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No way around the Right-of-Way: How a fundamental flaw in planning ignored by KTA adds new costs and delays to Chandler Mill Trail

Right-of-way: “the legal right, established by usage or grant, to pass along a specific route through grounds or property belonging to another.”

As described elsewhere, there has been little real progress over the past two years on the Kennett Greenway, despite the expenditure of hundreds of thousands of public dollars in design and legal fees, and hundreds of staff hours. Despite this lack of progress, the agency currently leading these efforts on behalf of Kennett Township - the Kennett Trails Alliance (KTA) - has been reluctant to deviate from its own “vision” for the Greenway. At the heart of the matter is KTA’s insistence that Greenway should predominantly be a 10’ wide paved path (“shared-use path”) that winds about 14 miles through the countryside.

Besides being a very expensive proposition, there would be nothing wrong with this vision IF the Township had - or could readily obtain - the necessary rights-of-way to implement it. But at least 2 miles of the likely route of the Greenway will of necessity go through private land, where in most cases there is little hope the Township can acquire the rights-of-way, even over time. To be blunt, we don’t know of a single case where private landowners has agreed to allow a ten-foot-wide paved public trail through their otherwise pristine country property - and who could really blame them?

But even where the Township owns a right-of-way - for example, alongside a Township road - the conditions along that road may require additional easements to accommodate such a wide, paved path. A perfect example is Chandler Mill Road, where the Township is currently trying to implement such a shared-use trail as part of the Kennett Greenway. Despite two years of effort, the KTA and TSC are still not able to come up with a design for the Chandler Mill Trail that can be implemented without acquiring additional rights-of-way from private residents, some of whom are strongly opposed to this particular trail design.

Despite the lack of progress implementing this ‘vision’ in Kennett Township, KTA has systematically rejected efforts to change course. We believe that this arises from KTA’s mistaken belief that they will somehow be able acquire the right of way through private lands needed for the route. In this post, we illustrate how KTA’s misplaced assumptions, unrealistic expectations, and refusal to consider alternatives have been very costly, leading to years of delays, and now tens - if not hundreds - of thousands of public dollars on designs that may never be realized. And that this should raise doubts about whether other plans promoted by KTA are realistic, like the proposed Red Clay Park. Go the home page for the Kennett Greenway on OpenKennett and click on the Greenway Timeline button, for more details on the chain of events since 2014.

The basics: How to acquire the Right of Way for a trail or path

The first thing to understand in planning any path or trail is that you must acquire the right to build the trail on the properties along the route… the right of way. The path forward is easiest if you already own the property. Otherwise you must either buy the property, or ask the property owner to give or sell you that right in the form of a trail easement. Regardless, no trail can legally be built through environmentally sensitive lands that have already been protected through a conservation easement. These are the constraints that trail designers face everywhere. The fundamental challenge with the route proposed for the Kennett Greenway? It has included significant sections through private land.

Make no mistake - the failure to acquire the right of way through one small private property can derail the best trail. Consider the Struble Trail, a very pretty and very popular 2.6 mile trail along an almost continuous 6.3 mile stretch of abandoned rail owned by Chester County. The problem is a 700 foot gap through a 6 acre privately owned parcel that bisects the route north of Dorlan Mills Road, For more than a decade, this gap has prevented the trail from connecting to the immediately adjacent, 1800 acre Marsh Creek State Park, and stalled Chester County’s wonderfully detailed plans for an extension totalling 13.7 miles.

Up until about two years ago, many advocates of the Kennett Greenway still assumed that it might still be possible to complete it over time to include a continuous shared-use loop trail by gradually acquiring the necessary rights-of-way through acquisitions and easements. But as various acquisition attempts at key sections of the proposed route fell flat, some of us began to recognize that this assumption might not be realistic, and we might need to change course. But not KTA, which continued to make unrealistic and costly assumptions about the likelihood of ultimately securing the rights-of-way, despite the lack of progress. Unfortunately, our Township Manager and BOS have continued to entertain this delusion for the last two years.

KTA discards two years of planning

Evidence of KTA’s unrealistic assumptions emerged more than 5 years ago, soon after the first multimillion dollar grant for the Greenway was received for the Chandler Mill Road section. Consistent with its unrealistic “vision” for the Greenway, KTA insisted on developing plans that would include a 10’ wide paved path through a particular private property protected with a conservation easement. KTA claimed repeatedly that this was feasible and appropriate, despite the objections of other members of the Kennett Township Trails and Sidewalks Committee (Trail Committee), the community at large, the easement holder, and even the property owners themselves. After holding up work on more realistic options for over two years to pursue their “vision” for the Greenway, and wasting thousands of public dollars on trail designers in the process, KTA finally relented, leaving less than a year to complete the grant before the Township would lose $2M in state grants.

KTA’s refusal to change course became even more evident in 2019 when the trail designers at that time (PennTrails) and the TSC considered whether we might bypass sections where the right-of-way could not be acquired by running portions of the Greenway within the very narrow right-of-way corridors that our Township already controlled. And so the 2019 Master Plan for the Greenway developed by designers at the time (PennTrails) included such sections likely to run alongside roadways.

KTA vigorously objected to these sections. With a new ally in Eden Ratliff (newly installed as Kennett Township manager), KTA blocked all further work on the master plan. The complete master plan has been sealed from public view, and Ratliff has refused to release plans in response to a Right to Know request. KTA then moved behind the scenes to quietly replace PennTrails with designers more amenable to their vision, a decision that was both costly and risky, with the deadlines for completing the grant now less than 18 months away.

With their newly installed (and much more expensive) design team, KTA continued to reject any suggestion that their expectations for the Greenway might be unrealistic. So we gathered our own data, reviewing every other shared-use path like the Greenway that was at least 5 miles long and within a 90-minute drive of Kennett. We discovered very few that seemed to have required any significant acquisitions or easements to secure the right-of-way. We also reviewed every shared-use path completed or in development in the portfolios of the new trail design team, and found none for which more than 10% of the right-of-way had yet to be acquired. Even after being presented with these data, neither KTA nor their supporters (Township Manager Ratliff and Kennett Township Supervisors Richard Leff and Whitney Hoffman) accepted our conclusions that KTA’s expectations for the Greenway were unrealistic.

The costs of KTA’s unrealistic expectations continue to mount on Chandler Mill Trail

The costs of KTA’s unrealistic expectations about the right-of-way were evident again in planning for the proposed trail alongside Chandler Mill Road. Between January and June 2021, the designers developed a proposal for the path alongside Chandler Mill Road requiring an 8-12 foot right-of-way to accommodate a 6-8’ path and a 2-4’ buffer. The problem? The right-of-way owned by Kennett Township was only about 7’ wide. At some point, the KTA, the trail designers, and Township Manager Ratliff realized that landowners would either have to cede land to the Township for the path or that the Township would have to effectively seize land by asserting an increased or “ultimate” right-of-way. The latter refers to a relatively recent provision in the Township code subsequently applied to newer developments that reserved the right to extend the designated right-of-way when it became necessary to widen roads. This assumption was unrealistic, however, because it was unclear if the ordinance could be applied retroactively to allow the Township to effectively “seize” land for public use.

This assumption was especially unrealistic because it was clear that one of the larger landowners in question was known to be dedicated to preserving their lands, and to have successfully fought off previous attempts to seize their land. Nonetheless, the proposal included sections of path requiring the seizure of this family’s land, constructing a large overlook on the family’s property that required cutting down dozens of the family’s trees to give the public the opportunity to admire other trees that the family has worked for years to diligently protect. KTA (with Ratliff’s support) allowed tens of thousands of dollars to be spent on the development of a 350-page proposal for a “final design”, even though KTA had failed to make the kinds of progress through negotiations needed to be confident that all of the landowners in question were likely to allow the path to proceed.

The potential costs of KTA’s unrealistic expectations have continued to mount. Based on the recommendations of KTA and Township Manager Ratliff, Kennett Township Supervisors voted in June 2021 to approve the designer’s $628,000 proposal to undertake the “final design”. The final design guides the permitting process and is the last step before seeking bids for construction to begin, at a projected additional cost of more than $4 million. The problem? The failure to secure the right-of-way for the proposed route of the path - even for a relatively small section - could derail the entire project, or require major changes to the “final” design, wasting potentially tens of thousands of dollars in design fees. Nonetheless, KTA continued with their public outreach, including an open house attended by the designers and complete with full-color posters depicting a path based on a right-of-way that had yet to be fully acquired. We do not know what other changes might be necessitated - and what other costs might be accrued - if the necessary right-of-way cannot be acquired.

If one accepts the argument presented here - namely, that KTAs unrealistic assumptions and expectations have resulted in very costly delays on the Chandler Mill Trail - then questions must be asked of other projects which KTA has advanced. For example, KTA has advanced a proposal for Red Clay Park that promises a lot but specifies very little with respect to overall timelines and costs. Without a clear plan or budget or timeline, the public - and especially our elected leaders - must question the feasibility of projects like this.

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