Ketchum v. Town of Dorset.

• Decision Date: 29 April 2011
• Docket Number: No. 10–165.,10–165.
• Citation: 22 A.3d 500,2011 VT 49
• Parties: Lisa KETCHUM and Thomas Ketchum, Individually and as Trustees for Saddlebrook Farm Trust and North Farm Trust and Pauline Ketchumv.TOWN OF DORSET.
• Court: Vermont Supreme Court

22 A.3d 500

2011 VT 49

Lisa KETCHUM and Thomas Ketchum, Individually and as Trustees for Saddlebrook Farm Trust and North Farm Trust and Pauline Ketchum

v.TOWN OF DORSET.

No. 10–165.

Supreme Court of Vermont.

April 29, 2011.

Present: REIBER, C.J., DOOLEY, JOHNSON, SKOGLUND and BURGESS, JJ.

ENTRY ORDER

¶ 1. Plaintiffs appeal the Town of Dorset's decision to reclassify a town road from a class 3 to a class 4 highway. Plaintiffs argue that the court erred in reviewing the selectboard's reclassification using a deferential standard instead of a de novo procedure involving appointment of a panel of commissioners. In the alternative, plaintiffs contend that, even under a deferential standard, the court's decision is erroneous because the findings are not supported by the evidence and they were denied an opportunity to supplement the record on appeal. We affirm.

¶ 2. Plaintiffs own property that is serviced by a town highway known as Upper Kirby Hollow Road. There is one residence on the road, and the remaining properties are undeveloped. Some of the property is under a conservation easement and open to the public for recreational activities. In October 2008, the Town provided notice that it intended to consider altering the classification of certain town highways, including a 0.55 mile section of Kirby Hollow Road. The selectboard made a site visit to the property. The Town also held a public meeting and heard from interested parties. Plaintiffs attended and spoke against reclassification. Other members of the public also opposed reclassification and questioned whether it would have an impact on the public's ability to use the conserved property. The Town road foreman supported reclassification and testified that the road is dangerous to maintain and snow plow because it is narrow and steep. In December 2008, the Town issued a written decision, finding, among other things, that: the road's width is too narrow to allow two vehicles to safely pass one another or for access for emergency vehicles; Town snow removal vehicles have slid off the road causing danger to the vehicles and impairing snow removal of other roads; and the cost to improve the road is prohibitive. The Town also found that the road services only one seasonal residence with limited winter usage. The Town concluded that continuing summer maintenance and winter plowing did not serve the public good of the Town and reclassified the road.

¶ 3. Plaintiffs appealed the decision, citing Rule of Civil Procedure 74 and 19 V.S.A. § 740. Rule 74 allows a party to appeal from a decision of a “state board, commission, department or officer” when “any party is entitled by statute to seek review.” Section 740 states:

When a person owning or interested in lands through which a highway is laid out, altered, or resurveyed by selectboard members, objects to the necessity of taking the land, or is dissatisfied with the laying out, altering or resurveying of the highway, or with the compensation for damages, he or she may appeal, in accordance with Rule 74 of the Vermont Rules of Civil Procedure, to the superior court in the same county, or in either county when the highway or bridge is in two counties.

19 V.S.A. § 740(a) (Cum.Supp.2010). In their notice of appeal, plaintiffs asked the superior court to stay the selectboard's decision pending appeal and to appoint three disinterested landowners to review the reclassification decision pursuant to 19 V.S.A. § 741.

¶ 4. The court held a hearing on the motion to stay. At the hearing, the court questioned the basis for its jurisdiction under Rule 74. Plaintiffs argued that § 740 applied to allow review under Rule 74, but, in the alternative, requested to amend the notice of appeal and plead relief under Rule 75 instead. Following an off-the-record conference, the court concluded that it would take evidence on whether to grant a stay, assuming the appeal was made pursuant to Rule 75. Cf. 19 V.S.A. § 743 (providing for automatic stay upon petition of interested person of decision to lay out, alter or resurvey road). Plaintiffs presented testimony from four witnesses, including one of the plaintiffs, who testified that one residence is used in the summer and for a couple of weekends a month in the winter. He also expressed his opinion that the road was safe for passage and there had not been a problem with clearing the snow. He noted that lack of plowing would have an impact on plaintiffs' ability to reach their properties, and have utility trucks deliver propane. A neighboring farmer who pastures cows on plaintiffs' property explained that the lack of maintenance would make it difficult for him to reach his cows. He plows plaintiffs' driveway past the road and opined that the Town's difficulty in plowing was due to a new, larger truck. A forester testified that lack of maintenance would have a negative impact on recreation and logging activity on the conserved property. Finally, the Town's road foreman testified concerning the practical and safety problems with plowing the road given its narrow width and steep incline. He stated that the section could be plowed by a four-wheel drive pickup truck for $50.

¶ 5. The court, Judge Suntag presiding, denied the motion for stay. The court concluded that there was no statutory authority providing for review of the reclassification and therefore the only jurisdiction for the appeal was pursuant to Rule 75 in the nature of certiorari. Applying the stay factors, the court concluded that: plaintiffs' appeal had little likelihood of success under this narrow standard; no irreparable injury would result from denial of a stay; there could be injury to other parties without a stay; and the interest of the public was not served by issuing a stay. See Gilbert v. Gilbert, 163 Vt. 549, 560, 664 A.2d 239, 245 (1995) (setting forth criteria for stay). The court also denied plaintiffs' subsequent motion to reconsider.

¶ 6. Plaintiffs then moved for appointment of commissioners to review the selectboard's decision. Plaintiffs acknowledged that no statute explicitly granted de novo review by commissioners of a decision to reclassify a road from class 3 to class 4, but that “the case law and statutory history makes clear that this is the appropriate procedure.” The court, Judge Wesley presiding, denied the motion, concluding that without more specific direction in the statute, its review was in the nature of certiorari pursuant to Rule 75. Hunt v. Vill. of Bristol, 159 Vt. 439, 439–40, 620 A.2d 1266, 1266 (1992) (explaining that review of governmental action is governed by Rule 75 when legislation is silent on method for review). Under this standard, the court explained that its task was to determine “whether there is any competent evidence to justify the adjudication.” Id. at 441, 620 A.2d at 1267 (quotation omitted). Thus, the court held that it would render a decision limited solely on “the record made before the selectboard ... [without] additional evidence.” Following further briefing, the court issued a final decision in the Town's favor. The court concluded: “The record as evidenced by the minutes of the October 21 meeting is more than adequate to uphold the Board's determination against any charge of the arbitrary exercise of authority.”

¶ 7. On appeal, plaintiffs first argue that the superior court erred in holding that the selectboard's decision was subject to deferential review under Rule 75 when other decisions regarding the laying out, altering or resurveying of town highways are subject to de novo review by court-appointed commissioners.

¶ 8. The necessary procedures for reclassifying a road are defined by statute, and therefore we begin with a review of the pertinent statutory sections. See Sagar v. Warren Selectboard, 170 Vt. 167, 171, 744 A.2d 422, 426 (1999) (explaining that a town's duties “with respect to roads are entirely statutory”). The process to reclassify a town highway may be commenced by petition or at the selectboard's own initiation. 19 V.S.A. § 708(a). After hearing from interested parties and examining the premises, the selectboard can then reclassify upon a finding that it is for the “public good, necessity and convenience of the inhabitants of the municipality.” Id. § 710. These sections also apply to laying out or altering of a road. The statute further explains that if an interested party “is dissatisfied with the laying out, altering or resurveying of the highway, or with the compensation for damages, he or she may appeal, in accordance with Rule 74 of the Vermont Rules of Civil Procedure, to the superior court,” id. § 740(a), and the court shall appoint three commissioners “to inquire into the convenience and necessity of the proposed highway, and the manner in which it has been laid out, altered or resurveyed,” id. § 741.

¶ 9. On two bases, plaintiffs seek to apply the appeal and review procedures set forth in §§ 740 and 741 to their case even though reclassification is not enumerated in either section. First, plaintiffs contend that reclassification is a method of altering a road and therefore included in the statute. Second, according to plaintiffs, “[t]here is no discernable rationale” for excluding reclassification from the same processes as for laying out, altering or resurveying.^* Therefore, plaintiffs urge us to construe the statute to apply the § 740 and § 741 procedures to a selectboard's reclassification decision to avoid what they deem an absurd or irrational consequence of applying the statute as written. See Braun v. Bd. of Dental Exm'rs, 167 Vt. 110, 117, 702 A.2d 124, 128 (1997).

¶ 10. When interpreting a statute, “our obligation is to effectuate the intent of the Legislature” by first looking at the language of the statute. Brennan v. Town of Colchester, 169 Vt. 175, 177, 730 A.2d 601, 603 (1999). We “presume the Legislature intended the plain, ordinary meaning of the language” and will not read language into a statute unl...