WESTERLO  —  When is a road no longer a road?

At its July 5 meeting, the Westerlo town board availed itself of its power to certify that a road is no longer a public road because it has had little, or no, use and has been unmaintained for a long time — for at least six years to be exact.

New York State Highway Law states “every highway that shall not have been traveled or used as a highway for six years, shall cease to be a highway.”

Six years of disuse allow a town board to submit a certificate of abandonment. Once that’s done, the disused road becomes, officially,  a private road: Only the owner, or owners, of the land the road crosses are able to travel on it.  The “public right of way” is, in effect,  revoked.

Towns usually don’t initiate abandonment; property owners do.

Abandoned roads can make for unhappy neighbors, as demonstrated by the long, contested process leading up to the July 5 certification. The board had received an earful from concerned parties at a May 25 public hearing;  then deliberated in executive session at its June meeting, and finally acted at its July meeting.

The process began when John and Dianne Sefcik asked the board in March to declare abandoned the dirt  portion of Clickman Road that extends beyond their home at 194 Clickman Road and continues across land they own. Sefcik, who serves on the town zoning board, told The Enterprise that he had been informed by the town 11 years ago that this unimproved and unmaintained portion had been legally abandoned.

But in November of last year, when a real estate agent representing a neighbor showed up, he discovered that the lonely road was still on the books as a road.

Clickman Road can be found on Google Maps and on the official Albany County map. It runs southwestward from Route 413 (Chapel Hill Road) and then abruptly stops before it reaches the Westerlo/Rensselaerville town line.

For almost a mile from Route 413, the road is surfaced and town-maintained. But about 150 feet beyond the Sefcik home at 194 Clickman Road, it becomes unsurfaced, unmaintained, and pretty hard going, by many accounts, for about another half mile, before it finally peters out.

The Sefciks’  March petition to have the road once and for all  abandoned met with resistance. Lawyers got involved, an adjoining property owner protested, and folks who liked to use the road tried to block its becoming private.

So emphatic was the opposition that the town conducted a public hearing to allow everybody to say their piece. The minutes of that May 25  hearing show just how complex and contested the flipping of a road from public to private can be.

Use it or lose it

Clickman Road is a “user” road, which means it has never been “formally…deeded or dedicated” to the town.

It became a highway, says the town, “after having been used by the public for the statutorily required period of time.”  In other words, use can make a road; disuse can unmake it.

No developer laid out Clickman Road. No town board ever decided to make a road there. Who knows? It may have once been a path trod by local Native Americans. It came to exist through use.

At some point, though, the town surfaced  all but the last half mile, or so, of this informal road.  It has continued to maintain this part ever since.

Yet at the hearing, some Westerlo residents maintained that the last half mile had not fallen into disuse as the Sefciks claimed.

In a relevant 2001 court case — Smigel v. Town of Rensselaerville — a state appellate court ruling declared “recreational uses” are enough to quality a road as still being in use.

Photos taken of Camp Winsocki Road satisfied the court that “travel over this road by such disparate groups as snowmobilers, bicyclists, cross-country skiers and pedestrians” would follow a roadway clearly distinguishable from  “an area overgrown with brush and thick woods on both sides, precluding travel other than on the road, except with extreme difficulty.” Where there’s a way, there’s a road.

Some who spoke at the May 25 Westerlo hearing recounted how they had been using that little-traveled half-mile.

Ruth Savino said generations of her family would “walk or picnic to the Rensselaerville end of Clickman Road” at least until her sister was told to “get off.”

Another speaker, Betty Filkins, spoke of snowmobiling there, but she pointed out that a June road survey would necessarily find no evidence of a snowmobile having used the road.

But the nub of the dispute involved something other than recreational pleasures. It involved property rights and access.

Speaking to The Enterprise, John Sefcik said that, in the 12 years they have lived there, they have seen a total of maybe 10 people go down the road, hunters usually.

Ed Newell is the a neighboring property owner.  He owns land to the north of Johnny Cake Hill Road — the road which Clickman Road would meet if it continued southward instead of veering west toward the town line. His land gradually rises to the north, approaching the Sefcik parcel.

His great-grandmother purchased the land in 1928, Newell said, and he grew up in a no-longer-standing farmhouse on the land. The family has not farmed the land since 1957. Its northern acres come near to the unmaintained part  of Clickman Road. Or do they border it? Do the Newells, in fact have frontage on the road?

According to a  submission to the hearing by surveyor Henry Whitbeck, who did the original 2003 survey for the Sefciks, no shared property line exists between the Newell and the Sefcik parcels, but rather only “a point of contact so small as to be infinitesimal.” He also  reaffirmed his observation that “the Newell parcel is not an abutter parcel to the abandoned portion of Clickman Road.”

Sale stymied

Newell is selling his land, which means he has a stake in whether Clickman remains a public road for its whole length.

He spoke to The Enterprise after the town board decision on abandonment went against his interests.

He explained that he has lost two prospective buyers for the land. Both envisioned building a home in the northwest corner of the land, a high point with long views to the Catskills to the south. He says he lost both possible sales because access to Clickman Road was no longer a selling point, once the possible access  road became non-public.

Newell estimates it would cost a new owner as much as $60,000 “to run a driveway from Johnny Cake Hill Road to to the northwest corner,” the most desirable building site. Newell’s real estate agent, Tracy Boomhower of County View Realty, said the driveway would have to be one-quarter mile long. A tax map of the Newell property, provided by Boomhower, shows its northwest corner touching the edge of the Sefcik property, but she concedes that such maps are often not accurate.

She also confirmed for The Enterprise that two prospective buyer had lost interest once they learned they could not enjoy access to Clickman Road. A recent $10,000 price reduction for the Newell land, she said, was another direct result of the road’s official abandonment.

Newell’s main beef with the town he says is “nobody went up there to take measurements “ to determine whether his property line bordered the road. When he himself measured from the center of the road to his property  line, Newell said he found the distance to be within the distance that most towns go by to establish whether a property is, in fact, on a road.

At the May 25 hearing, Newell claimed that “access from the road to the farm had been used his entire life, long before the Sefciks bought their property.”

He says he remembers as a boy going through  an opening  in the stone wall  edging the road on their side of the road —  a wall, like its counterpart across the road, that has probably  been there ever since the land belonged to Rensselaerwyck Manor — to access the the upper fields of his grandfather Jeffrey Clickman’s farm to the northwest.

At the hearing, Newell said his father, who is now in a nursing home, no longer brush-hogs the dirt road as he once did.  But Newell said that he himself “can still drive down to the town line in a four-wheel vehicle.”   He displayed photos he took of the logs in the roadway.

Newell, who lives in the town but not on the for-sale property,  is selling 93 acres and a mobile home for a current list price of $234,500.  

Westerlo town assessment rolls show a valuation of $421,939 for the Sefcik home and their 135 acres. Newell’s 93 acres and the mobile home is valued at $132,653.

Boomhower  spoke at the public hearing. She said she tried  last November to drive all the way down Clickman Road but found a chain blocking access to the unpaved portion. She walked to a point she believed “to be the opening shown on a tax map” — apparently the same opening in the stone wall through which Ed Newell passed as a boy — and took photographs. Walking back to her car, she was challenged by Sefcik who was “aggressive and angry,” she said.

Sefcik told The Enterprise that he had been surprised to see a stranger walking up his driveway — which partly occupies the beginning of the dirt road extension of Clickman Road —  past “private property” postings. “I was not angry. I told her she was trespassing and showed her the boundaries of the Newell property.”

He said at the time he still thought the road had been officially abandoned

In his own statement to the hearing, Sefcik recounted how town supervisor Richard Rapp and Ken Wright, the  highway superintendent at the time, came to his property in 2004. He said they told him  that he could go ahead and build his home at the end of the town-maintained first mile of Clickman Road knowing that the rest of the road, which crossed his land, had been abandoned.

He stated that if he had not received such assurance, “we would not have built our house.”

“I pounded  an iron stick at the edge of the road (which is still there),” he told the hearing. The town officials agreed that it marked the end of town-maintained Clickman Road. “I was told that, if I wanted to put my driveway in the old roadbed, that was fine.”

He stated, “They [the Newells] have no frontage on the old road  “even at the point in their property closest to the roadbed...someone would have to drive over at least 11 feet of our property to reach the old roadbed.”

Attorneys for both sides were present at the May 25 hearing. They tussled over the question of whether an easement, allowing public passage through the property, might exist.

The Sefciks’ attorney, Kenneth Stegner, said the Sefciks’ title shows no such easement. However,  Jon Kosich, the Newells’ attorney, said the Sefcik title does not go back far enough: there could be easements that were granted in the 1800s.

So it went — a stew of history, ancient stone walls with an opening made long ago, property rights, “user” rights, and the curious law that allows roads in New York State to be abandoned.

At its next meeting, in June, the town board took up the matter in executive session. But the board put off any decision until its July meeting.

At that meeting, all four town board members voted, without discussion, to grant the Sefciks’ petition and certify abandonment “based on the non-use of said portion of Clickman Road by the public for at least six years.”

Another road bites the dust

The board also acted without public discussion to certify abandonment of a dirt road entirely within land owned by Michael and Linda Ruella.

This road — known by three names: Zeh Drive, Willsie Road, and Willsey Road—runs from Route 408 eastward to Lake Road, which runs north-south along the length of Oderdonk Lake.

The Ruellas own about 119 acres, according to town tax rolls, extending  from Route 408 eastward  to Lake Road, as well as a home where Zeh Drive meets Lake Road.

Like Clickman Road, Zeh Drive is a user road, never “deeded or dedicated” to the town.

But in 1996, the town added the last one-tenth mile of Zeh Road, where it meets Lake Road, to its inventory, improved it, and has maintained it ever since. This little bit of road was designated Abbey Road. It leads to the Ruella home.

With no public hearing this time or any preliminaries, all four board members approved a resolution declaring “the rights of the town and the public to the unpaved portion of Zeh Drive have been abandoned as a right of way.”

Conflicting property interests were at not at stake.

Town supervisor returns

Town Supervisor Richard Rapp, who was absent from the June meeting, returned to helm July’s  town board meeting.

During the meeting, he made a public announcement that he had suffered a stroke from which he was recovering well, but said his vision is not yet back to normal.

A member of the audience praised him for his “straightforward” handling of the health issue.

Solar moratorium to be discussed

The Enterprise learned that a proposed town moratorium upon in-ground solar installations will be discussed at the workshop meeting of the town board scheduled for Tuesday, July 19, at 7 p.m. in the town hall.

Democratic Committee chooses a candidate

The town Democratic Committee met Tuesday and interviewed three candidates for the town board seat that has been vacant since Theodore Lounsbury resigned early this year. Committee chairperson William Bichteman, who is also a town board member, said he did not want to reveal the name of the successful candidate until the next meeting of the town board, when the board will vote whether to appoint the recommended candidate.

The board is made up of three Democrats and one Republican. The appointed person would have to run in the November general election if he or she wishes to retain the seat for a full term.