John Echeverria, of Strafford, speaks during an editorial board meeting in West Lebanon, N.H., in May 2018. File photo by Geoff Hansen/Valley News
This story by Frances Mize was first published in the Valley News on May 27.
TUNBRIDGE — This spring, Tunbridge trail volunteers were inspecting Orchard Trail, favored by bicyclists, before its reopening for summer use. They found their way barred by downed trees.
On May 14, the Tunbridge Selectboard unanimously passed a motion giving the town’s highway crew permission to cut the trees when ground conditions improve.
The board’s decision, however, could throw a wrench in an intractable legal dispute.
With Vermont’s highest court about to hear the case that has pitted the town against a private landowner, the status of the hotly contested trail remains in limbo.
John Echeverria and Carin Pratt have owned the 325-acre Dodge Farm, a former dairy farm at the top of Strafford Road, since 2015. The couple lives in nearby Strafford and rents the property to a Tunbridge resident.
They argue the Selectboard lacks the authority to maintain or designate appropriate use of legal trails in town. The couple takes particular issue with bikes on Orchard Trail, a three-quarter mile path running through their property that had become a popular cycling thoroughfare.
Tunbridge officials refute the claim, asserting that legal trails, which are reclassified town highways, are akin to roadways and can be maintained as such.
On Wednesday, the state Supreme Court will hear oral arguments in the case.
Echeverria and Pratt have twice brought their suit against the town to Vermont Superior Court, only to be rejected by Judge Elizabeth Mann for lack of “ripeness.” In legalese, ripeness refers to whether the facts relevant to a case are sufficiently developed for a court to intervene.
In her most recent ruling last December, Mann wrote “mere fears that the town may one day seek to maintain the trails on the Dodge Farm are not sufficient.”
But the blown-down trees now blocking the trail have provided an opportunity for those “fears” to become reality.
“I’m speaking solely for myself; I’ve been sick of this situation a long, long time,” said Selectboard Chairman Gary Mullen. “Sometimes you’ve just got to pull the trigger and do something, whether it’s right or wrong. I would have cut the trees a long time ago.”
Even before making it to Vermont courts, the dispute had a hefty paper trail. For two years, the issue was a topic of much discussion at Selectboard and Planning Commission meetings, leading to the creation of the Tunbridge Trails Committee. But that wasn’t enough ultimately to stave off litigation.
Although the case has been dismissed twice, town officials are still waiting for a court to rule on whether they are authorized to maintain Tunbridge’s trails. If the town cleared the trees currently blocking the trail, it could change the lack of ripeness that led to the case’s dismissal in the first (and second) place. In an April email to the Trails Committee, Echeverria and Pratt wrote, “Hopefully soon, the courts will resolve the legal dispute over trail maintenance and repair authority.
“In the meantime,” the couple added, “we would be happy to resume maintaining and repairing the Orchard Trail, including removing downed trees and branches obstructing use of the trails, and embrace use of the trails for all manner of pedestrian activity and horseback riding, if the town can see its way clear to an agreement to reroute bicycle traffic around our farmyard.”
Echeverria, a professor of property law at Vermont Law and Graduate School, maintains the town “has planted a flag, so to speak, in asserting that they have the authority to enter onto our property for the purposes of doing trail maintenance.”
In an interview with the Valley News, Echeverria said the “mere assertion of a legal entitlement to enter onto the property of another creates a ripe claim.”
“When we filed the lawsuit it was obvious, and now months later it’s overwhelmingly obvious, that it can be reasonably expected of the town to invade our property and injure our interest,” he added.
The couple’s first declaratory judgment action was filed in an attempt to initiate “a quick and painless legal resolution for an issue that has divided the town and Carin and myself.”
Town officials, Echeverria said, thought that if they continued to oppose the case, “then we would give up on defending our private property rights.”
“And the town thought wrong,” he said.
Tunbridge has spent $33,000 on legal fees in the case to date, said Mullen, the Selectboard chairman.
“I get bewildered at his logic sometimes,” Mullen said of Echeverria. “We, the town, know that we have a legal trail, we know by statute that the Selectboard can restrict anyone or everyone from the trail if need be, and because of that, just like a road, we have the right to maintain it if we want to maintain it.”
If the Selectboard had conceded to Echeverria in the earliest days of the dispute, when it was only a dust-up, “we could have solved this thing,” he said. “But what John wanted was for us was to give up Orchard Trail, and we don’t want to do that because it’s ours.”
It could be upwards of six months before the Supreme Court hands down its decision.
“So that’s why we’re deciding to cut some trees,” Mullen said.
Read the story on VTDigger here: Vermont Supreme Court to hear Tunbridge trails case.