Phil Dodd
MONTPELIER — When the utility poles on East State Street began to be replaced and moved this spring to accommodate plans to rebuild the street, it appeared the start of the long-delayed project was imminent. But that was not to be.
In fact, the city has yet to ask for bids for the project, according to Public Works Department Director Kurt Motyka. He said the delay was caused by discussions with the U.S. Department of Agriculture (USDA) — which is providing a grant for part of the $8 million project — and by a related dispute with neighbors over a city survey to establish the road’s right-of-way.
Earlier this year, Motyka had said he thought there was a 90% chance construction would start this summer. Now, he said, there is still a slight chance the project could start late in the construction season, but since most contractors are already booked for the summer, the two-year project to replace water and sewer pipes and rebuild the road could easily slip into next year.
In either case, “we’re going to need to do some interim patching,” Motkya said. “There are some manholes and things that are high, and some really bad dips.”
Montpelier voters approved a $7.2 million bond for the project in 2022, but the work has been postponed several times, while the road continues to deteriorate. The cost of the project has risen since the bond vote, requiring the city to tap part of a $3.5 million USDA grant that can be used for projects at either the wastewater plant or on East State Street.
“We do not have authorization yet from USDA to go out to bid,” Motyka said. “They reviewed the plans and had a bunch of comments that we needed to respond to, and one of the requirements is getting a right-of-way certification from our attorney, which we do not have yet.” The attorney will not sign until a survey is recorded, he said.
Over a year ago, the city hired a surveyor to establish the East State Street right-of-way, but neglected to provide notice of the survey to adjoining property owners, as required by statute. This year the city restarted the process, with notice, and has a survey from Day Land Surveying, PLLC, of St. Albans posted on the city website. However, the survey has been challenged by several neighbors, and the city has yet to file it in the land records.
Jon Anderson, an attorney who with his wife Betsy ran the former Betsy’s B&B on East State Street and still owns several properties on the street, maintains the Day survey ignores existing survey markers, including on his properties. He said the survey mistakenly shows a northern right-of-way boundary that goes right through two buildings and through parts of five others.
“The city has not accepted that those pins are established where the right-of-way boundary is,” he said. “What they’re claiming is that the right-of-way extends into my foundation, and as long as they take that position, we’re going to fight them.”
Anderson maintains the Montpelier City Council needs to hold a hearing before accepting the survey.
“The council’s decision involves property rights for which the U.S. Constitution requires a hearing following notice,” he said. If the city files the Day survey as is in the land records, Anderson said he is prepared to bring the matter to court and to hire a surveyor. He said he believes some neighbors may join him.
One of those neighbors, Maria Arsenlis, who has a background in law and engineering, conducted extensive research on the right-of-way issue in the Montpelier land records and in the Library of Congress. On May 6, she sent a detailed 38-page letter to the city that asserts the Day survey was mistaken in the way it interprets an 1870 survey, and thus places the right-of-way too far north on a portion of the street.
Essentially, Arsenlis argues the 1870 language indicates the right-of-way narrows in a tapered fashion as it goes uphill rather than taking a couple of sharp right-angle jogs at Cedar Street and above Bingham Street, as the Day survey asserts. The Day survey shows the right-of-way going through two houses that existed before the city owned the road, an unlikely situation, she noted.
“People that live on our street are pretty upset about it, as you could imagine someone would be if the city came and told you that your property belongs to the city,” she said. Arsenlis, Anderson, and other property owners on the street have asked to meet with city officials, but have been rebuffed so far.
About meeting with the neighbors, Motyka said “I’m not personally opposed to it, but from a legal perspective, I want some advice on whether that is appropriate or not.” Motyka said the city is reluctant to give up any rights it has and may need in the future, although Anderson says the city always has the power to condemn property if it needs more land.
Motyka did say the May 6 Arsenlis letter was the first time the city received a well-researched, detailed counter-argument about where the right-of-way should be.
Motyka said he recently met twice with the Day surveyor and the city’s attorneys about it and is planning to meet with them again the week of June 1 “just to make sure everybody is in agreement on how this right-of-way survey should be filed.”
