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Waitsfield ponders jurisdiction in Fayston subdivision with Waitsfield access

01/12/07

By Lisa Loomis

Robin Morris' seven-lot subdivision was also the topic of discussion at the Waitsfield Select Board this week as board members tried to figure out the town's responsibility and authority with regard to a subdivision in a neighboring town that requires access through Waitsfield.

The Waitsfield Select Board is now seeking a legal opinion on whether the town has the jurisdiction to require a developer with a project wholly in an adjoining town to contribute to improvements to roads on the Waitsfield side of the town line.  
Robin and Jenny Morris are before the Fayston Planning Commission and Fayston Select Board with a proposal for a seven-lot subdivision on 169 acres of land accessible via two sections of Class 4 road. One section extends northwest from the Old County Road (Loop Road) in Waitsfield and the other stretch extends southeast from the Center Fayston Road in Fayston.

The Morrises also came to the Waitsfield Select Board, initially requesting permission to upgrade a portion of the Class 4 Old Center Fayston Road that is in Waitsfield so that it could support the traffic of a seven-lot development. The Waitsfield Select Board twice heard from a roomful of residents of the Old County Road who are concerned about the added traffic impact if the Morris subdivision is accessed via Waitsfield through the Old Center Fayston Road and the Old County Road.

Confused about where exactly the Waitsfield/Fayston town line is at the end of the Class 4 portion of the Old Center Fayston Road, the Waitsfield select board held a site visit there and discovered that the unimproved portion of the Class 4 road that they thought was in Waitsfield is actually in Fayston. Robin Morris initially came to Waitsfield seeking permission to upgrade Class 4 footage that he thought was in Waitsfield but which is in Fayston. There is still a .05-mile stretch of Class 4 road in Waitsfield that may need some improvement as well as a Class 3 portion of that road which runs from the Old County Road west.

At issue for the select board, according to town administrator Valerie Capels, is the question of whether Morris requires permission from Waitsfield at all and whether he has to upgrade portions of the Class 3 and 4 Old Center Fayston Road in Waitsfield.

"The town is still looking into that question. The board does not feel those parts of the road are adequate to serve the traffic from a seven-lot development," she said.

At the board's January 8 meeting, the board received a letter from Paul Gillies, attorney for the Morrises. Gillies notes that towns have a statutory obligation to maintain Class 3 highways to a certain standard because they receive state aid to do so.

Gillies notes that while Fayston can require that Morris upgrade the Class 4 portion of the Old Center Fayston Road that lies in Fayston, it would be an "enlargement of Fayston's authority beyond what is granted by law. Fayston has full power to require improvements to its own highways as a condition of a subdivision, but its authority ends at the town line," Gillies wrote.

Robin Morris, in a letter to the select board, writes that regardless of the legal opinion rendered by Gillies, he (Morris) recognizes that the development will have an impact on the Class 4 road in Waitsfield and that it may require improvements. He offered $2000 towards those improvements.

"I'd like to have Waitsfield and Fayston and the Morrises contribute to fixing the road up from the Fayston town line to where it intersects the Old County Road," said select board member Charlie Hosford.

"It sounds like, to me, from Gillies letter, that they don't have any obligation," board member Paul Hartshorn responded.

"We're going to absorb the impact from that development and somehow we're going to have to upgrade it. I think it's a great thing to have the developer offer us some money to improve that section," Hosford said.

"Gillies letter is just one man's opinion and his opinion is going to be slanted towards his client. I think a phone call to our attorney would help up figure out where we stand in terms of what our options are and I think it makes sense to ask our road commissioner and foreman to come up with an estimate of what it will cost to make that road function," board chair Elwin Neill Jr. said.

"We can't refuse them access to that road, or can we? They got a right to come down through there," said board member Hartshorn.

"I can't see legally what we're stumbling over," Hosford said.

"This question is going to come up again. I think we need to know, does the town have any real input into this. Does Waitsfield have a right to ask a Fayston developer who wants Waitsfield access for help with the road? I don't see why one town should have to absorb all the cost of a development while reaping none of the benefits," Neill said.

"Our job is to get the person causing the increased costs to our taxpayers to improve that road because that development will have a totally negative impact on all the intersections it crosses. What's the benefit to Waitsfield taxpayers?" Neill asked. 

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