A federal judge ruled this week that the government must pay a couple in Burlington, Vermont, $234,000 plus fifteen years worth of interest for a strip of land less than 500 feet long that was taken to form part of the Burlington Bicycle Trail.

According to attorneys for the landowners, this is the first ever damage award against the United States for property converted from rails to trails. The portion of the trail at issue is less than one tenth of a mile long and crosses land bordering Lake Champlain that includes the home of Paul and Patricia Preseault. Besides being the first case of its kind, the attorneys said the size of the award for the limited scope of the taking makes this a landmark case.

The trail on this land has spawned courtroom battles between the federal government and the Preseaults for nearly two decades. In an earlier decision involving the Preseaults, the United States Supreme Court held that the federal "rails-to-trails" legislation does not violate the Constitution, but may require compensation to be paid to landowners under the Fifth Amendment. The U.S. Court of Appeals for the Federal Circuit later determined that Mr. and Mrs. Preseault owned land that was taken for the Burlington Trail and they must be paid.

Nels Ackerson, the Preseaults' lead attorney, explained that the decision will benefit other landowners across the nation who have similar claims. "This is a benchmark decision," he said. "The largest part of the damages occurred because the trail limited access and reduced the ability to enjoy, use, or develop the rest of the Preseaults' land. The same type of severance damage has been suffered
by many other landowners across the country. Farmers, ranchers, and commercial landowners, as well as homeowners now have a precedent to be compensated by the federal government in the same way if a trail has taken part of their property."

The Preseaults are represented by The Ackerson Group, a Washington law firm that represents hundreds of landowners in "takings" claims against the United States. The attorneys explained that Federal Judge Christine Miller's order requires the federal government to pay interest from 1986, which may more than double the court's award. In addition, the order permits Mr. and Mrs. Preseault to apply for recovery of their attorneys fees and expenses.

Cecilia Fex, another plaintiffs' attorney, added, "No financial award can ever fully compensate Paul and Patricia Preseault for the personal losses they have sustained through years of disputes and litigation. But their persistence has added to the body of Fifth Amendment takings law that will benefit others who have had their property taken by the government without compensation."

Under the court's order the easement for public use is limited to an eight-foot paved bicycle path plus two-foot shoulders. The federal government had originally sought between 80 and 150 feet, which Burlington claimed to have obtained under a lease from the railroad. At trial, the government asserted that at least 50 feet of unrestricted use was necessary to accommodate more bicycle, pedestrian
and roller blade traffic, in addition to maintenance. The City will have access to as much as fifty feet beside the trail, but only for the purpose of access for maintenance, according to the order.

Paul Preseault said, "My wife and I are pleased that this stage of the litigation has come to an end. The government took only a narrow easement, and we now have an order that it cannot enlarge the amount it took beyond what the City paved for a trail in 1986."

He continued, "No amount of money can make up for the invasion of our privacy by a paved and heavily-trafficked bicycle and roller-blade path next to our front door, and nothing can compensate for the years it took to get to this result. But I am glad the government will finally be paying with interest."