Residents along Fern Avenue in Dayton are concerned town officials may establish a 66-foot right-of-way along their current 20-foot wide road.
Located on a peninsula between Long Lake and Emmons Creek, Fern Avenue was built more than a century ago to provide access to the She She Pe Cameo Park Subdivision, as it was then called.
However, the road was originally platted to run through a swamp.
In a 1910 letter to the Dayton Town Board, the original property owners gave the town permission to relocate the road “to a more convenient place.”
The road was then built on higher ground to the east.
After a surveyor recently discovered that the actual road did match the plat, County Planning and Zoning Director Ryan Brown notified Dayton Town Chairman Chris Klein of the problem.
At a public hearing on Tuesday, Aug. 26, Klein said the town needed to discontinue the platted roadway and recreate Fern Avenue as an unrecorded town road.
He also informed Fern Avenue residents that the town road needed to be brought up to state standards.
“Any laid-out highway that has not been fully or sufficiently described is presumed to be 66 feet wide,” Klein said.
Currently, the pavement on Fern Avenue is about 13 feet wide, while the shoulders are a little more than 3 feet wide.
Fern Avenue residents have already been in contact with lawyers.
In a letter to Klein, Madison attorney Dean Richards asked the town board to consider the impact its proposed action could have on property owners.
Richards noted that while state law presumes that an unrecorded road is 66 feet wide, “It does not prevent the town board from considering and establishing an alternate width. In the case of Fern Avenue, a 66-foot right of way is unneeded and unjustified.”
Richards urged Klein to adopt a 20-foot right of way.
“This is not a situation in which a new road is being planned and future development may necessitate roadway expansion,” Richards said in his letter. “Fern Avenue is a mature road and will not be the subject of expansion in the future. For any of a number of reasons, the roadway will exist in the future as it exists today.”
Richards argued that considerations of drainage ditches, wider shoulders and a wider road were unnecessary because the road “has been in existence for a very long time and the appropriate road width and ancillary improvements have been settled through the passage of time.”
Richards is representing Carolyn Elman, a Fern Avenue property owner. She was at the Aug. 26 public hearing.
“There’s a sense of beauty there that could very easily be destroyed,” Elman said.
“I don’t believe a 20-foot road right of way can be justified in the public interest,” Klein said.
Town Supervisor Jim Peglow said that while he agreed that 66 feet may be too wide, he also expressed concerns about how narrow Fern Avenue is.
Peglow noted that modern fire trucks and ambulances are larger and may no longer be able to drive all the way to the end of Fern Avenue. He said the town board is responsible for ensuring the delivery of emergency services.
An issue for Fern Avenue residents is how the wider road right of way will affect their property.
If the right of way is extended another 20 feet it will decrease the square footage of their lots, which in turn will restrict land divisions and reduce the amount of impervious surface allowed on the lots.
Under the Shoreland Zoning Ordinance, impervious surfaces, such as buildings, patios and driveways, are restricted to no more than 15 percent to 30 percent of the property within 300 feet of the high-water mark.
“All existing structures would be considered legal, nonconforming,” Ryan Brown said at the hearing.
Brown also said that if the town board decides to do nothing regarding Fern Avenue, the county would have to determine the width of the right of way.