This is a printer-friendly version of an article from Zip06.com.
09/12/2023 11:16 AMWhen I-95 rolled through Madison in the 1950s, Fairview Drive was essentially cut in half, leaving residents living on the section off Copse Road with an interesting quandary: Who owns this section of Fairview Drive?
Madison is no stranger to private roads, but with the construction of the highway, Fairview Drive’s ownership has been left up in the air for nearly 70 years. The street, unpaved and unmaintained, is at the center of a dispute between residents and the town.
“The town is saying that the burden of proof is on us. And that we had to prove it, but we have all the documents from the town stating it’s a town road. They say that because the residents have treated it as a private road for so long, that it is private,” said Fairview Road resident Lynda Montesi. “The road is really deteriorating badly, and this has been a constant fight for the last 10 years.”
The documents asserting Town ownership date to the 1970s, however, according to town officials, later documentation insists that this small section of Fairview Drive is a private road.
According to state and town records, when I-95 was built in the 1950s, it cut Fairview essentially in half; the section in question runs from Copse Road, jogs around a corner, and then stretches for 100 yards or so, ending in a “T” at Hunter’s Trail. While the majority of the road is dirt, the Town paves a very small section of the road created by the state during the highway construction that prevented the road from being a dead-ended road. Still, the town claims that it is only responsible for that tiny stretch of road and not the entire length.
According to First Selectwoman Peggy Lyons, the matter was “settled” in 2017 when town officials, including the town attorney, deemed the road private. In a legal opinion letter dated December 2017 and addressed to then First Selectman Tom Banisch, attorneys from Berchem Moses Law Offices definitively stated that this small section of Fairview Drive is private.
“In 1972, there was a resolution of the Board of Selectman recognizing various roads within the Town of Madison as ‘public roads.’ One of the roads listed is ‘Fairview Drive.’ Attorney Cirello [then attorney for the residents] relies on this resolution for his claim that the town is responsible for repairing the road. Importantly, however, the resolution states, ‘As part of this resolution, the Board of Selectman attaches hereto a map designating the location of various Town roads listed in this resolution…’ and it shows only the initial portion off of Copse Road as a public road. The section at issue is not listed as a public road.” The opinion continues, “Based upon the reference in the 1972 resolution to the map, and the fact that the map does not show the portion in dispute as a public road, as well as the fact that Town has not historically maintained that portion of the road, it is my opinion that the road designated as Fairview Drive that turns left and is unpaved is a private road and not a public road.”
However, despite that letter, Motesi claims she has a map indicating the road is public.
“We’ve gone back and forth with Peggy Lyons, Filmore McPherson, all the selectmen before that…The town engineer says the Town time goes by the map. But the map that I have is dated from 1971. The list of approved roads I have are from 1972,” Montesi said. “So, can someone explain why the map is trumping the list from 1972? The selectmen in the past have said that is because the list was inaccurately filed.”
Montesi said that the 1972 list includes 57 roads, including Wall Street, East Wharf Road, and West Wharf Roads — all now considered Town-owned and Town-maintained.
“But Middle Beach is on that list; Island Avenue is on that list. So, why is it only Fairview is the only road that is wrong?” Montesi said. “They are just being unreasonable, and it has just been a nightmare.”
While many residents like the idea of a private road, noting a decrease in thru-traffic and safer streets, private roads also come with a price tag. Road repairs, paving, and snow removal must all be addressed — often by residents.
“This is settled as far as my understanding of it. The opinion letter (of 2017) kind of closed the door on it, and I didn’t see any reason as to why we would change our opinion on it,” Lyons said. “I know they [residents] weren’t happy with that because there obviously is an expense to that [a private road]. I get that. It does cost a lot to repair and pave private roads, as we know, but we do have a lot of private roads in Madison. The town can’t deviate from policy because then we would have all kinds of requests from private road residents.”