by Paul McDowell, Joseph C. Peterson, and Dick Welsh
Paul McDowell, New York State Farm Bureau Joe Peterson, Stanley, New York Dick Welsh, The National Association of Reversionary Property Owners (NARPO)
FORWARD
Informational Meetings and Developing Strategies page 1
Learn all you can about the proposed trail page 2
Research the Abandonment page 2
Liability issues - Who will be the responsible agency? page 3
Adjacent property user liability considerations: page 3
Funding Issues: Development, Operation & Maintenance page 4
Environmental Issues page 4
Generate community Involvement utilizing: page 5
Get and keep organized *Research *Research *Research page 5
*Document *Document *Document
Working with the media page 6
Get background information page 6
Political Action page 6
Community Action page 6
PROPERTY RIGHTS ISSUES page 6
Determine: who actually owns the property ? page 7
Find out how the property was acquired by the railroad page 7
Who actually claims to own the property being proposed as a trail ? page 7
Find out how the property was acquired by the railroad page 7
Are there exceptions in the deed or agreement ? page 7
RAILROAD ABANDONMENT page 7
Note: ICC now called the Surface Transportation Board under the federal DOT page 8
PROPERTY RIGHTS CONTACTS FOR NETWORKING WITH OTHERS page 9
More than likely, by the time you read this information you will have already been affected by Rails to Trails, or you may have heard some discussions from sources suggesting that a trail may be in the works. It is the hope of the writers that the enclosed information may help eliminate some of the guesswork as to how and where to proceed and most importantly provide some crucial steps in how to protect your private property rights if they are being infringed upon or might be infringed upon by rails to trails.
Although every situation has its own set of circumstances, with different names of affected property owners, different railroad lines, different trail groups, different government entities, etc., one of the most interesting facts is that in nearly every rails to trails situation the steps, procedures, problems and concerns have happened to other property owner groups and much can be learned from what happened before.
Literally hundreds of hours of research have gone into making the enclosed information available to you, based on the previous good and bad experiences of others. The unfortunate losses could possibly have been prevented had such information been readily available to others.
Many thanks to Mr. Paul McDowell of the New York Farm Bureau and Mr. Joseph Peterson of Stanley, New York, and Dick Welsh of the National Association of Reversionary Property Owners (NARPO) for putting together the enclosed information. Paul, Joe, and Dick have worked for months gathering enough information to develop this basic guideline and have been tireless advocates in defending property rights in the area of Rails to Trails.
Although the following information may not have all of the answers you may need for your particular situation, it will at least be a good starting point and help prepare you for the work that lies ahead.
If you can help to provide any additional information that will be beneficial to property owner groups and help to make this a more complete source of information, your comments would be welcomed.
Please send any correspondence to:
Joseph C. Peterson
P.O. Box 104
Oaks Corners, NY
14518
Informational Meetings and Developing Strategies:
> Contact the local Farm Bureau, the State Farm Bureau (518-436-8495), the American Farm Bureau (312-399-5746), or any state farm bureau which is usually located in or around the state capitol.
* Are they informed ?
* Are they involved ?
> Attend all informational meetings.
> Videotape the meetings and/or go with witnesses to corroborate what you heard.
* Take detailed notes, and get the names of those in attendance.
> Form a formal group and incorporate for liability purposes.
> Once your group is organized, then have the group send a letter to the president of the abandoning railroad asking the railroad not to go with rails to trails. Inform them that your group would like to buy back the land. The railroad likes to deal with only one entity when they sell off the rail corridor, not 100 property owners.
> Once you convince your local elected officials of your position on reversionary rights, have the local officials write a letter to the president of the abandoning railroad stating they would like to see the land go back to the property owners. In other words, no rail-to-trails.
> Information to secure:
1) What is actually being proposed ?
2) Is it a Trail or is it a Park ?
3) Is it private or is it public ?
4) Is it conforming to existing surroundings or does it alter or interfere with surrounding usage ?
5) Is it funded privately or is it to be funded through taxes and tax grants ?
* Ask about Special Use Permits and/or Zoning compliance.
1) Does the proposed trail use comply with local zoning ordinances ?
2) Ask what permits have been secured so far, and what permits remain to be secured ?
3) Zoning issues may require public meetings and may require mitigation measures.
- safe off-street parking
- protective security
- fencing
- signage
- restroom facilities
- industrial zones
- agricultural zones
- minimum width requirements
4) Zoning Ordinances are available from Towns at a cost, contact the zoning, officer or town clerk to obtain a copy.
5) Possible legal issues:
- Is a State Agency overriding local land use laws ?
- Is the trail group truly in compliance with local land use law ?
- Is the trail group illegally using land they-do not own?
- Does your state law allow a state agency or other local government agency to develop a project (rails-to-trails) in another government's jurisdiction?
6) Political issues:
- Get your local county, city, township to enact a zoning ordinance that does not allow linear parks that are less that 400 feet wide within their jurisdiction.
- Unelect any official that does not protect reversionary rights or is not in agreement with the property owners viewpoint or allows these trails to be built.
Learn all you can about the proposed trail:
* Accessibility of trail, types of trail use. If multiple use, how will trail conflicts be
addressed ?
* If multiple use, specific uses allowed ?
* Ask who is on the governing board of the trail ?
* Ask what sources of public funding are involved and what agencies are associated with these funds?
*Ask why all property owners directly affected were not included in the initial development plans.
> Emergency Services:
* Investigate fire equipment, ambulances, access, training, manpower, etc..
> Environmental Issues to raise:
* Environmental Impact Study.
* Noxious weed control - equestrian (horse trail) use.
* Hazardous waste sites: Are any adjacent to or actually a part of the property ?
* Is any of the property documented wetlands ?
Research the Abandonment:
- Before you get too involved you need to know under what laws you will be working
under in order to kill the proposed trail.
- Did the abandonment take place before or after the mid 1980's?
- If abandonment occurred before mid 1980's, reversionary rights are protected by state law.
- If after the mid 1980's, a proposed trail can fall under the federal Rail Banking Law (16
USC 1247(d)).
- Call the Surface Transportation Board (STB), formally the Interstate Commerce
Commission (ICC), Office of Proceedings at 202-565-1650 and ask to get on the
mailing list of the abandonment. You will need to tell then the name of the railroad,
the stations or cities and the endpoints of the abandonment, and the name of the counties
the abandonment passes through.
Liability issues - Who will be the responsible agency ?
> Can any affiliated municipality afford a million dollar lawsuit ?
* Hunting Hazards - hunting accessibility was RR policy. How do you address hunting
hazards ?
* What happens if volunteers are injured or killed; who is liable; what about school
children or the scouts ?
* Will your homeowners insurance cover you if a trail user comes on to your property
and gets' injured by livestock, fences, etc.?
* Government agencies are immune from lawsuits so will the injured trail user now sue
you as they cannot collect from the government?
Adjacent property user liability considerations:
> Most trail groups will present information showing that adjacent property owners are protected in the event someone is injured on or near their property by trail users. But, what they fail to say is what the expense will be for proving you are not liable if a suit is brought against a landowner.
* Is Trail a Recreational Trail or an Educational Trail ?
* If liability protection laws exist (Good Samaritan laws) were they created for non-recreational usage ?
> Secondly, if an agricultural crossing is granted for your use and you accidentally damage the right-of-way for trail use and as a result someone is injured you will likely be named in a suit involving your negligence.
* What measures have been taken to protect you ?
> Did the original deeds granting the railroad an easement actually grant you perpetual crossing rights?
If so, then make the trail user allow you equal or greater crossings.
> Do you have attractive nuisances: ponds, streams, rivers, lakes, animals, equipment, machines, or
buildings that could be great for playing, recreation, or photography ? Keep this in mind as you will be liable for any injury caused by an attractive nuisance.
> Crop protectants:
* How do you protect recreationists during the times of spraying, and yourself from
those who trespass on your land ?
* What happens if Trail users get sick as a result of your normal operations ?
* What will it cost to prove you were not negligent ?
> Farm smells:
* How will the city folks like the smell of the hog pens and feed lots? Will they report
you to those kind and gentle state environmental folks?
Funding Issues: Development, Operation & Maintenance
> Questions need to be asked about:
* Patrolling expenses, resources. Sheriffs Department, State Police, Rangers, Private Staff.
* Cost of annual maintenance, bridge inspection & repair, mowing, trimming, spraying,
restroom facilities. Culverts, Ditches, Grade Crossings etc.
* Basic repair and amount of renewal or restoration work to bridges, handrailings,
surfacing, drainage structures, accessways, and engineering & design costs.
* What happens to the property if the project goes belly-up ? Who takes over the property
and responsibility ?
* What quantity of external funding is there for the project?
* Is it guaranteed, hoped for, or dependent on donations ?
* Who will be responsible for all costs of development and repair: trail group, town or
city, county, state, federal agency, private corporation, or individual ?
> Your Tax Dollars at Work:
* Is the trail group going to apply for tax exemptions ? (REMEMBER, railroads paid
taxes !)
* Is the trail group actually eligible for tax exemption ?
* Highlight Grant Money. This is tax money. Whether it's town, county, state or federal
grants (ISTEA) it's all coming out of the taxpayer's pocket.
* ISTEA is your federal gas tax. Rails-to-Trails takes $500 million (1/2 billion dollars) out
of the federal gas tax for trails every year. Wouldn't you like to have better roads than
Trails? Maybe your Congressperson and Senator would like to hear from you on this.
* Consider affects on existing community resources: municipal costs, educational program
needs, highway and bridge maintenance and repairs, fire and police protection. If there
is an accident on the trail and a serious accident elsewhere at the same time, are there
adequate community resources to respond to all needs ?
* Priorities for tax expenditures. Even ISTEA funding needs priorities.
- Is this truly an essential project ?
- Are there other projects more deserving of any available funds ?
Environmental Issues:
> Has there been a formal Phase I Environmental Study performed and, if needed, a Phase
II Environmental Study done on the entire project? If so request copies.
* A Freedom of Information Request to the Department of Environmental Conservation
(DEC) could prove very enlightening pertaining to any toxic spills by the railroad or
neighboring properties. If spills were reported a Phase II Environmental Study testing
should be mandatory.
* Newspaper research could prove beneficial too - research any information on past train
derailments or accidents that could have contaminated the property that DEC may not
have record of prior to the 60's. If contamination possibilities exist, a Phase II
Environmental Study should be mandatory.
* Environmental SEQRA process - hazardous waste in beds. Pesticides, asbestos (brake linings), tanker leaks, creosote, etc. or special concern areas such as repair facilities, dumps, rail site areas and turnstiles.
* Per Izack Walton League and U.S. Government Guidelines for human waste disposal as recommended in brochures, human waste disposal is to be not less than 200 feet from trails, water, campsites, etc. On a 66 ft. wide right of way, how do you accomplish this without trespassing on private property and, if accommodations are made with portables how will they be accessed for maintenance ? Where will they be put ?
Generate community involvement utilizing:
1) tax issues,
2) possible government (as opposed to trail group) expenditures, such as municipal assistance, in police patrolling, maintenance, engineering, design, and mowing, etc.,
3) liability concerns, such as injury, vandalism, or even death,
4) property rights,
5) Work closely with property owners already owning land - focus on the concerns of who will be the next to be affected.
6) Existing concerns and problems already affecting other areas similar to yours.
Get and keep organized: *Research *Research *Research -*Document*Document*Document
* Develop detailed files, select spokespersons, create lists, etc.
* Locate, contact, and work with others who are already involved in or affected by related circumstances.
A lot of time can be saved by not trying to "reinvent the wheel". When it comes to Rails-To-Trails time is of the utmost importance.
* Set up group meetings, get names and addresses of all persons affected and involved.
* Contact landowners whose addresses are obtained through county records.
- County Records: County Clerk, Tax Maps, Archives, ask for the Clerks assistance,
write down the names (Some may be wrong), as you find them within the records.
* Contact NARPO (see end of article) for help in finding easement deeds, railroad maps, ownership records, etc.
* Contact landowners door to door. Sometimes it may be necessary to go door to door along proposed
trail areas, this will usually be the most effective way to build support and find your friends
1)Inform people as to what is going on. Most times people are totally unaware of Trail
Proposal plans.
2) Gain support and input as to concerns.
3) Gather information on the History of the property, area and Railroad
4) Obtain assistance from others who can help with the research, communications, and
organization.
5) Obtain information on neighboring properties whose ownership may not be clear.
* Document everything by date, correspondence, notes, published articles, etc..
Working with media:
* Media tends to favor and support the trails.
* Do not be a source for, nor repeat misinformation.
1) Focus on getting the concerns and truths out to the public.
2) Storm the media with Letters to the Editor explaining concerns, problems, etc.
3) Respond immediately to any incorrect information or misleading statements.
4) If finances allow, place ads and articles if the media refuses to do it on their own.
"Read the papers".
Get background information:
* Is trail complete ? (Who owns trail segments - work with inholders)
* Is eminent domain on missing segments anticipated ?
* Don't back down - don't give up. Stay informed - use your resources.
* Get information on entire project. Use FOIL (Freedom of Information Law)if necessary on government agencies if information is not shared; avoid being blind sided. Some times it takes several attempts to obtain all information requested. Agencies do not always provide information willingly.
Political Action:
* Work with your local county, state and federal representatives, write letters, call, visit, communicate.
* Get them involved, let them know of your concerns, get them to listen, get them to react to your needs. Get them to respond to you.
* Unelect any official who is not 100% for the property owner's position. No compromise.
Community Action:
* Gather as much support as possible from concerned or affected groups, organizations, schools, churches, businesses, farmers, ranchers, landowners, homeowners, taxpayers and voters.
* Obtain letters on your behalf, expressing concerns, problems, needs, etc.
Determine: Who actually owns property ? Reversionary ? County ? State ?
* Deed Research. Investigate deeds to RR property. RRs provide only quit claim deeds.
* Research - Research - Research - don't leave any stones unturned.
After all, this very well could be your land already and you may just be unaware of it.
Do not expect the railroad to just return the property to whom it rightly belongs.
* Contact NARPO (see page 9) for help in locating easement deeds and maps.
Who actually claims to own the property being proposed as a trail ? Know who you have to deal with.
1) The railroad - or entity of the railroad
2) Public Utility
3) Private property - Individual - Trail Group - Business or Industrial Entity
4) Town or City
5) County
6) State - DEC - Parks and Recreation, DOT, Conservation Commission, etc.
7) Federal government
Find out how the property was acquired by the railroad:
* Clear sale, fee simple, or quit claim deed
* Easement
* Condemnation
* Adverse possession
* For railroad purposes only
* Reversion to seller if railroad ceases to operate or abandons rail use
The only type of conveyances that are not reversionary are fee simple or quit claim deeds that do not have explicit reversionary clauses in the deed. Any other type of deed is almost always reversionary to the abutting property owner.
* Again, determine who actually owns the property.
Are there exceptions in the deed or agreement ?
* Time restraints or other limitations - expirations of terms or agreement.
* Fencing requirements
* Grade crossings, under or over cattle crossings
* Details pertaining to drainage, culverts, etc.. such as who is going to be responsible for maintenance, repair, or cleaning.
* Usage: timber, water, mineral, farming, grazing
* Maintenance - upkeep - spraying, drainage, ditches, etc.
* Returned privilege i.e., pipelines, cables, fiber optic or transmission lines beneath the surface on the surface or above the surface. Does the present owner or user have any actual right or claim for such usage ?
* Be willing to hold the parties to their requirements. If they have true title to the land.
* When Certificate of Abandonment is applied for by a railroad, a trail group can apply for a Interim Trail Use Certificate. This is part of the Railbanking Program.
* If trail is under Rail Banking after 1985, be concerned. Active lines requesting abandonment of usage with the Interstate Commerce Commission, now the responsibility of the STB, are of great concern, as activities and discussions most often take place without the knowledge of the adjacent land owners.
* Trail groups are utilizing the opportunities to their benefit by application for an interim trail use certificate. Be aware -stay involved with abandonment proposal before it is granted by the STB, as time constraints create many problems that could complicate your situation. Rails to Trails Conservancy, a Washington D.C., green group, monitors those abandonment proceedings and tries to get trail groups involved before anybody even has knowledge of what's going on.
NOTE:
The Interstate Commerce Commission, with the passage of the "ICC Termination Act of 1995" re: H.R. 2539, has been taken over by the Surface Transportation Board (STB) which is a part of the federal Department of Transportation (DOT). The STB will basically perform the same functions as were handled by the ICC.
Provisions in The ICC Termination Act of 1995 have allowed for the scheduling of hearings at the "Congressional Level" pertaining to concerns regarding the Rail Banking program. It is with these hearings that every attempt needs to be made to express to Congress the problems, concerns and present situations that are affecting land owners nation wide, so that the present Rail Banking provisions may either be repealed or at least modified to protect the property rights of all individuals, businesses, farms, home owners, and property owners that have and will be affected by the unfair government interference practices of the present program.
The exact dates of the hearings have yet to be disclosed however it has been discussed that they may take place in the Fall of 1996. For further information on these hearings contact:
Mr. Glenn Scammel, Majority Counsel, House Subcommittee on Railroads
Committee on Transportation and Infrastructure
Room 2165, Rayburn House Office Building
Washington, DC 20515
Telephone: (202) 226-0727
* ICC Rails to Trails, An Overview of ICC Rules, November 1993. Available through STB's Office of Public Assistance (202) 565-1600 Washington, DC.
-- NYS ISTEA - NYSDOT Applicants Handbook. Available through the NYSDOT Systems and Planning Bureau (518) 457-3275 Albany, NY.
New York Farm Bureau
Paul McDowell
Route 9W
phone 518-436-8495
P.O. Box 992
fax 518-835-2527
Glenmont, NY 12077-0992
Alliance For America
Harry McIntosh
P.O. Box 450
phone 518-835-6702
Caroga Lake, NY 12032
fax 518-835-2527
Land Rights Letter
David Howard
P. O. Box 1111
phone 518-725-8835
Glovereville, NY 12078
fax 518-725-8239
National Association of Reversionary
Dick Welsh
Property Owners (NARPO)
phone 425-646-8812
1075 Bellevue Way N.E. Suite 278.
fax 425-646-8812
Bellevue, WA 98004
e-mail to: dick@halcyon.com
Stop Taking Our Property (STOP)
Joanna Waugh
500 Pottowatmie Trail
phone 219-926-7007
Porter, IN 46304
fax 219-926-8879
mail: jwaugh7596@aol.com
American Farm Bureau
John Houseman
225 Touhy Ave.
phone 312-399-5746
Park Ridge, IL 60068
fax 847-399-5896
Citizens Land Alliance
Larry Ornellas
20749 Lammers Road
phone 209-835-5204
Tracy, CA 95376
Hill Country Heritage Association
Lewis Dodd
729 S. Washington
phone 830-997-3652
Fredericksburg, TX 78624
New Hampshire Landowners Alliance
Cheryl Johnson
P.O. Box 101
phone 603-726-4308
Compton, NH 03223
fax 603-726-4025
National Cattlemans Association
Greg Ruehle
1301 Pennsylvania Avenue, NW Suite 300
phone 202-347-0228
Washington, DC 20004-1701
fax 202-638-0607
Property Rights Foundation of America
Carol LaGrasse
P.O.Box 75
phone 518-696-5748
Stoney Creek, NY 12878
fax 518-696-4288
Settler's Advocate
David Guernsey
P.O.Box 552
phone 207-265-2049
Kingsfield, ME 04947
fax 207-265-5062
Rhode Island Wise Use
Brian Bishop
199 Austin Farm Road
phone 401-392-0212
Exeter, RI 02908
fax 401-392-5007
Defenders of Property Rights
Nancy Marzulla
6235 33rd St. NW
phone 202-686-4197
Washington, DC 20015
fax 202-822-6770
Mountain States Legal Foundation
Perry Pendley
1660 Lincoln St. Suite 2300
phone303-861-0244
Denver, CO 80264
fax 303-831-7379
New England Legal Foundation
Todd Brillant
150 Lincoln St.
phone 617-695-3660
Boston, MA 02111
fax 617-695-3656