Notes from the June 16th Selectboard meeting: a petition to upgrade South Bear Swamp Road from Class 4 to Class 3, Russ Bennett's CHIP-funded Colby Road proposal, and what each means for who can afford to live in town.
Sandy Levine, a resident and chair of the Planning Commission, has spoken to the commission's recommendation that the town adopt a model policy for Class 3 and 4 roads. The recommendation would update the policy to set out, with consistency and clarity, the circumstances under which an upgrade would be approved — and would have the board consider any upgrade only after that policy is adopted. Why, then, is the Select Board acting against its own Planning Commission's recommendation?
Re: MDX Gazette, and this old ordinance you found.
The gazette opens with “ owners on South Bear Swamp Road have petitioned to re-classify a portion of the road from Class 4 to Class 3.” Because a petition, in this context, is a legal term of art and defined in 19 VSA 708 (below) I feel like it’s worth mentioning that there’s no petition (and there never has been). What it is, is a campaign by one resident to coerce, cajole, threaten, persuade and/or request that the selectboard undertake the issue on its own motion (in bold, below). [The resident] has, at different times, indicated they would institute litigation against the town and/or individual selectboard members, under the case of Rhodes v. Town of Georgia, 166 Vt. 153 (1997), and has also made representations that they would finance all or part of the upgrades needed to improve their segment of S. Bear Swamp Road to meet Class 3 standards.
(a) Persons who are either voters or landowners, and whose number is at least five percent of the voters, in a town, desiring to have a highway laid out, altered, reclassified, or discontinued, may apply by petition in writing to the selectboard for that purpose. A person who is a landowner in a town, desiring to have an unidentified corridor which passes through or abuts his or her land discontinued or altered, may apply in writing to the selectboard for that purpose. The selectboard may also initiate these proceedings on its own motion.
(b) A class 4 highway need not be reclassified to class 3 merely because there exists within a town one or more class 3 highways with characteristics similar to the class 4 highway. In considering whether to reclassify a class 4 highway to class 3, consideration may be given as to whether the increased traffic and development potential likely to result from the reclassification is desirable or is in accordance with the town plan.
As to the 2003 Highway Ordinance, I am not certain it’s controlling. The current Class 4 Road / Trail policy notes prior versions, including one from 2003. We would need to go back into the minutes to ascertain the history of our current road policy and its relationship to this one from 2003.
In terms of the board’s obligations to render a decision, the statute gives the board 60 days after the site visit and hearing to return a report of it’s findings, per 19 VSA 711:
§ 711. Selectboard’s return; recording
Within 60 days after the examination and hearing, the selectboard shall return the original petition with a report of its findings and of the manner of notifying the parties together with the survey or discontinuance, to the town clerk’s office. The selectboard’s order laying out, altering, reclassifying, or discontinuing the highway, with the survey, shall be recorded by the clerk.
(b) As part of the report of findings provided for in subsection (a) of this section**, the selectboard may order that the petitioner bear the cost of upgrading a class 4 town highway to the class 3 town highway standards** established in subdivision 302(a)(3)(B) of this title. Nothing in this section shall be construed to require a town to maintain a class 4 highway or to upgrade a highway from class 4 to class 3.
You’ll see also in this statute reference to the apportionment of costs. This is why the distinction between a petition-process versus a selectboard-on-its-own-motion process is critical. The stature only contemplates allocation of costs to to the petitioner but, when there is no petition, there is arguably no such petitioner. Who gets stuck paying the bill? How do we decide who foots the bill?
The 2003 ordinance seems pretty clear that the applicant foots the bill, secures bond, and gets the work done off, subject to final sign-off by the board. But the current Class 4 Road /Trail policy does not contain similar language, and in only referencing the statute, we are left in a very ambiguous space.
Also, last night made it very clear to me that, given the town’s impact on the use of Notch Road – with the development of town trails and now, possibly, renovation of town-owned cabins that would be rented out – there are far better, more credible arguments supporting reclassification of the last Class 4 segment (.79m) of Notch Road to accommodate trail traffic. That’s a reasonable fact pattern and basis to take up the issue without the need for a petition. But what we’re dealing with on S. Bear Swamp? I think it’s the opposite.
Stacey Skadberg, Middlesex Select Board Member
Owners on South Bear Swamp Road have petitioned to re-classify a portion of the road from Class 4 to Class 3. I have no firsthand account, but Select Board discussions indicate legal action was taken or threatened against the town if the road was not upgraded.
Middlesex has National, State, Interstate Highways and Class 2-4 roads. Class 4 roads are not maintained by the town, while the town still maintains ownership and control of right-of-way. Homes on Class 4 roads were built or purchased with full knowledge that those owners would be responsible for the upkeep and maintenance of the road, without public assistance.
A town may decide to re-classify roads over time. A town should have a policy and procedure that minimizes the opportunity for bias or self-dealing when determining the classification of a road.
Here is the Town of Middlesex policy on upgrading a Class 4 road — see Part C of the 2003 Highway Ordinance.
Town of Middlesex - First Hearing on reclassifying .7m S. Bear Swamp Orca Recording — in the recording, you can see a resident that appears to try to take charge of proceedings at the beginning.
In that same recording, the resident acknowledges that no work has been done to keep the road from deteriorating. There is no dispute that the segment is presently Class 4 — and therefore the owners', not the town's, to maintain. Presented this way, the request reads less as a reclassification on its merits than as a town subsidy of private owners, with nothing in writing committing them to the conventional route: bringing the road up to Class 3 standard at their own expense before any upgrade is considered.
Later in the recording, the resident asks why none of the town's FEMA money was spent on South Bear Swamp Road — as if the road were entitled to it. But FEMA funds are not a pot the town can direct at will; they are tied to specific projects the agency itself deems eligible. The through-line of these remarks is consistent: why won't the town pay for a Class 4 road its owner always knew it would not maintain?
In the recording, the same resident says they did not know what a Class 4 road was when they bought the property, and does not appear to regard familiarity with the laws, regulations, and ordinances of a place one chooses to move to as their own responsibility — a point some may find notable given the resident's profession.
The same resident later claims that nine in ten townspeople would agree the town should pay for his Class 4 road — and the stretch used by a few other families — yet says he will not pursue the normal petition process (editorial: a process that would likely lead him to understand other Class 4 residents' needs, and to balance theirs and the wider town's against his own).
After the site visit, another resident reads a letter asking the town to take over only the stretch of road on which they live — not the rest of it — citing a wish to avoid heavier traffic. The same letter asks that the road be closed to out-of-town drivers and to Jeep use, though Class 4 roads and trails are public ways in Vermont, conventionally used for exactly that.
Were there a genuine petition — or even other Class 4 residents lending their voices to a request to reclassify every Class 4 road that meets whatever characteristics South Bear Swamp's owners feel warrant an upgrade — the town would have clear grounds to weigh it. As it stands, the Select Board and some South Bear Swamp residents appear to be steering public funds toward private ends (editorial: in the author's view, a course that would erode townspeople's trust in their government).
The 2003 Highway Ordinance requires the Select Board to give its decision on a road classification upgrade at the next "duly called" meeting. This conflicts with the board's statement at the June 16th meeting that it has no hard timeline to decide after the hearing. Clarification has been requested.
Amend the Highway ordinance to include measurable, verifiable characteristics that qualify a road as Class 3. Examples could be "has <such and such> number of families per <such and such> miles of road".
South Bear Swamp isn't the only Class 4 road in Middlesex. Notch Road is Class 4 and is the public access road to the Middlesex Town Forest. If families on South Bear Swamp Rd are entitled to town-maintained roads, why isn't Notch Rd (or any of the other Class 4 roads in Middlesex)?
Homes on Class 4 roads sell for less than those on Class 3. Re-classifying South Bear Swamp to Class 3 would transfer value to current homeowners while committing the Town of Middlesex to annual maintenance costs.
Upgrading a road's classification may be warranted in particular circumstances. Residents can write to the board or attend the hearing on Tuesday, June 23rd to register their views before it decides — possibly the only such opportunity.
At the June 16th meeting, Russ Bennett re-raised his Colby Road proposal for a large development under the CHIP (Community and Housing Infrastructure Program): housing, a day care center, meeting space, and a municipal water system, for which he hoped the town would help fund a portion.
The proposal appears to conflict with the Mixed Use District definition from Middlesex (Page Marked 4/PDF Page 8) 2025 Zoning Regulations, which requires a minimum of 2 acres per structure; the Colby development as described at the meeting appeared substantially denser. The Mixed Use District is the south side of Colby Road, as can be seen here. (The current 2025 regulations and zoning map, which supersede the document linked above, are in the correction at the foot of this article.)
The site's single entrance and exit presents a constraint for the traffic a 150-child-capacity day care center would generate.
I'd be very interested in residential units that conform with the permitted 3-4 family dwelling, which I imagine would be similar to the housing developments along Rte 2 headed to Waterbury. The proposal as described does not match this, and the disconnect between the Middlesex Zoning Plan and the plan presented warrants the Select Board's scrutiny.
And just because one proposal isn't right doesn't mean we shouldn't, all of us as members of the town, work to put together the best proposal we can to receive CHIP funding to build more affordable housing in Middlesex. This is both the right thing to do and a good thing for the town.
Middlesex residents have sharply different experiences of housing affordability. A good portion at the top of the town is prospering; a larger portion faces affordability pressures. Making decisions about upgrading roads, and having the taxpayers take on paying for those roads, or agreeing to partner on a municipal water system (which has no current demand, but may in the future for as yet undeveloped businesses and housing) have an effect on the cost of living in the town, and therefore on who can afford to live here.
Vermont, and Middlesex in particular, has a specific character. As a "flatlander" who moved here this decade, I value the life Middlesex offers. I share some of the concerns about how decisions are made in town: a small group can exert disproportionate influence over which decisions get made. If you care about any of the questions above, I hope you'll participate by attending a Select Board hearing or regular meeting and sharing your thoughts.
P.S. I'm now very curious to understand the history of Austin v. Town of Middlesex. The verdict seems to have been that there was a mapped town highway near the section of South Bear Swamp rd under discussion that was entirely made up?
Correction: Middlesex's current zoning is governed by the 2025 Middlesex Land Use Regulations and the 2025 Zoning Map. These should become available on the town's updated website once it is complete.
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