MUNICIPALITIES; REAL ESTATE; ROADS;
December 24, 2003
LOCAL ROAD ABANDONMENT AND ABUTTING PROPERTY OWNERS
By: James J. Fazzalaro, Principal Analyst
You asked what options an abutting property owner has when a town abandons a local road. You also wanted to know if the state, through the Department of Transportation (DOT) takes any position in these matters because of its provision of state funds through the town-aid highway program. Finally, you wanted to know whether there are any arrangements made for the towns involved to work together when improvements are being made to a road that crosses a state border.
The Office of Legislative Research is prohibited from providing legal opinions and this report should not be considered one.
By law, the selectmen of a town may discontinue all or part of any highway except when it is laid out by a court or the legislature, or when it is within a city or borough having control of the highways within its limits. The action of the selectmen is subject to approval by a majority vote at any regular or special town meeting. The discontinuance must be in a writing by the selectmen and the process must be a formal one.
Anyone aggrieved by a decision by the selectmen may apply to the Superior Court for relief within eight months. Upon determining that the discontinuance has met legal requirements, the court must appoint a committee of three disinterested persons to determine whether or not the road is of common convenience or necessity. If the committee finds the road to be of common convenience or necessity, the act of discontinuance must be reversed; otherwise it stands.
By law, a property owner abutting a discontinued or abandoned highway has a right-of-way over it to the nearest or most accessible highway as long as the right-of-way was not acquired for a limited access highway. Case law has established that the discontinuance does not become final and effective until the eight months have expired and during this time the selectmen may rescind their original action.
Similarly, case law states that the statute granting a right-of-way for abutters does not allow them to reinstitute public travel on the road. The easement they enjoy is a private not a public one. Finally, the Supreme Court has ruled that in order for an abutter to receive compensation as a result of a town’s action to abandon a road, the abutter must have suffered a total and permanent destruction of his right of access. The fact that the cost to him of making or keeping the road passable could represent an unbearable or unacceptable economic burden does not establish the total destruction of his right of access.
The Department of Transportation does not normally take any position regarding such matter based on the fact that the state provides funds for towns under the Town-aid Highway Program. Town-aid funds are essentially unrestricted grants to municipalities. The laws governing them do not require that roads on which the funds may be spent by towns remain open in perpetuity.
Connecticut and its neighboring states normally keep each other informed when improvements are going to be made to roads that span state lines, but other formal agreements are unusual. Municipalities do not appear to be prevented from making arrangements with counterparts in other states for roads under their respective jurisdictions.
LOCAL ROAD ABANDONMENT
Statutory Authority for Discontinuance
Abandonment of a local road is governed by state law. The law (CGS § 13a-49) states that the selectmen of any town may, subject to approval by a majority vote at any regular or special town meeting, may discontinue in its entirety any highway or private way, or land dedicated as a highway or private way, or may discontinue any portion of it or the town’s property right in the land, except when (1) it was laid out by a court or the state legislature or (2) it is within a city or borough having control of highways within its limits. The discontinuation must be in a formal “writing” signed by the selectmen.
If someone is aggrieved by a decision to discontinue a highway or private way, he may apply to the Superior Court for relief. The process is the same as the one that applies for appealing decisions of selectmen in laying out highways. Specifically, the aggrieved person must make application to the Superior Court for the town in which the road is located within eight months. The application must be heard and a determination made by a panel of three disinterested parties appointed by the court. The issue the panel must determine is whether or not the highway is “of common convenience or necessity. ” If the determination is in the affirmative, the discontinuance must be set aside. If in the negative, the discontinuance is upheld. However, the court may set aside the panel’s report for any irregularity or improper conduct by the panel (CGS § 13a-62).
The Superior Court has the statutory authority to discontinue any highway in its judicial district that cannot be discontinued by the selectmen. This can be done upon anyone’s application. However, all questions regarding the convenience and necessity of the highway must be decided by a committee appointed by the court, unless the parties agree otherwise. Anyone may appear and be heard regarding the application for discontinuance. All such applications must be served as other types of civil process on the towns in which the highway is located (CGS § 13a-50).
Right-of-Way for Abutting Property Owners
By law, a property owner abutting a discontinued or abandoned highway has a right-of-way over it for all purposes for which a public highway may be used to the nearest or most accessible highway as long as the right-of-way has not been acquired in conjunction with a limited access highway (CGS § 13a-55).
Court Decisions Regarding Discontinuance Process
Some of the details of the discontinuance process have been shaped by several court decisions. The action by the selectmen and the approval by the town must be “formal and definite, so as to give notice, and the method provided for discontinuance must be “strictly followed. ” (Clark v. Town of Cornwall, 93 Conn. 374 (1919). The town’s formal approval must be the precise act of discontinuance made by the selectmen, but this approval can be given before or after action by the selectmen (Welton v. Town of Thomaston, 61 Conn. 397 (1892); City of New London v, New York, N. H. & H. R. Co. , 85 Conn. 595 (1912); Brown v. Novak, 17 Conn. Supp. 76 (1950)). However, the use of the word “abandon” rather than the word “discontinue,” which is used in the statute, does not invalidate the town’s action (Doolittle v. Town of Preston, 5 Conn. App. 448, (1985)).
The courts also have found that in an appeal of a discontinuance under the statutes, all questions of the validity and legality of the action of discontinuance on the part of the selectmen or the town should be raised in, and determined by, the court prior to the appointment of the committee the statute requires (Clark v. Cornwall, 93 Conn. 374, 377; Cone v. Darrow, 148 Conn. 109 (1961)). The committee the court appoints has the sole function of determining the question of the common convenience and necessity of the road at issue. This is its only duty (Scutt v. Town of Southbury, 55 Conn. 409 (1887)). If the committee concludes that the road at issue is of common convenience and necessity, the discontinuance must be set aside. If it is found not to be of common convenience and necessity, the discontinuance must be upheld (Cone v. Darrow, 148 Conn. 111).
The discontinuance of a highway does not become final and effective, nor are any interests vested of acquired pursuant to it, until the expiration of the eight months the law prescribes for an aggrieved party to apply to the Superior Court for relief (Clark v. Cornwall, 379). During that period, the selectmen may rescind or revoke their original action.
Passage Rights of Abutting Owner
By law, as noted above, an abutting property owner along a discontinued road has a right-of-way over it to the nearest and most accessible public highway. This law was passed in it original form in 1959. Prior to its enactment, the courts had determined that the legal discontinuance of a public road extinguished both the public easement of travel and the private easement of access over it that was available under common law. After enactment of the law, the courts have found that although the public easement of travel ceases with the discontinuance, the private easement of access continues and abutting owners continue to have easement of access over the discontinued highway that includes the right to travel over and to improve the existing roadbed (Luf v. Town of Southbury, 188 Conn. 336 (1982)).
The provision of the law providing right-of-way over the discontinued road “for all purposes for which a public highway may be now or hereafter used” was added in 1990. In rejecting a plaintiff’s claim that this new language thus allowed reinstitution of public use of the discontinued road and, in effect, conferred a continuing right of public travel over abandoned roads, the court found that the legislature intended only that this language provide the ability for abutting owners to use the private right-of-way along the abandoned road to carry utility services (Tighe v. Town of Berlin, 259 Conn. 90 (2002)). The court thus reaffirmed the notion that the only easement that exists after discontinuation is that belonging to the abutting owners for their own use and that these owners have no right to maintain the discontinued road as a private equivalent of a public highway.
Damage Compensation for Abutting Owners
The Connecticut Supreme Court has also addressed the question of whether discontinuance of a road entitles the abutting owners to compensation for an alleged deprivation of the use of their property. In general, it appears that compensation may rest on whether the discontinuance actually deprives abutting landowners of their only practical access to the public highway system, and thus falls under constitutional principles governing compensation for taking of private property, or merely inconveniences them, even if this inconvenience is significant. There are two cases that appear to be the most significant in this regard—Cone v. Waterford and Luf v. Southbury.
In Cone v. Waterford, the court noted that, under ordinary circumstances, the only remedy available to a person aggrieved by discontinuance is the statutory right to appeal under CGS § 13a-49 and 13a-62. There is nothing in either of these laws or in any other statute that confers any right to recover damages for discontinuance. The court went on to state that because of the limited liability imposed on towns for acts performed pursuant to governmental duty, there can be no right to recover damages for a discontinuance even though it renders access to a public highway more inconvenient. However, as in the case before it, where a town, even though it is carrying out its governmental duty discontinues a highway that provides an abutting owner with his only practical access to the public highway system, it “inflicts on that abutter a direct injury to his right of access—one which is special and peculiar to him, differing form a general damage suffered by him in common with the public, not merely in degree, but also in kind. ” For such injury, the court concluded, the abutting owner may recover damages either under statutory provisions if available or by constitutional right (Cone v. Waterford, 279, 280). The court interpreted this as an exception to the common law exception to the general rule of nonliability for an act done under governmental duty that applied where there is “practically a total and permanent destruction of the abutter’s right of access to any public highway. ” (Id. )
In 1982, the court modified the position it took in Cone to take into account the changes to the use of common law principles brought about by the passage of CGS § 13a-55. Although this law was in existence when Cone was decided, it was not applied in the decision making, mainly because the discontinuance at issue occurred prior to its enactment and the defendant town did not urge that it be applied retroactively. Thus the court “had no occasion to decide the case on other than common law principles. ”
Luf was a case of first impression in which the court had to determine whether an abutter had suffered a total and permanent destruction of his right of access in light of a grant of right-of-way over the discontinued road provided under CGS § 13a-55. The court found that CGS § 13a-55 had superceded Cone in that it reaffirms the principle that the private right of way over a discontinued road is preserved even though the public right of passage is extinguished (Luf v. Southbury, 188 Conn. 336, 343). Since the private easement is preserved, mere discontinuance is no longer actionable so long as abutting owners are at least theoretically capable of maintaining the road. The statute, in effect, shifts the burden of maintenance from the town to the abutters who might use the road. The fact that the cost of making or keeping the road passable could represent an unbearable or unacceptable economic burden does not establish the total destruction of the abutter’s right of access (Id. , 348. See also, Sostman and Anderson, The Highway Right of Way: An Analysis of the Decisional Law in Connecticut Concerning Public, Private and Proposed Roads from Establishment to Abandonment, 61 Conn. B. J. , 325 (1987)).