Jefferson road condemnation pits town against property owners

Suzanne Hamilton's house, well and driveway are within the nearly 50-foot easement the town of Jefferson took along Goose Hill Road.
Stephen Betts | BDN
Suzanne Hamilton's house, well and driveway are within the nearly 50-foot easement the town of Jefferson took along Goose Hill Road. Buy Photo
By Stephen Betts, BDN Staff
Posted March 17, 2013, at 11:51 a.m.

JEFFERSON, Maine — The town said it needed to acquire a nearly 50-foot-wide easement along Goose Hill Road to maintain the travel way.

Two residents, however, claim that that the town’s seizure of their land was not necessary and that town officials have not been responsive to their concerns. One owner said she had to take legal action to protect her interests and the other said she is mulling her options.

Property owner Victoria Burbank said she was not happy with the results of Saturday’s gathering in which she was told that about 10 of her trees will be removed, other trees will be trimmed, and that the fence on one side of the road will have been to moved about 6 feet away from the road at her expense.

Veteran selectman James Hilton said the town has been concerned about its ability to maintain the road for more than 20 years.

Burbank said she has been fighting the town for years. She said she obtained an attorney four years ago who showed that the town did not have a legal right to do anything on her property.

Last year, town officials put out a referendum question to residents about whether to condemn Goose Hill Road to allow the town to have an easement three rods, or 49½ feet, wide. The town claimed that the town already had such rights but that it has somehow been lost in record-keeping over the past century or so.

The referendum said that the town would not compensate landowners for any loss of property.

The question was approved 751-672.

Two residents, however, had fought the move. Burbank and Suzanne Hamilton were opponents to the referendum.

In Hamilton’s case, the town’s easement would have extended into half her house, her entire driveway and her well.

Hamilton sought legal advice and received the pro bono assistance of attorney Charles Katz-Levy of Portland through the legal aid for seniors program. The attorney filed a lawsuit against the town but the two sides settled before it went to mediation. Selectmen voted March 11 to approve the agreement.

The agreement calls for the town to waive its right to her land other than along the roadway.

The attorney said it is not unusual for towns to use condemnation orders to acquire easements along roads. He said towns are required, however, to have a public purpose for the taking of land such as the need to maintain it for the safety of school buses, ambulances and fire trucks. And government must pay just compensation, he said.

The agreement he reached with the town allows the town to have the easement but stipulates that it will not affect her house, driveway or well. Otherwise, he said, the easement would have taken the total value of the property.

The property has been in Hamilton’s family since 1928 and is where the retiree said her grandmother raised her mother. Hamilton moved back to the home in 2008 to care for her mother, who has since died.

Hamilton said she is happy with the settlement and praised the work of Katz-Levy, but said it had been frustrating dealing with the town. She said the town had not been forthcoming in some of its actions.

“Transparency is absolutely necessary to best serve the citizens,” Hamilton said.

Hamilton said until she got had an attorney working on her behalf town officials were not listening. She said she understands the frustrations of Burbank.

“It’s like I told her, she was one woman standing up for her property and I was one woman standing up for my property,” Hamilton said.

Burbank was standing up to the road commissioner and selectmen on Saturday morning but they stressed that what they were doing was necessary to preserve the road and for safety of residents.

Road Commissioner Alan Johnston said ditches need to be dug on both sides of the road along Burbank’s property. He said when it rains heavily, the edges of the pavement are washed away and the ditches are needed to prevent that from happening.

Burbank owns the land on both sides of the road where she raises horses and plans to operate a business in which she gives riding lessons when she retires from teaching. She voiced concern that the work would pour water, from homes built on the road above her property, on to her fields and woods.

Johnston said the work would not result in more water than would normally flow on her property.

He said about 10 trees will need to be removed on one side of the road to make way for a ditch.

On the other side, he will be trimming tree branches back three feet from the paved roadway. He said this was necessary because they extend to the roadway and the mirrors of school buses have hit them.

The road commissioner also said a fence that Burbank has one side of the road will have to be moved, at her expense, for the ditch on that side.

Burbank said she did not see why she had to pay for the relocation when it was being required by the town.

The town officials said it was because the fence was within the town’s easement.

She questioned why the town said it wanted to hear her suggestions on how the road can be maintained with as little impact to her property as possible but then dismissed all of her suggestions.

Town officials said that no one other than Burbank and Hamilton have opposed the easement.

Burbank disputes the town’s claim that this road was initially laid out as a three-rod road. She said when she first moved to the property in 1978, the road was dirt and there were no homes beyond her property. She said the road was basically her driveway.

She also said the fact that the state constructed a new one-lane bridge on Goose Hill Road last year supports her contention. She said the state did not extend it more because it did not have any right to more than the one lane, thus showing there was no three-rod road approved there previously.

Burbank said in 2009 she hired a lawyer when the town was planning to do similar work on her property. She said the attorney found the town had no right to her land.

Last year when selectmen put the question out to voters, they maintained the town did have the right but that the condemnation order was needed to correct a defective title and again argued that the records had been lost over time.

Both Burbank and Hamilton said the referendum should have only been put to residents of Goose Hill Road and not the entire town.

Burbank and Hamilton said she they have gone public with the issue because they want other people to realize how the town has treated them and how government can take someone’s property.

Burbank said she will be attending a paralegal class next month on easements and will consider her next step.

CORRECTION:

An earlier version of this story incorrectly stated who was going to be taking the paralegal course. Burbank will be taking the course.

http://bangordailynews.com/2013/03/17/news/midcoast/jefferson-road-condemnation-pits-town-against-property-owners/ printed on August 23, 2014