How do I allow my land to be used for a community trail?
Either one of two types of legally enforceable agreements can be used: an easement or a license for use.
A trail easement is an agreement between a landowner and a local agency or trail organization under which the landowner promises to preserve a linear corridor in its natural state and keep it substantially free of future development. An agreement should include language stipulating public access for recreational trail use, both to clarify the limits of use and to take advantage of the immunity to liability afforded by statute. An easement constitutes an “interest in land” that is binding on future owners. The trail corridor itself remains the property of the owner and can be sold or disposed of, but the trail easement is in perpetuity. Easement agreements can be modified to meet each landowner’s needs.
A license for use is also an agreement to preserve a linear corridor for public use of a recreation trail, but it does not create a permanent interest in the land and may be revoked by the landowner after expiration of an agreed number of years. A shorter-term use license gives a landowner an opportunity to experience sharing their land with other hikers before making a longer commitment, but may also limit the investment that a public agency or trail organization can make in developing the trail.
How wide is a trail corridor?
Trail corridors are usually 20 feet wide. The actual trail tread is approximately 2 feet wide; brush within 2 to 4 feet of the tread is pruned back. It is important to protect a wider corridor beyond the trail tread to create a buffer between hikers and other uses of the land, ensuring a safer and better-quality hiking experience.
Will the trail affect my privacy?
It is unlikely the trail will affect your privacy. The trail corridor is limited to the area agreed to in the easement or use license, and landowners are encouraged to participate in all aspects of trail planning. Hiking is a very directed, "through" activity, which means hikers tend to stay on a trail and not loiter or enter adjacent property. In addition, hikers appreciate landowners who provide trails and are usually respectful of private property and landowner privacy. To reinforce this tendency, adequate signage ensures that hikers are pointed in the right direction. Additional signs demarcating private areas (e.g., a spur trail leading to the landowner’s house) can be added. Hikers may use community trails only between sunrise and sundown. Persons straying from the trail corridor or using the trail outside permitted hours are potentially subject to civil and criminal liability as trespassers.
What are other considerations in selecting a location for a trail?
A few of the considerations in siting a trail include: avoid critical wildlife habitat; avoid wetlands and minimize impacts in buffer areas; minimize impacts to fragile or endangered plant communities; site trail on ground that drains well; and incorporate undulations in the tread to facilitate drainage and enhance the hiking experience.
How is the trail constructed?
Nearly all work is performed by volunteers using hand tools. In some cases, work may be performed by a local government. Chainsaws may be used to remove downed trees blocking the trail corridor. Live trees typically are not removed. Other vegetation is removed entirely from the trail tread and is pruned within two to four feet on either side of the trail. Timber, rocks, and other materials may be used to construct steps and divert runoff. More substantial structures (e.g., foot bridges) will be constructed only after consulting the landowner.
How much will the trail be used?
Community trails generally are not “destination trails” (like, for example, Ebey’s Landing), but are used most often by people in the neighborhood. The typical length of a hike is two to four miles round trip, so you can expect most hikers to live or be lodging within one to two miles of your property. At any given time, a party of hikers is unlikely to encounter other hikers.
Who deals with problems on the trail?
Members of the community volunteer to serve as trail stewards for designated trails near their homes. In most instances, the trail steward will identify and fix the problem. But inevitably a tree will fall across a trail or other problem will arise that is first noticed by a landowner or hiker. If you learn of a problem on the trail, you can help by notifying www.whidbeyislandtrails.org.
Am I liable to hikers injured on my land?
Washington’s Recreational Land Use Act provides immunity to an owner or person in possession or control of land against liability for unintentional injuries when that person holds the land open to members of the public for recreational purposes and does not charge a fee, unless the injuries sustained were caused by conditions: 1) “known” to the landowner; 2) “dangerous” (i.e., poses an unreasonable risk of harm); 3) “artificial” (i.e., created by human effort and not by natural causes); 4) “latent” (i.e., not readily apparent to the recreational user); and 5) not identified by a conspicuous warning sign. RCW 4.24.200 to .210.
Most homeowner’s insurance policies cover claims arising from “occurrences” on the parcel on which the home is located and on other parcels of vacant land owned by the insured. Commercial general liability and other policies provide similar coverage. “Occurrences” typically include injuries from “known dangerous artificial latent conditions” for which there is no immunity under the Recreational Land Use Act, but do not include injuries caused by intentional misconduct by the landowner. Insurance provides both an attorney to defend against claims arising from an “occurrence” and pays for any settlement or judgment for compensatory damages, up to policy limits.
Landowners who enter into easement or license for use agreements with the City of Langley will be indemnified by the City against claims arising from trail use. Under the indemnification clause, the City will provide a legal defense against covered claims and payment of an adverse judgment. Again, the indemnification would not extend to injuries caused by intentional misconduct by the landowner.
How will the trail affect the value of my land?
Multiple studies demonstrate that values of homes near trails typically increase between 5 and 10%. This increase in value is attributed to the demand for off-road trails. For example, a survey of homebuyers found that 79% want walking and biking paths, and of that group 85% prefer natural surface trails over pavement or decomposed granite surfaces; 90% prefer a narrow single-track path; and 75% prefer a mixture of rolling terrain and long hill ascents/descents. In other words, home purchasers pay a premium for homes in neighborhoods where they don’t need to get in their cars to go for a walk.
Do trails cause an increase in crime in an area?
Landowners along a proposed trail often are concerned that developing a trail will increase crimes such as muggings, assault, trespass, burglary and vandalism. However, studies from across the U.S. consistently report no increase in crimes against people or against property as the result of creating a trail. In some cases, crime rates actually decrease. For example, a study of the Burke-Gilman Trail in Seattle found that homes along the trail actually had lower rates of burglary and vandalism than the neighborhood average. In all cases, support by property owners for trails generally increases over time.
What’s been the experience of other landowners on Whidbey?
"When the Whidbey Camano Land Trust asked Charlie and me for an easement across our property in order to connect the Saratoga Woods and Putney Woods parks, we were initially negative about the proposal. We worried about trash, noise, trespassing, vandalism and theft. We only consented because there was a clause in the agreement that would let us cancel it if we had any problems that couldn't be resolved.
“The next ten years of owning our land passed with literally no problems related to the easement. People mostly passed through silently, but if we did occasionally hear them, they were clearly family and friends having a quiet friendly chat - not at all unpleasant to hear. We never had problems with trash, trespassing or theft. I don't know why we were surprised, really. People who enjoy a walk the woods are generally good people.
“We never regretted giving the easement and highly recommend that others do so. You have the pleasure of contributing to a walkable Whidbey and will likely have no negative consequences."
Sharon Emerson
These materials are for informational purposes only and not for the purpose of providing legal advice.