Carter engaged Attorney Lauren Kolitch after an attorney for the town issued an opinion that the path that connects the Brook Road to the Warren School could be considered a public right of way.
Following this week's executive session, select board chair Burt Bauchner said that since litigation is pending between the town and Carter the town will no longer discuss the matter publicly from "this point forward."
According to state statute 1 V.S.A. § 313, select boards may enter into executive session for mediation, arbitration, civil action, contracts, real estate transactions, employment/employee issues, discussion of documents not available to the public, or in a situation of clear and imminent peril to the public safety.
In cases of civil action, arbitration, mediation, etc., the law requires that the board conclude that "premature general public knowledge would clearly place the state, municipality, other public body, or person involved at a substantial disadvantage" before voting on executive session.
No action, apart from the aforementioned written correspondence between Kolitch and the town, has been taken; no filings have been made on Carter's behalf, despite Bauchner's statement Tuesday evening that the town "is going to court."
Carter engaged Attorney Lauren Kolitch following the August 11 meeting when Warren Attorney Paul Gillies' letter was discussed among select board members. Gillies' letter asserted that the path has been a public right of way since the 19th century.
In July, town officials informed Carter that they intended to hire a surveyor to come onto her property in order to prepare a record map of the right of way for filing in the town land records.
The path in question connects the lower portion of Warren Village to the Brooks Field and crosses Carter's private property. Carter closed the path by posting no trespassing signs earlier this summer because trees were cut without her permission and litter was found throughout.
Carter explained her stance on the path at a well-attended public hearing where several residents and Warren School parents apologized for using the path without permission and made a case for its continued public use.
The path remained closed during the most heavily used time -- Fourth of July weekend.
Following the August 11 meeting, Kolitch issued a letter to the town pointing out that her client "does not adopt Attorney Gillies' opinion."
The Gillies opinion traces the land records and deeds for the Carter property from 1858 to the present, concluding "My research shows it is a public right of way -- not a road in the formal sense, because it was not laid out as a highway by Warren selectmen -- and that there is no evidence of any discontinuance or abandonment in the land records."
Gillies also maintained that there is deed language that allows access to the land where the Warren School is, and referred to that access as a road or highway.
"A right of way, as opposed to a highway, is not discontinued. It can be abandoned, if subsequent owners treat it as such, or more certainly, if it is closed off and unused for a period of 15 years. Land records cannot show that, but the persistence of the references to this right of way through deeds leading up to the 1961 purchase of the land of Divoll by the town of Warren strongly suggests no interruption in the legal existence and use of this lane from the time of its creation in 1858 to the present," Gillies concluded.
Kolitch strongly disagreed and in an August 12 letter advised the town that Carter would not allow surveyors on the property.
"Absent court order otherwise, my client disputes that the town or any other entity or individual has the right to enter upon or in her property in Warren Village," Kolitch wrote.
"Under no circumstances is the town authorized to enter upon my client's property for any reason, including the 'installation of a fence.' Ms. Carter's property is posted. No member of the town may enter upon the Carter property absent express written authorization to do so," Kolitch concluded.
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