

· By July 1, 2015, all class 1,2,3, and 4 town highways and trails must appear on the town highway map filed each year with AOT. The agency is required to send to each town a copy of its approved map showing all highways in the town. Transitional provision requires towns to make final submissions to AOT by March 15, 2014.

· Forty-five days’ prior written notice and an opportunity to be heard at a duly warned meeting must be given to land owners through whose lands an unidentified corridor passes that the town intends to add to its map as a class 4 highway (including trails) or better.

· On or before July 1, 2009, selectboards may vote a blanket discontinuance of any town highway not appearing on their map filed with AOT for that year. Exercise of this authority is subject to extensive public participation requirements.

· Procedurally defective discontinuances are ratified if the highway has not been maintained for 30 or more consecutive years. Inadvertent land locking of a parcel is avoided by granting a private right of way.

· State grant money is made available to towns for the purpose of researching and mapping town highways, trails and unidentified corridors.

Conclusion

Successful implementation of H.701 will require the exercise of good judgment and common sense by selectboards that decide to add unidentified corridors to their town maps and to reclassify them. The period between July 1, 2006 and July 1, 2009 will be a period of extreme uncertainty for title searchers and title insurers. Between July 1, 2009 and July 1, 2015, the climate will improve somewhat because necessity and damages provisions will apply to reclassification of unidentified corridors. After July 1, 2015, a final map showing all town rights of way should be available to title searchers in all town offices.