Committee reviews bill clarifying townsauthority to maintain legal trails

On May 1, the House Transportation Committee heard from Legislative Counsel Damon Leonard about language in S.4 and H.488 that would explicitly state towns may maintain "legal trails," a change he said could affect roughly 500 miles of trail easements across Vermont and is tied to ongoing litigation in Tunbridge.

Leonard said the issue matters because of how trails are defined and the potential constitutional consequences if the Legislature grants a right that courts later find was relinquished. "Trail is a public right of way that is not a highway," Leonard told the committee, explaining that legal trails were separated from town highways when Title 19 was recodified in 1986 and that the maintenance language was not carried forward.

Under current statute, town highways include class 1, 2, 3 and 4 roads; legal trails are public rights of way that are not highways. Leonard described the typical public easement as three rods wide (49.5 feet) and said most legal trails sit on easements rather than fee-simple town-owned land. If a court concludes the Legislature removed towns' maintenance authority in 1986, municipalities that now perform maintenance could be found to be exercising rights they no longer legally possess, and reacquiring those maintenance rights would require condemnation and payment of just compensation under the U.S. and Vermont constitutions.

Leonard summarized the litigation in Tunbridge as the factual hook: the town argues it retains authority to maintain trails; the landowners argue the 1986 recodification intentionally omitted maintenance language and thus the rights reverted to the underlying owners. He warned that if the landowners prevail and a bill like S.4 or H.488 becomes law granting maintenance authority, the state or municipalities could be required to compensate landowners for hundreds of miles of trails. "If the landowner does prevail on this case, what it would mean is that we would have granted a right without paying compensation, which is a taking without compensation," Leonard said.

Committee members asked clarifying questions: Leonard said there is an inventory of legal trails on town highway maps and described a statutory process that lets the commissioner of Forests, Parks and Recreation request conversion to legal trail when a class 4 road accesses state land. He also noted S.4 includes an additional section on municipal authority to determine trail uses and that Title 24 language was added so towns could enforce uses by ordinance.

After the presentation and discussion of the bill's many changes, the committee voted to send the bill to a legislative conference committee. A motion to go to conference passed by voice roll call and was recorded as unanimous in the committee meeting.

Next steps include a pending superior court decision in the Tunbridge case that Leonard said could clarify whether the maintenance right exists now; the committee's referral to conference means House and Senate negotiators will attempt to reconcile differing versions of the transportation bill before final up-or-down votes in each chamber.