Pownal ATV ordinance challenged

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POWNAL — A controversial ordinance regulating all-terrain-vehicle riding on town roads was passed last week by the Select Board, and as expected, has prompted a citizen petition drive aimed at overturning it.

The timing of the likely townwide vote has also stirred a controversy, with an opponent group — Pownal Citizens for Safer Roads, LLC — pushing for a town ballot to be held during the Nov. 3 statewide election.

However, the Select Board, which passed the ordinance unanimously on July 9, declined requests to steer the ordinance vote to the already scheduled Nov. 3 election. That means a special town meeting would be required prior to Nov. 3 under normal state guidelines for petitioned ballot issues, although the opponents point out that towns have leeway this year because of a waiver allowed because of the COVID-19 epidemic.

Attorney Merrill Bent, of Woolmington, Campbell, Bent & Stasny, representing the opponents, made that request of the board during the teleconference meeting July 9.

Board member Michael Gardner also raised the idea prior to the board's vote but it was not taken up by other board members. Gardner said his concern is that another election, which he said could cost in the range of $1,500, would otherwise be necessary.

The ATV proposal would open most town roads to ATV riders while restricting some roads to resident use only and others to residents or non-residents with written permission from affected property owners.

In addition, the ordinance would require riders to purchase town stickers that must be displayed on the vehicle and would allow riding from 7 a.m. to 9 p.m. from May through December. No riding is allowed on the state highways, Route 7 and Route 346.

Proponents contend an ordinance will better regulate ATV riding, allow for fines and allow identification of riders by town stickers, which in turn could provide revenue to increase enforcement options. Those could include an expanded contract with the Bennington County Sheriff's Department, which now patrols in the town 30 hours per week.

Petition drive

If not overturned by the petition drive and negative town vote, the ordinance would take effect 60 days after its adoption by the board on July 9.

A Citizens for Safer Roads media release Wednesday cites emergency state legislation passed in March in light of the COVID-19 epidemic, and the Secretary of State's decision to allow town's to reschedule townwide elections that normally must be held on a specific date.

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That authority for communities would allow the Select Board to move the vote to Nov. 3, and the group seeks that change.

Bent said in an email on Thursday, "The concern about the date of the special vote is that the petition must be submitted 44 days from the July 9 vote on the ordinance, and then (absent COVID) it would need to be brought to a vote within 60 days after the petition has been submitted As I said, the board could choose to extend the deadline to the [Nov. 3] election per the Secretary of State's waiver, but has indicated that it will choose instead to spend taxpayer dollars to hold an earlier vote."

Late revisions

Some recent revisions to the ordinance, apparently worked into the document by board members Robert Jarvis and Gardner, restricted ATV use on four roads, North Pownal Road, Barber Pond Road, South Stream Road and Jackson Cross Road, to residents seeking to reach allowed places to ride. And last minute changes put the same restrictions on 20 smaller roads while allowing non-residents to ride there with written permission from affected landowners.

"Like everything the board does, our decisions are made based on multiple factors including citizen comments, but also board discussion and personal research and investigation," Jarvis said this week in an email. "If you watch the [board's] work session from [July 6], Mr. Gardner brought up some concerns, and in the following days he and I were able to speak alone to evaluate the additional roads together to come up with this addition to the ordinance."

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Enforcement issues

Opponents have cited what they contend is a current lack of enforcement controlling speeding, intoxicated riders, reckless driving, vandalism or similar use of roads by ATV riders, and they fear the problems will worsen if most town roads are opened to residents and to out-of-town riders.

Jim Kocsis, a member of the citizen group, stressed during a call in to the board's July 9 meeting that he and others are not opposed to opening more roads for ATVs but he hasn't see any corresponding increase in law enforcement to deal with problems.

He also cited the recent changes made in the ordinance as a good start but called on the board to keep the discussion going longer. He reiterated a citizen group request that the process be opened up to a committee of residents as well as the five board members.

"One of the biggest issues with the creation of this ordinance is that it was rushed through the process without any regard to having the Sheriff Department be a part of the discussion," he said in an email Thursday. "There were changes made the night it was adopted without being reviewed by the town attorney. We can do better than this if the Select Board will allow a task force to work on a solution."

Because the ordinance debate has been made more difficult by the board having to hold videoconference meetings with no residents present, the citizen group had also called for the process to halt until larger meetings can be held.

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In addition, Bent filed suit on behalf of the group in Bennington Superior Court Civil Division in June, seeking a restraining order and preliminary injunction over the limited amount of citizen participation and accusing the board of several open meeting law violations during the process.

A temporary restraining order was not approved by the judge, but the court had set a hearing for July 27 on the request for an injunction, she said Thursday in an email.

"However, because the board already passed the ordinance, the complaint will first be amended to request that the court void the ordinance due to the various OML violations, rather than to enjoin the board from acting as requested in the initial complaint," she said.

Concerning the enforcement issue, Jarvis said during the July 9 meeting that the board believes it will be enhanced with the addition of required visible stickers and fees that could help the town add patrolling hours by the sheriff's deputies.

"There are limitations to what local law enforcement is able to do in regards to tangibly `catching' and citing ATV riders who are doing so illegally due to [a police] `no chase' policy. Our proposal of a sticker system, which requires proof of registration and insurance, is our attempt at bringing more visibility to riders on the road. This will make them more easily identifiable for law enforcement and residents."

Chairwoman Angie Rawling said during the July 9 meeting, "We are constrained by the budget from last year, but we are hoping the stickers will provide more revenue [for law enforcement]."

Just prior to the vote, board members Ron Bisson and Rawling said they believe it is time to move to enact an ordinance, recognizing that it can be revised if needed and that voters can have their say on the proposal.

"This can be changed," Rawling said, adding that she has read or heard many comments from residents on both sides of the issue.

"We are trying to do the best thing for the community," she said. "But it is time to move on."

"The public will have time to make their feelings known," Bisson said. "We can change it if we want to."

Jim Therrien writes for New England Newspapers in Southern Vermont, including the Bennington Banner, Brattleboro Reformer and Manchester Journal. Twitter: @BB_therrien


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