Pownal ATV ordinance process criticized

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POWNAL — A number of Pownal residents — several now represented by a lawyer — are raising questions about a proposed ATV (all-terrain-vehicle) ordinance that would open up more town roads to the vehicles, and about the process by which the idea is being considered by the Select Board.

The board has scheduled a work session for Tuesday at 6 p.m. via videoconference to talk about an ordinance. However, it remains unclear what the board will consider, whether it is an ordinance already drafted or something board members intend to draft themselves.

Whether there will be a townwide vote on any ordinance is another concern being voiced by residents.

The format of the meeting, some have complained, also could prove a problem for gathering input, as the videoconferencing call-in system during prior meetings has proved balky at times. The board's agenda lists a public comment period from 6:30 to 7 p.m.

In addition, the Banner has learned that 17 residents have retained attorney Merrill Bent, of Woolmington, Campbell, Bent & Stasny, who sent a letter to Select Board Chairwoman Angie Rawling late Monday asking that a statement on behalf of her clients be read into the record of Tuesday's meeting.

The statement, a copy of which was obtained by the newspaper, raises several of the concerns residents have raised about the proposed ordinance and the process by which the board is considering it.

The issues include how provisions of such an ordinance can be enforced. The statement also calls for formation of an independent committee to review ordinance proposals, raises questions of alleged conflicts of interest on behalf of two board members, and asks the board to condemn what she termed "threats, intimidation, harassment, and even trespass and destruction of property" her clients have experienced after raising differing viewpoints.

Previous proposals

Questions around the idea of allowing ATVs to operate on more Pownal roads have been hotly debated for more than a year — and the issue here dates back to well before 2011, when the board at that time passed an ordinance allowing ATVs to operate on all town roads.

But that measure was rescinded soon afterward, following multiple complaints from residents.

The Select Board considered an ordinance proposal in the summer of 2019 that was submitted by resident John Bushee.

The proposal, which was not brought to a vote for adoption, would have opened up 21 new designated routes for ATV riders. It remains unclear whether that proposal remains the primary ordinance form the board is considering.

The ordinance draft also included safety and other requirements for operating on newly designated roads, hours of operation requirements, fines for violations and other details.

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During a July 2019 special meeting of the Select Board — held at the larger Pownal Center Firehouse — a standing-room-only crowd engaged in a sometimes heated debate over Bushee's proposed ordinance, reflecting ardent support on both sides of the issue.

35 signatures

While numerous residents have voiced strong support for a new ATV ordinance, a group of 35 residents recently sent a letter to the Banner and elsewhere, raising concerns and calling for changes in how the board is proceeding in the matter.

Peter Hillman, of Mt. Anthony Road, drafted the letter that other residents signed. It called for, among other things, formation of a citizen advisory board to help draft the ordinance; information on the off-road trails enthusiasts have said they want better access to along town roads; maps showing the off-road trails to be used and what activities are allowed on them; multiple public meetings to consider a draft ordinance, preferably after COVID-19 is not a threat preventing large gatherings; and putting any proposal to a townwide vote.

Hillman also has called for Harry "Jamie" Percey to recuse himself on the ATV issue, contending the board member has a conflict of interest because he has publicly expressed support for an ordinance.

Jim Kocsis, who has been critical of the ATV ordinance process, said Monday in an email, "Since a majority of the [Select] Board is in favor of opening a majority of the roads in town, they should step aside and a task force should be formed to study if any additional roads should be opened, or if any of the current roads should be undesignated as open."

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He added that a meeting should be scheduled with Vermont State Police and the Bennington County Sheriff's Department to discuss how enforcement of requirements for ATV riders can be addressed currently and under any new proposal.

Others have raised the issue of general liability for the town if more roads are opened for use.

"What are the liability issues for the town in the event of an accident or fatality?" said resident Jackie Sedlock in an email. "What is the [board's] response to manufacturer warnings regarding use of ATVs on roads?"

She added, "Why has it been nearly impossible to enforce laws around noise, restricted road use, speeding, lack of helmets, and refusal to stop for law enforcement? In the event of more open use, what's the course of action to protect those who have suffered disruption to their enjoyment of peace as a result of these problems?"

Former Select Board member Jenny Dewar said Monday in an email, "I would be happy to see more trails created for ATVs. Trails that are accessible for emergency vehicles should anyone get hurt. Then perhaps there can be discussion about what roads lead to the trails or create space for off-loading. However, I don't think all roads in Pownal should be opened up to access questionable trails or even legal ones."

Calls for recusal

Asked via email for more detail on the upcoming meeting and the ordinance consideration process, board Chairwoman Rawling declined Monday to comment.

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She did, however, respond to the issue of whether Percey should recuse himself. Rawling said in an email that she had consulted with the town attorney, whom she did not name, and would release the following statement:

"A conflict of interest is determined by the potential of a direct or indirect personal or financial interest in the outcome of the decision. Mr. Percy has no such interest in the outcome of an ordinance. A political position on an issue does not create COI."

Rawling added in the statement that "candidates and legislators do state their positions on policy issues prior to voting on such issues as a matter of course. Even if some believe that Mr. Percy has a personal interest in the outcome, the policy states that it is up to Mr. Percy to decide if he chooses to recuse himself or not."

She also cited the difference between requirements with "a quasi-judicial matter" and a determination by the Select Board on a policy matter, concluding, "As such, there is no basis by which to force Mr. Percy to recuse himself from policy decisions to be made concerning ATV/UTV use in Pownal."

A follow-up email asking who the attorney was who advised the town and whether the policy involved also included any applicable state conflict of interest guidelines did not draw a response.

In the statement sent to the board by Bent on behalf of her clients, she argued that both Percey and board member Robert Jarvis have conflicts of interest on the ATV issue.

In Jarvis' case, Bent wrote that he lives on "one of the roads that would be open to ATV traffic" if the ordinances is passed.

Current roads

A new ATV ordinance, if adopted, is expected to replace the town's current ATV regulation, contained in a traffic ordinance. The traffic ordinance was adopted by the prior Select Board in December 2016.

That prohibits operating a recreational vehicle on any town or state aid highway in Pownal except designated open roads.

Those are Schenkar Road from the intersection of Old Military Road; Old Military Road, from the intersection of Schenkar Road; and Old Military Road heading south to the Williamstown, Mass., line. Also, County Road from the point of intersection with Schenkar Road to the Stamford town line; Cross Roads from the intersection of Maple Grove Road to the intersection of South Stream Road to South Stream Road.

The ordinance as proposed in 2019 listed 21 new designated routes for ATV use, including parts of Ladd Road, North Mason Hill Road, Niles School Road and Barber Pond Road.

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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