Railroad Crossing Dilemma Leaves Holmes Road Residents with Unclear Titles

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Thursday May 24, 2012

Residents of Holmes Road have come up against a right of way issue which complicates their understanding of their property rights. Holmes Road is divided by a railroad crossing owned by the state, and Holmes Road to the west of the crossing is privately owned with an average width of 15 feet. Thus, property owners do not have a clear title making it particularly difficult for them to go forth with selling or refinancing their homes.
City Manager Sandy Miller, Council members, Representative Michelle Kupersmith, Deputy City Manager Bob Rusten, Director of Planning and Zoning Paul Conner, and Director of Public Works Justin Rabidoux among others have convened to resolve this issue. The situation was brought up in 2007 by the legislature where they first discovered problems with title. It was addressed again in 2009 but was left aside for another two years until there were more active and frequent discussions of it in 2011—most recently at the May 7 City Council meeting.

“We have been working diligently together to try to help resolve this issue,” Miller said. “Our efforts at the administration’s office have been largely directed at working with the legislature and Vermont League of Cities and Towns (VLCT) to try and get the Agency of Transportation (AOT) to provide clear and unobstructed easement or whatever other legal documents so that folks can have no mar on their title, access their properties, and handle their property transactions the way they would wish to do so.”

Miller asked AOT Secretary of Transportation Brian Searles if AOT could provide such documentation, to which Searles was “unequivocal,” Miller said. 

There has been talk about South Burlington taking over the right of way for the property west of the railroad crossing.  Whether or not taking over the right of way would also mean taking responsibility for the tracks themselves has been unclear. Other unanswered questions such as the extent of insurance coverage or unknown railroad maintenance costs have left the city up in the air. South Burlington has first been trying to see if property owners could be helped at the state level. However, communication has been minimal. This could result in a “runaround” where there is much talk about the issue but no actual outcome if no one steps up, Councilor Paul Engels said.

If “they [the state] couldn’t do this, they would have told us that they couldn’t do what needs to be done,” Miller said.

Since there has not been a direct answer from the state about inability to resolve this problem, it could be inferred the state could possibly find a resolution, but for some reason would rather have the city deal with it, Miller said, adding that, “this is just not the VT way to solve things.”

The city has not been directly contacted by AOT related to this issue.

Rabidoux provided a memo with a “worst case scenario”—as Miller put it—if the city took control of the whole property and crossing, and what the cost would look like approximately. He concluded that the estimated cost would be $3,000 a year to own and maintain Holmes Road and $550,000 for “upfront design, permitting and construction costs to get Holmes Road in conformance with city standards.”

This is affecting both west and east parts of the state, and getting the VLCT to organize a meeting with a larger group of representatives, the question can be posed to the AOT on a greater scale, Rusten said.

The AOT did present one proposal: a one-year lease for $200 per household in which homeowners would be responsible for getting insurance. Miller stated that this proposal was a “non-solution” and “insulting” to the tax payers involved.

One affected resident tried to sell her home for financial reasons before her husband passed away. Two weeks before closing and after releasing the deposit money on their potential new home, they were told that they did not have rights to sell their home.

“We’ve called all over the country to try to get individual insurance which would not have been transferrable...and over time, the whole thing went down the drain,” she said.

This resident has now returned to the workforce after retirement given her financial crisis.

If we wait until the Legislature is back in session in January, I will have declared bankruptcy,” she said. “I will not be able to pay my bills, even though I have gone back to work—something I certainly did not expect to do at this point in my life.”

South Burlington resident Katie Gonyaw also spoke at the May 7th City Council meeting and  strongly advised that South Burlington take responsibility of up to 70 feet west of the crossing.

“I can’t figure out why we don’t want to be leaders in this, instead of just sitting back and waiting for someone to tell us what to do,” she said. “The city has been responsible for the land west of the Barlett’s Bay crossing for over 30 years, so this situation can be resolved.”

“My opportunity to you all is to take a chance,” Gonyaw continued. “You can solve a solution for 12 tax payers in the city who would really like the opportunity to exercise their property rights.”

Representative Michele Kupersmith said that Andrew Mikell, Esq., State Manager and Title Counsel at Vermont Attorneys Title Corporation, testified before the House Transportation Committee saying that eight months ago was the first time that lawyers and the title insurance companies in the state realized there was a legal problem. The aforementioned case was the first house to encounter this problem, and now he is receiving frequent calls from all over the state.  “Closings are being held up on a regular basis,” Kupersmith said.

After much discussion between City Council members and hearing various voices from the public, the Council took action.

Councilor Engels made a motion that the City take responsibility of the railroad crossing up to 70 feet west side of the tracks. Fellow councilors unanimously agreed that this decision would be a resolution of intent, and that they would continue to work with the AOT in order to go forth with the action.

SOURCE: Miranda C. Jonswold, Correspondent