Dispute over Morningside Drive access permit grows more complicated

A highway access permit (HAP) application is a routine step for property owners who want to build a driveway. In the case of one such permit application this summer, filed by Megan Browning and Will Bown, there have been more than your usual number of snafus, lawyers attending Selectboard meetings, a Vermont Supreme Court decision is in the mix, and the Selectboard has dedicated hours to the matter. And it’s not over yet.

HAP 20-03 was filed by Browning and Bown on June 4 to access their five-acre property on Spear Street via Morningside Drive, which they purchased in January of this year. Along with the application and a site plan, town records show Road Commissioner Jr Lewis’ notes that accompanied the application: “Trees to the west should be cut for site distance 1 boxelder and 1 clump basswood trees include cutting brush.” Also, in the section for culvert requirements, he described Morningside Drive as “town class 3.”

Fast forward two months, two official site visits and several Selectboard meetings later, and this HAP, though it was actually approved at last week’s Aug. 10 Selectboard meeting, has stirred up a controversy that doesn’t seem to be going away any time soon.

Bown and Browning’s property abuts Morningside Cemetery, a nonprofit, privately owned burial ground that is an active cemetery and is one of the oldest still-operating cemeteries in the state. It is maintained by a board, the Morningside Cemetery Association (MCA), made up of Charlotte residents Nancy Richardson (who reports on education for this newspaper), John Quinney (who is on the board of this newspaper), Sheila Burleigh, Cyndy Marshall and Janice Garen. Richardson’s husband, Peter Richardson, is an advisor to the board.

Nancy Richardson said in the Aug. 10 Selectboard meeting that before the initial permit hearing, she encountered Bown’s father, Eric Bown. He was removing trees; some of those trees, she said, were on the cemetery’s property.

In last week’s Selectboard meeting, she alleged that Eric Bown told her that Lewis and Town Administrator Dean Bloch told him that he could go ahead and start tree removal. Regarding himself and Browning, Will Bown said in an email to The Charlotte News,“We take full responsibility for the removal of these trees. Also, there was no one in the town that allowed us to start without the appropriate approvals, that was entirely our mistake.” He also said that the trees were not on cemetery property.

“The four trees that were removed were on the Town right of way; the complete tree and stumps were removed, so we feel obligated to the town for that. I had an initial phone conversation with the tree warden following our mistake; and on June 22 Megan and I showed the tree warden the trees (which we saved for his viewing and had hauled over to our building lot).” He said he intends to follow any recommendations from the tree warden regarding compensating the town for those trees.

The Selectboard remains firm that the tree removal is not within the board’s purview to settle in any way—Selectboard Chair Matt Krasnow has repeatedly said that whether or not the removed trees were on cemetery property, that has no bearing on the HAP and is a “dispute between neighbors” and irrelevant to whether or not Bown and Browning are legally allowed to build a driveway there.

Peter Richardson said in a phone interview that it is still a problem for the cemetery association. “The exquisite part of this cemetery is how it is secluded, this wonderful sylvan setting, and along comes this huge disruption that was exacerbated early on because the applicant got prematurely involved doing demolition.” When asked whether the continued protest of the HAP is because of hard feelings about the trees, Richardson said, “Oh, I don’t know that that kind of speculation is really necessary at this point.”

The problem with disrupting the setting, Peter Richardson said, began long before Bown and Browning got involved; in 2009, the Kaplans, the previous owners of the property, also received permission for a subdivision and a HAP for that location and the MCA was not notified then, either, about the situation. “The notice requirement was not properly followed, the cemetery association didn’t know in 2009, and we didn’t know in 2020,” he said. “There’s been contrition on that…and not questioning the genuineness of that, but that was a big, bad, way to start this conversation.”

At the July 13 Selectboard meeting, once the tree issue had been temporarily put to rest, the MCA was concerned that culvert placement under the new driveway would adversely affect the cemetery land, which, Lewis said at that time, was not only unlikely, but more likely that the new culverts would help the water drainage situation. It also came out at that meeting that the class 3 road was the town’s responsibility to maintain.

Bown and Browning will pick up the cost for any culverts or land adjustments. “We offered to pay the town for the materials to restore the roughly 70-foot section of Morningside to class 3 road because it was a cost we originally anticipated we’d have to cover as part of our original highway access permit,” Bown said.

To ensure that the job was done properly and the MCA’s concerns were alleviated, the town arranged for Jessica Louisos, an engineer from Milone & MacBroom, to visit the site twice and make stormwater management recommendations, the implementation of which should alleviate stormwater issues.

Then at the Selectboard meeting on Aug. 10, a third issue took the mic. The MCA asserts that Morningside Drive is not, in fact, a town road, and that therefore no further site work should be done, though the HAP was approved, until the town resolves the issue of whether or not that roadway is owned by the town or is private property.

Nancy Richardson, speaking on behalf of the MCA, said at the Aug. 10 meeting that the association is not convinced that the road actually belongs to the town, because the town bases that assumption on a 1991 survey, which relied in part on an 1864 Selectboard conversation on the record regarding roadways. Though she did not note the particular case or law, Nancy said, “The Vermont Supreme Court in 2015 ruled that such an old survey cannot be used for this purpose in absence of other documentation.”

This brings up the question: to whom does this road belong? Is it a town road, as the town has assumed for over a century, or is it private property? Bown maintains that Morningside Drive is the only point of entry to his property; Peter Richardson said he believes there are other, better access points. At the moment, however, Krasnow wrote in an email to the News that to his knowledge, no one has filed an appeal regarding the HAP at this point.

Peter Richardson said that the MCA’s desired outcome is a “successful” agreement with all involved parties, including the Town of Charlotte, and noted that the concern about whether Morningisde Drive is in fact a public road is not “in the comfortable affirmative” for him. “This is not based on surveyor versus surveyor,” he said. “It gets very quickly into legal issues; we’re reluctant to pursue that for all the reasons that people want to avoid lawyering up,” he said, adding, “the people who benefit are the lawyers.”

When asked if the MCA would pursue this legally should the Selectboard stand by the HAP and not hold up the assertion that Morningside is not a town right of way, Richardson said, “I’m not going to offer you a comment about whether we would pursue litigation if this thing should fall apart or start falling in a direction that we think is deleterious to the cemetery.”

Krasnow said in the Aug. 10 meeting that, though the Selectboard is willing to continue to hear all arguments regarding the validity of the road, “the town is not considering restricting any rights regarding landowners,” and that Bown and Browning can continue their plans until told otherwise, and that the town will continue its plan to pay for upgrades to culverts on Morningside Drive, since, Krasnow said, they haven’t spent much “over the past 150 years.”

Selectboard member Louise McCarren summed it up this way in the Aug. 10 meeting: “A very fundamental issue has been raised: that the town doesn’t own the road. And if we don’t, who does, and how does this young couple get access to their property…which is very important to me.”

For now, Bown and Browning are free to move forward with their plans. Krasnow said in the meeting, “The approved subdivision supports that it is a right of way unless proven otherwise…I don’t think it’s reasonable, based on conjecture as the evidence before us, that we should withhold the rights of an applicant for a highway access permit with an approved subdivision.”

The issue will be taken up again at the Aug. 24 Selectboard meeting, and Krasnow said that moving forward, “The Town still needs to upgrade a section of Morningside Drive so that the Will and Megan’s driveway can intersect onto a class 3 road built to the town’s standard. The open question still in front of the Selectboard is how to arrive at a mutually agreeable solution with the Cemetery Association before upgrading the section of Morningside Drive that abuts Will and Megan’s Planning Commission-approved driveway location.”