Town Roads & Right-of-Ways

By Town Attorney Eileen Brownlee, Boardman & Clark LLP

Town roads consist not only of the surfaced portion of the road but the entire width of the right of way.  The Town, by ordinance, has established a width of 66 feet for rights of way dedicated to the Town.   Some roads are as old as the Town and became roads simply through use and the width may vary.

Once a road is dedicated to and accepted by the Town, or when a road becomes a public highway by user, The Town is responsible for the improvement, maintenance and general care of road.

Questions sometimes arise regarding the rights and responsibilities of the Town and the rights and responsibilities of adjoining landowners.  Here is how some of it works..

Trees, Shrubs and Vegetation

Generally, no form of vegetation can be planted (“cultivated”) within highway rights of way without the permission of the Town.  It is fairly common for Towns to allow for the planting of certain types of trees within rights of way provided that there is no risk to public safety (for example, there is a prohibition on planting any type of vegetation in vision corners) as attractive street trees can enhance local neighborhoods and thoroughfares.

When trees, shrubs or other vegetation in the right of way create a safety hazard, including overhanging shrubs and tree branches whether the tree or shrub is located in the right of way or on adjoining property, the Town may remove the hazard by either cutting down the shrub or tree or trimming it.  When the tree or shrub is located on adjacent private property, towns will typically trim the vegetation back to the property line.  Whether vegetation in the right of way is trimmed or removed depends on a number of factors including the likelihood that a problem will recur, the overall health of the vegetation and, at times, the wishes of the adjoining landowner.  No one can remove or injure the trees on Town rights of way except for the Town or someone who has the Town's permission to do so.

The Town may order that any tree located on private property that has become diseased and poses a threat to public property be removed by the landowner.  Such trees are deemed to be public nuisances both because of the threat to public property and, in some cases, because of the danger of the spread of disease to other trees in the Town.

When removing or trimming trees within public rights of way, the Town may pay the cost of removal or trimming or may assess such cost as a special charge against the adjoining real estate.

Public Utilities and Facilities

Utility poles, lines and cables may be placed in Town rights of way with the consent of the Town.  While most of these facilities are now placed underground, telephone, electric, cable TV and similar facilities are frequently placed in highway rights of way as a matter of both convenience to the utility and service to residents.  The Town has a permitting process for the location of these types of facilities.

Other Obstructions and Encroachments

Property owners are responsible to keep road rights of way free from obstructions and encroachments.  Obstructions and encroachments can include fences, buildings, decorative and landscaping objects such as rocks or trellises and similar structures or objects. 'When such items are placed in the right of way, the Town must provide the owner or occupant of the property with a notice to remove the obstruction or encroachment within 30 days.  Failure to do so may lead to a court action for a monetary penalty and a court order for removal.

The Town does permit the placement of some landscaping and decorative items within rights of way with the permission of the Town Board.  Please see § 8.02(3) of the Town Code for more information.

Mailboxes

The Town regulates the placement of mailboxes in rights of way both to comply with U. S. Postal Service regulations and to ensure that snowplowing and other highway maintenance services can be carried out safely without damage to Town equipment or injury to its operators or damage to the mailboxes themselves.  Please see § 8.02(6) of the Town Code for more information.

Temporary Obstructions and Encroachments

From time to time, property owners find it necessary to perform work in Town rights of way whether it is repairing or replacing a driveway or culvert, performing landscaping work or depositing earth or fill within the right of way in connection with a building project.  Permits from the Town are required for these activities.

Summary

DO’S

•  Before doing any work or placing ANYTHING within a right of way other than trash, recyclables or brush for pick-up, contact the Town Hall and obtain the appropriate permit, if required.
•  Notify Town Hall of any dangerous conditions in any right of way, including the placement of encroachments, trees or vegetation that may create a safety hazard or pavement or culvert failures.
•  Mow and trim your lawn, including the portion of the lawn located in the right of way.

DON’TS

•  Install or place any items, including mailboxes, in the right of way without obtaining a permit or checking with the Town.
•  Remove any tree from the right of way without permission.
•  Change the grade of your driveway, remove culverts or fill ditches without consulting the Town.
•  Dig in any right of way without consulting the Town and/or Digger’s hotline.

Questions?

Section 8.02 of the Town Code contains the regulations for rights of way.

  Driveway and excavation permit forms are available on the Town website.  For further information, please contact the Town Hall at (608) 833-5887.

 Informational Links regarding Invasive Species, Roadside Mowing, and Roadside Spraying may be found HERE.