Ferrisburgh and farm court-bound over tree cutting

FERRISBURGH — After 21 months, the dispute between the town of Ferrisburgh and the owners of the Vorsteveld Farm over clear-cutting trees along Arnold Bay Road appears to be heading to court.
The Ferrisburgh selectboard and tree warden Clifton Mix have maintained the farm needed a permit to work in the town right of way before they hired a contractor in April 2017 to remove 0.75-mile of trees and shrubs along Arnold Bay Road’s east side.
The Vorstevelds maintain they own the land up to the middle of the road and have a right to do as they please with their property. They are in the process of installing a tile drainage system on the fields to enhance the land’s ability to support corn crops.
Many of the trees that were removed formed a canopy over the road, and neighbors have complained to the town about the loss of that canopy and the creation of drainage problems after the trees and hedgerow were removed.
The stretch in question runs from the Panton town line up to where Arnold Bay Road — which runs parallel to and near Lake Champlain — ends on Button Bay Road.
After a Tuesday closed-door session the selectboard confirmed a Jan. 8 vote to file a complaint in Addison Superior Court that the Vorsteveld Farm violated a Vermont law that states landowners may not cut trees in a town right-of-way without first receiving permission from a town tree warden.
According to that law, the fine is up to $500 per tree for “any person who willfully critically injures or cuts down a public shade tree without written permission of a tree warden or legislative body of the municipality.”
In May 2017 Mix wrote a letter to the three brothers that own the farm saying they could technically be fined up to $1,088,000 for cutting down 1,870 trees and shrubs with trunks of less than six inches in diameter and another 306 trees with larger trunks.
Mix wrote that the Vorsteveld Farm should be fined and required to fix the damage.
Farm co-owner Hans Vorsteveld has told the Independent the work was done to remove what he called an “overgrown hedgerow” along that side of the road. He said the finished product would look attractive and hoped that town officials and neighbors would appreciate its appearance.
Vorsteveld also said he and his brothers Gerard and Rudolf, whose farm contains more than 2,000 acres in Panton and Ferrisburgh, were simply making improvements to better farm the land and did not believe their use of their property interfered with the town’s right of way.
Mediation between the parties failed to produce a result. After mediation sessions in early 2018 the farmers removed more trees this past spring, a project Hans Vorsteveld referred to at the time as “finishing the job.”
Still, this past fall the town granted the farmers a permit to work in the right of way along the road to further their drainage project. In that permit the farmers agreed to comply with a ditching and water management system proposed by Ferrisburgh road foreman John Bull.
But further talks went nowhere, according to Ferrisburgh selectboard Chairman Rick Ebel, and neighbors continued to lobby for action. Mix and a horticultural firm also came up with a remediation and replanting plan that the town suggested the farmers pursue as a resolution to the dispute. Ebel said the town was turned down.
Ebel said with that option off the table and with mediation having been unproductive, three of the five selectboard members voted in favor of legal action this month.
“The Vorstevelds violated that law, and that’s why we’re pursuing it, given that we made an effort to mediate and remediate the situation without having to take these steps, and that failed,” he said. “The town’s interest is there is a law. And maybe it’s an old law. And given that we’re a community of all manner of people and residents, we all need to respect those laws. It’s not just for one person and not another. And I think ultimately the vote that was in favor of pursuing this was based on that.”
The board would still be happy to sit down with the Vorstevelds and discuss a resolution, however.
“At this point we’re not hearing and seeing any other avenue. But if the Vorstevelds wanted to sit down and talk again about the situation we’d be happy to do that,” Ebel said.
But Hans Vorsteveld said this week discussions were unlikely.
“I’m not going to waste any more time on it,” he said.
Vorsteveld was asked further if that meant that he expected a court date.
“Yup, and see what happens,” he said.
There are laws that appear to conflict about the situation. In his only public comments on the situation, Ferrisburgh town attorney James Carroll said he was “optimistic,” but acknowledged to residents that the law and related statutes have not been tested in court.
“These statutes are very open-ended. There is not a lot of case law that has been developed around them,” he said, adding that the statutes “have gray about them.”
For example, one statute, 19 V.S.A. No. 901, refers to “Removal of roadside growth.” It reads, “A person, other than the abutting landowner, shall not cut, trim, remove, or otherwise damage any grasses, shrubs, vines, or trees growing within the limits of a State or town highway, without first having obtained the consent of the Agency for State highways or the selectmen for town highways.” (Italics added.)
But 19 V.S.A. No. 1111 reads in part: “Permits must be obtained by anyone or any corporation wishing to use as described in this section any part of the highway right-of-way on either the State or town system.” 
One certainty is that legal fees are not cheap. As of October Ferrisburgh had spent $16,642 on the case, and the meter has run at times since then.
Ebel said the selectboard wants to “keep the costs down as much as possible,” but the board’s proposed 2019-2020 budget sets aside $10,000 for legal fees.
“We know that is going to cost us … It’s not carte blanche, nor have we limited it at this point,” he said.
And Ebel noted the vote was not unanimous: voting in favor of legal action were selectboard members Ebel, Jessica James and Michael Muir; Selectman Selectmen Jim Benoit and Steve Gutowski voted against legal action.
“I know from previous conversations Jim was concerned about costs, and is concerned the outcome may not change anything except the town and the other party will have spent a lot of money on attorney’s fees,” Ebel said.

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