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Vorstevelds challenge Ferrisburgh road right-of-way

FERRISBURGH — Court documents filed at the end of May by Vorsteveld Farm LLP in Addison County Superior Court’s Civil Division assert the trees the town of Ferrisburgh contends that the farm removed illegally in 2017 and 2018 were not in the town’s road right of way and were thus not subject to town oversight.
In all, Middlebury attorney John M. Mazzuchi, with the firm Lynch and Foley P.C., filed three motions to dismiss the suit filed earlier in May by the town of Ferrisburgh against Vorsteveld Farm LLP for clear-cutting trees and a hedgerow along the east side of Arnold Bay Road.
Ferrisburgh maintains the trees were public shade trees in the town’s road right of way, but Mazzuchi cites a 1793 survey as well as a law that would cut in half the size of the town’s right of way — from six rods to three rods — if the exact location of the road cannot be determined.
Mazzuchi’s first sentence of the introduction to the first motion reads: “Simply put, the Town is persecuting Vorsteveld Farm LLP (“Vorsteveld”) for lawfully removing wild vegetation from its own property.”
Among the few facts the parties do not dispute are that Vorsteveld Farm LLP, owned by brothers Hans, Rudolf and Gerard Vorsteveld and based largely in Panton, owns 169.1 acres along Arnold Bay Road and hired a company to clear vegetation along 3,550 feet of the road’s east side. A contractor did most of the work in the spring of 2017, and the farmers had more trees removed in 2018.
Over the past two years neighbors have flocked to meetings to lobby the selectboard to act to force the farm to replant trees. Members of Ferrisburgh’s farming community support the Vorstevelds and have spoken out about what they call a property rights issue.
Central to the town’s legal case is that the town road has a six-rod right of way that is 99 feet wide, and thus the trees that were removed were under its control.
The town’s suit, filed on May 8 by attorney James Carroll of Middlebury, lists under “Applicable Statutes” 24 VSA, Chapter 67, known as the “Shade Tree Statute.”
According to Carroll the statute places the trees “under the control of the tree warden,” and he also cited 19 VSA, No. 1111, which “requires persons wishing to use the public right-of-way to obtain a permit prior to use.” A permit process would have included a public hearing that would have allowed neighbors to have a say. He wrote the trees were “within the six-rod public right-of-way.”
The town lawsuit seeks court orders to impose a $500 fine for each tree cut, a sum that could technically exceed $1 million; judgments confirming the tree warden’s authority over shade trees within town rights of way, and specifically on Arnold Bay Road; injunctions prohibiting the Vorstevelds from removing trees elsewhere or interfering with restorative work by the town on Arnold Bay Road; and court and attorney’s fees.
THREE RODS OR SIX
One of Mazzuchi’s three motions, however, cites “19 VSA, section 32” in claiming the road right of way is three rods, not six. A rod equals 16.5 feet; three rods is 49.5 feet, and six rods is 99 feet.
Half of a three-rod right of way from the center of Arnold Bay Road would thus be about 25 feet, not the almost 50 feet that a six-rod right of way would grant the town.
That statute reads: “A roadway width of one and one half rods on each side of the center of the existing traveled way can be assumed and controlled for highway purposes whenever the original survey was not properly recorded, or the records preserved, or if the terminations and boundaries cannot be determined.”
Mazzuchi then cites the 1793 survey that established Arnold Bay Road. It is also important to know in reading the survey a “chain” is a unit of measurement that equals 66 feet.
He writes, “The 1793 survey describes Arnold Bay Road as ‘beginning at a large single pine tree standing in the road on the line between Panton and Ferrisburgh about 8 or 10 chains (Note: 528 to 660 feet) East from the lake shore.”
Mazzuchi adds, “Without the large single pine tree described by the 1793 survey, it is impossible to locate Arnold Bay Road’s point of origin in the present day, and as a result it is impossible to determine the precise boundaries and the course of the road,” therefore “the highway is assumed to be three rods wide.”
Claiming elsewhere other residents have removed vegetation from within rights of way without facing town action, Mazzuchi writes, “The Town’s requests for relief are motivated by animus against Vorsteveld and were asserted against Vorsteveld without a good faith basis in law.”
He seeks from the court a declaratory judgment that Arnold Bay Road is three rods wide, attorney’s fees, and “other and further relief.”
In the other two motions Mazzuchi makes a number of arguments.
He calls the vegetation a “large wild hedgerow” that “had been growing since the mid-1970s.”
But according to a letter written by Ferrisburgh Tree Warden Clifton Mix, 1,870 trees with a diameter of less than six inches were removed, and 306 trees with a diameter of more than six inches were removed.
Elsewhere Mazzuchi states, “Tellingly, the town does not allege that it — or indeed any person — deliberately planted the trees … or that the trees were intended at any time to provide shade.”
In Carroll’s May 8 filing he cited several provisions in the Shade Tree Statute, one of which states, “Shade and ornamental trees within the limits of public ways and places shall be under the control of the tree warden.”
Carroll also cited 19 VSA 1111, a permitting statute that he said gives the selectboard the “authority and duty … to make compliance with the requirements of the Shade Tree Statute a condition of a permit to conduct work within the public rights-of-way.”
Unless a settlement is reached or a judge does issue a summary dismissal, a decision in the case is probably many months away.
Andy Kirkaldy may be reached at andyk@addisonindependent.com.

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