wrong-of-way? Concerns over Boyne City to US-31 trail

wrong of way

Benjamin Gohs

News Editor 

How much of your property may the government use for roads, sidewalks or—in this case—non-motorized walking and biking paths?

Concerns over how the road right-of-way issue is being handled in the Boyne City to US-31 non-motorized trail hit a new high recently when the firm overseeing the project requested additional assurance from the county that it would not be held liable for people upset with trail placement.

“I found it unusual,” said Charlevoix County Commissioner Rich Gillespie (R-District 5) in a May 21 phone interview. “I cannot see how a firm that is doing design work and has liability insurance could ask for any portion of it to be waived … it just doesn’t make any sense.”

The Charlevoix County Board of Commissioners went into closed session to discuss the request made by Northwest Design Group of Petoskey—the engineering firm handling the Boyne City to US-31 non-motorized trail—during its regular bi-monthly meeting on Wednesday May 14.

The board voted 5-1 to amend its agreement with Northwest Design Group and revise the indemnification language. Gillespie voted “no.”

In the addendum, it states that Charlevoix County, “Agrees to indemnify, defend and hold harmless NDG and their agents and employees from and against any claim, injury, damage, cost, expense or liability caused by, arising out of, resulting from, involving, occurring in connection with, or relative in any way to, the actual or claimed right-of-way of the Boyne City-Charlevoix Road, excepting only injury to person or damage to property caused by the negligence of NDG, negligence unrelated to the actual/claimed right-of-way or breach of the professional services agreement.”

While no formal attempts have been made to sue the county or its partners over the road right-of-way issue, there have been several property owners along the phase one trail route who have been reluctant to sign documents acknowledging that the county has the right to use not just the standard 33 feet of area from the center of the road on either side but also the 16.5-foot additional easement obtained by the government back in the 1950s.

• According to Charlevoix County Road Commission Manager Pat Harmon, the Charlevoix County Road Commission Board changed its stance from requiring all property owners sign off on the right-of-way acknowledgments to allowing for a few unsecured right-of-way acknowledgments.

“A few meetings ago the road commission board discussed just one or two (properties) that might be out of the 33 feet by a foot, and they felt that was not enough to warrant shutting down the project,” said Harmon.

The varying interpretations and ongoing frustration, of some, over the right-of-way issue seems to stem from a Michigan Attorney General’s opinion which stated that non-motorized trails can be constructed along county roads within the right-of-way.

“We know for a fact that we can build a path in the first 33 feet,” Harmon said.

What makes Boyne City-Charlevoix Road special, according to some, is that additional 16.5 feet of road right-of-way that property owners were assured, 60-or-so years ago, would be used only for road purposes.

• Prior to the county’s closed session discussion, Boyne City-Charlevoix Road property owner Nancy LaCroix read from a letter she addressed to the board, stating that the citizens who signed the Release of Right-of-Way document so many decades ago did so with the understanding that the sole and only purpose of the conveyance was for highway purposes.

“Does this mean any legal document signed 50 years ago is no longer valid and you are free to reinterpret its original intent?” she said. “Why do you think you can disregard a legal document and use citizens’ property for an unintended use?”

• In his post-meeting interview with the Boyne City Gazette, Gillespie said he supports recreation and non-motorized pathways but is concerned that homeowners could be forced to give up any part of their property to the government.

“I am primarily for people’s constitutional rights and I said that years ago,” he said. “I feel that there were some misconceptions stated as to the necessity of the bike path to be detached from the road … and now it would appear the road commission has been coerced into changing its policy.”

Both Gillespie and LaCroix pointed to Charlevoix County Commissioner Larry Sullivan (R-District 6) as a potential root of some of the concerns surrounding the right-of-way issue, from when he was the acting planner for Charlevoix County.

• LaCroix produced an Aug. 10, 2009, letter in which the Charlevoix County Road Commission Board heads and manager laid out their concerns over the potential creation of a detached non-motorized trail-way

In the letter, road commission officials stated that, despite their support of a detached path in 2006, further investigation of the matter had changed their respective minds.

“We have considered whether a separate path for non-motorized travel within the right-of-way is within the scope of the conveyance to the county ‘for highway purposes.’ Arguments can be made that such a use is within the scope of the conveyance,” they stated in the letter. “However, some Michigan courts have taken a narrower view of the scope of conveyances such as this. Therefore, the road commission cannot be assured that such a plan would be free from potentially legitimate judicial challenges involving properties along a significant portion of this right-of-way.”

It was further stated in the letter, “In this instance, it (road commission) does not believe that it is in the best interest to pursue a course of action that would lead to a significant controversy over the legal basis for the location of the path as previously proposed. Accordingly, the road commission finds it advisable to support right-of-way usage for non-motorized purposes only along paved shoulders of the road to be constructed along this route.”

• Sullivan—who was a planner and not a commissioner at the time the planning for the trail occurred—said public improvements like non-motorized pathways are expensive and complex.

“If the trail was attached … we would have lost between $300,000 and $500,000 in grant money, and no one stepped up to the plate from the county board saying the county was willing to fund that,” Sullivan said, adding that the county board of commissioners had the final say on whether to approve the project.

“At the time we made application for the first round of funding I was told specifically … (by MDNR Trust Fund official) that dollars could not be used for an attached trail,” he said.

Sullivan said it is also an issue of safety.

“It is not appropriate for children to be riding on the shoulder of Boyne City-Charlevoix Road,” he said.

As far as his support of indemnifying Northwest Design Group, Sullivan said the firm was hired to design the trail, not to deal with matters under the purview of the road commission or the county board.

Sullivan also said the Michigan Attorney General opinion has already settled the issue of the additional 16.5-foot right-of-way.

“I may not like where the city runs power lines or sewer lines through my property but if they have an easement to do so, I have no say in the matter,” Sullivan said. “What we’re talking about is a sidewalk that is going to be used by people walking, riding bicycles, kids or adults rollerblading—we’re not putting an airport runway in front of their houses, we’re putting in a sidewalk.”
He added, “I don’t see a downside to it. I think we need to get the thing built and utilize it and enjoy it and have fun on it.”

• Roger Conaway, who lives along the proposed second phase of the trail, has concerns with the potential for the path to encroach on his property.

“I don’t want it to come within any of that 16-and-a-half feet,” he said. “I use that property. I’ve been using it for years.”
Conaway added, “I’m just disturbed about our property rights in this state. Where are the commissioners who took an oath to uphold the Constitution? This is one of our inalienable rights.”

Conaway said he supported the idea of a trail attached to the road but is concerned with the road commission’s recent change in stance on the right-of-way issue.

“I don’t know how Pat Harmon and his other board members can change a policy unless it’s published first,” Conaway said. “This is nothing to be playing around with … just changing their policy amongst themselves when there are laws that govern every road commission in this state.”

He added, “The problem is they want their way regardless of what it costs and how it affects people’s property rights.”

• However, people like Ron Van Zee, who owns nearly 2,900 feet of property along the final phase of the trail—between Horton Bay and Maple Grove Road—are in complete support of the trail project.

“We live on that road and we watch bikes go through there now and it’s really quite dangerous,” he said. “The state is talking about doubling the gas tax so right now is probably a good time to ride a bike.”

Van Zee added, “We don’t mind it going by our property. My understanding is it’s going to be within that 99-foot right-of-way.”
Van Zee said he is a little concerned with how the completed trail’s maintenance costs may be funded but suggested that a bicycle registration fee could go a long way to help.

• Charlevoix County Parks and Recreation Director Ross Maxwell said the non-motorized trail project construction documents have been submitted and the project is going forward as planned despite any right-of-way concerns.

“As far as I’m concerned it’s full speed ahead,” he said, adding that—of the several holdouts along phase one of the trail—two had recently signed easements, and one more property is in a trust, which makes obtaining such permission more complicated.

“We just met with another property owner last week,” Maxwell said. “He had some questions and we answered them for him.”

There are nearly 48 properties along the phase one route.

Informational meetings between trail officials and proposed trail route property owners are expected to occur later this summer.

“We will be meeting with property owners shortly,” said Maxwell. “We’re going to work with everybody as best we can.”

The 3.2-mile phase one of the trail is expected to begin construction in August. It should be completed before the end of the year.

A representative from Northwest Design Group did not respond to requests for comments by press time.