The Litchfield County Times has a story today about a federal lawsuit brought against the Town of Sharon, Connecticut by a land owner concerned about unauthorized vehicular use of a public access easement that enters her property. At issue is a former Town road that was discontinued in 1993, moving into private ownership by abutting landowners but with the Town reserving "the right to use the road as a recreational path for pedestrians, bicycles and horses." There was a subsequent sale in 2003 of one of the properties along the discontinued road to the plaintiff in the suit, who according to the article was fully aware of the easement at time of purchase and has built a new residence there.
Apparently there were vehicles using the discontinued road to remove stones from walls on the property and the landowner erected a gate with the authorization of the former 1st selectman. Two residents who were subsequently unable to ride their horses on the recreational easement complained to the current 1st Selectman, and despite efforts to resolve the problem informally the issue has reached an impasse and now the Town, the board of selectmen and three members of the board both as individuals and town officials are named as defendants in a federal lawsuit. According to the news article;
"The suit claims denial of procedural due process and of substantive due process, as well as a non-federal claim concerning the maintenance of easement."
While making a federal case of it is rare in our area, conflicts between private landowners and local boards and commissions over procedural issues are far more common. So, too, are issues pertaining to decades old easements. They stay in place when land changes hands, frequently contain ambiguous wording, and often have been inconsistently monitored by the easement holder. Municipal easements are especially problematic, and often lack proper documentation. I am aware of some "conservation set-asides" accepted on paper in subdivision plans before land use commissions and never formally accepted by the municipality. Conservation easements held by conservation non-profits can be held to the standards set by the Land Trust Alliance, though these, too, range in quality, stewardship, and legal monitoring.
The landowner in this case believes that the Town has an obligation to maintain its recreational access easements and has failed to do so. Depending on the wording of the retained rights, that may or may not be true. This is a valid concern for private landowners, who often must accept public access as a condition of their voluntarily placing a conservation easement on their property. Our family is in that situation with the sale of a conservation restriction over 2/3 of our land in Wareham, MA, and we spent a great deal of time in negotiating the easement terms addressing the potential negative impacts of public access. I would suspect that the decision to discontinue the local road with the Town retaining recreational access rights did not involve such legal language. In cases like this, it usually turns out that the Town decision to retain the ROW easement when the road was discontinued was probably made during a session of the board of selectmen and is reflected in the minutes and subsequent deed transfers but without other easement language relating to stewardship, monitoring, and rights and obligations that are customarily addressed in conservation easements granted by private landowners to conservation entities. If I am wrong about this, then perhaps the landowner has a case concerning the maintenance of the easement, but my guess is that the Town has no legal obligation to do so because the language establishing the easement is likely to be quite sparse.
As for the questions of due process, volunteer boards and commissions are vulnerable here, whether or not their behavior falls to the level of being "unreasonable, arbitrary and capricious and a gross abuse of governmental authority" as this federal lawsuit alleges. I have no idea if these charges have merit in this case, but I have certainly witnessed behavior that fits this description in other places. Usually, though, the errors made are those of well-meaning amateurs. I take my hat off to any citizen willing to serve on a town planning and zoning board, as you are guaranteed to have people mad at you at every meeting.
Small towns do not have the resources to defend themselves against well financed lawsuits and sometimes landowners use the threat of litigation to force a community to back down. The very best advice I can offer to those who grant or accept easements it to get the language right from the start and do not skimp on the legal documentation and monitoring. These things are perpetual, and forever is a long time.
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