Lawyer says abandonment of Old 2 Rod Highway would lead to a lawsuit

Lawyers introduced more complicated terms into the debate over Old Two Rod Highway at a public information session Monday night, leading one concerned Weston resident to exclaim, “It’s just so utterly overwhelming!”

In fact, neither the Board of Selectmen nor Town Attorneys Pat Sullivan and Ken Bernhard seemed completely sure of the path the town should take, with First Selectman Bill Brennan repeatedly describing the case as a “complex” one.

In a brief presentation, Mr. Bernhard reiterated his opinion of the town’s “two options” in the case: leave the status quo or abandon the road, though he said leaving the status quo may open the town to lawsuits in the future.

“Access [over the road as it stands] is not suitable for emergency access, and in the future there could be pressure on the town to improve the road at its own expense,” he said. “There is also a potential liability issue should someone get injured on the property.”

Either way, he said, the town has no responsibility to improve the 33-foot-wide roadway.

However, Robert Fuller, a lawyer for developer Christopher Montanaro, said at the session the town would open itself to an “inverse condemnation” lawsuit if it abandoned the road — as property owners would lose the right to subdivide or build upon property with frontage on Old Two Rod Highway.

He also wondered why, after nine years of litigation, the town has suddenly decided to hurry toward a decision on the road.

“I don’t understand the urgency,” he said. “I’m not sure why it cannot continue to be as it is right now.”

Mr. Fuller said his client, Mr. Montanaro, has plans to develop the land he owns on Old Two Rod Highway, and is willing to improve the road at his own expense — though town leaders maintain there is no path or road in the location where state courts declared a public right-of-way.

There is a road there, and my client would improve the road from the point where the dirt road ends at the northern part of [Wampum Hill Road], and go straight down Two Rod Highway. He would fix that up at his own expense,” Mr. Fuller said. “No property owner is required to [fix the road to town standards]. But he would improve it enough to make it passable for emergency vehicles to get down there.”

Mr. Montanaro has the right to privately improve the road, Mr. Fuller said, because residents have “the right to improve a road if [they] have land on the road. He has the technical right to improve it.”

If the town abandons the road, Mr. Fuller said, his client — and any other land owner with frontage on Old Two Rod Highway — would still have a right to access their land, and would be allowed to install public utilities on the road, but would lose the right to subdivide their land, or even build a single home on the lot.

This, he said, would constitute inverse condemnation.

“It renders all of these properties land-locked,” he said. “I think that would be a very foolish decision.”

David Clune, a representative of the Ambler Trust — which owns property abutting Old Two Rod Highway — agreed with Mr. Fuller, and said the trust believes the abandonment of the road would depreciate the value of its assets.

“I’m concerned about abandonment,” he said, “because it would harm an asset that we have. Our job is to preserve our assets so we have more money to give away.”

David Brandt of the Aspetuck Valley Land Trust was also at the meeting to say his organization hopes the land abutting Old Two Rod Highway might be turned into a piece of preserved property.

“We would be very interested in taking a hand in preserving this. We’re more than willing to raise funds to try and preserve some of this land,” he said.