Sure would be sweet in these last, precious days of summer to go for a swim in a pristine pond 10 miles from downtown Burlington. But you can forget about taking a dip at Indian Brook Reservoir in Essex unless you’re a resident of the community — or show up at the gated entrance with someone who is.
Aren’t these public waters that should be open to all users, or at least to all Vermonters? Not according to Essex officials, who are barring access to nonresidents.
Essex’s ban takes the form of a “moratorium” imposed in 2011 and extended earlier this month until at least next year. Under the rules now in place, anyone who bought a nonresident pass to Indian Brook Reservoir prior to 2011 could pay to renew it in 2012 and this year. But if you don’t already have a nonresident pass and aren’t accompanied by a pass-holding townie, you’ll be denied entry to the 575-acre park and its 60-acre pond.
Shelburne’s town beach has been off limits to nonresidents since 1974. Outsiders can get in only if they arrive in a car containing a resident pass holder. The tony town, where the median home-sale price currently stands at $479,000, appears to be the only locale on the Vermont side of the lake that won’t allow nonresidents even to buy their way onto the beach.
Burlington, South Burlington and Charlotte all require outsiders to pay more than residents for a season or day-use pass to their beaches on Lake Champlain. In Burlington, for example, it costs nonresidents $60 and residents $45 for a summer parking permit that gets you into North Beach, Oakledge and Leddy parks. But anyone can access those areas for free via the bike path.
Lake Iroquois is jointly overseen by the towns of Williston, Richmond, Hinesburg and St. George. The recreation district they formed in 1958 charges current residents of those towns $25 per car for a season pass; $50 for nonresidents.
“I can understand why they want to restrict access,” University of Vermont biologist Heather Axen says in regard to Indian Brook Reservoir. “But I’d like to be able to use it even if I had to pay a fee.”
Axen, a triathlete who lives in South Burlington, swims regularly in Indian Brook because its “calm, warm water” is ideal for training. She gets access via friends who are Essex residents — or she arrives prior to 8 a.m., when the guards go on duty.
Someone posting on Front Porch Forum under the name Pat Myne complained recently that he or she was recently prevented from fishing at Indian Brook. Contacted via email, Myne supplied copies of messages sent to various state lawmakers from Chittenden County criticizing Essex’s exclusion policy. No effort to redress Myne’s grievance appears to have been made.
Some of those told they can’t enter Indian Brook simply ignore the restriction and drive right in, says Emily Johnson, a college student who works 30 hours a week as a gate attendant. Others argue vociferously against the policy — and if they refuse to back out, Johnson calls for help from town bike-patrol officers who, in turn, threaten to summon the cops.
Essex Parks & Recreation chief Ally Vile confirms that “there are some people who have complete disregard for the rules and policies.” Their defiance “puts a damper on the enjoyment of the park by others,” Vile adds. No one has been arrested, so far, for disobeying the ban on nonresidents, she reports.
Vile points out that the Town of Essex owns both the reservoir and the park surrounding it. It’s thus the locality’s prerogative to decide who gets in and who doesn’t, she suggests.
Last year, however, the Vermont Supreme Court ruled against Montpelier’s policy of forbidding all public access to Berlin Pond, a reservoir two miles to the south of the city from which it draws its water. Montpelier owns almost all the adjoining land, but not the pond itself, which is state property. The city had argued that its restriction was needed to protect the quality of the drinking water. Essex can’t make that claim because Indian Brook is no longer used as a reservoir.
The relevance of the Berlin Pond ruling in Essex’s case is unclear, comments Vermont Law School professor Patrick Parenteau, who lectures on the Public Trust Doctrine as part of his class on water-quality law. Essex may or may not be acting in accordance with the Vermont Constitution, he observes. But Parenteau is pretty certain that Shelburne is not.
That town’s residents-only policy “sets off all kinds of alarm bells for me,” the prof says. “Lake Champlain is clearly public water, and access to it is a right, if it’s not via someone’s private property.”
The courts have ruled that towns can lawfully charge nonresidents higher fees for use of their facilities, Parenteau notes, as long as a town has a “reasonable basis” for doing so. But fees levied on outsiders could be so high that “I could conceive of a situation where they’re being used to deny minorities access,” Parenteau adds.
Lori Fisher, head of the Lake Champlain Committee, says it’s her group’s view that “people should have access to the lake without having to own property on it.” In regard to Shelburne’s residents-only policy, Fisher declares, “We’d like to see that access broadened.”
Shelburne isn’t actually restricting access to the lake per se — only to its beach, says town parks & rec director Betsy Cieplicki. “We don’t tell anyone to get out of the cove down there,” she reports. And that argument shouldn’t be seen as specious, Parenteau remarks. “It’s an interesting distinction,” he says.
Cieplicki, however, is no fan of the beach ban. “Things would be a lot easier if we didn’t have that situation,” she says. She notes that nonresidents are regularly turned away from the 200-foot stretch of shoreline owned by the town, “and we don’t enjoy doing that.”
Shelburne Town Manager Paul Bohne says he doesn’t know why the rec committee decided in 1974 to adopt the restriction. He also declines to comment on its legal status. But asked if he can see a rationale for it, Bohne says, “On the nicest days of the year, the beach is mobbed with residents and their guests, so it’s not a bad idea then.”
Col. David LeCours, chief warden for the Vermont Department of Fish & Wildlife, says Shelburne is likely within its rights in restricting access to its beach. “Towns do have the authority to do that,” he declares.
Essex Parks & Rec chief Vile suggests the moratorium on selling passes to nonresidents might eventually be lifted, or eased. It was put in place, she says, because the more than 4600 Indian Brook pass holders had taken a toll on the park’s trails, which are used by pedestrians, bikers, dogs and horses.
UVM graduate students have been commissioned to conduct a study of usage patterns and “carrying capacity” at Indian Brook, Vile notes. Depending on what that study finds a year or so from now, the rules of access could be changed, she says. One possibility, Vile suggests: “opening it to nonresidents but limiting the number of passes for sale to them.”
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