Agency of Transp. v. Wall Management

• Decision Date: 03 August 1984
• Docket Number: No. 82-496,82-496
• Citation: 144 Vt. 640,481 A.2d 1270
• Parties: AGENCY OF TRANSPORTATION v. WALL MANAGEMENT, et al.
• Court: Vermont Supreme Court

Page 1270

481 A.2d 1270

144 Vt. 640

AGENCY OF TRANSPORTATION v. WALL MANAGEMENT, et al.

No. 82-496.

Supreme Court of Vermont.

Aug. 3, 1984.

John J. Easton, Jr., Atty. Gen., and Robert C. Schwartz, Asst. Atty. Gen., Montpelier, for plaintiff-appellee.

John E. McCamley of Abatiell & Abatiell, Rutland, for defendants-appellants Dorr.

Before BILLINGS, C.J., and HILL, UNDERWOOD, PECK and GIBSON, JJ.

BILLINGS, Chief Justice.

Defendants appeal from a judgment of the Bennington Superior Court holding that "the necessity of the State requires the taking of land and rights of others...." in order to reconstruct and widen that portion of routes 11 and 30 which combine to run through the town of Manchester, Vermont. The proposed project calls for reconstructing the road subbase and widening .06 of a mile of routes 11 and 30 to provide for a twelve foot eastbound lane, a twelve foot westbound lane, and a twelve foot center lane for left hand turns in both directions. Sidewalks also will be constructed on both sides of the widened roadway. Defendants, whose property will be taken under the proposed reconstruction project, claim that the finding of necessity is not supported by the evidence. Specifically, they argue that due consideration was not given to (1) alternative routes, (2) effect upon the environment, (3) economic impact and (4) public safety.

Under 19 V.S.A. § 221(1), necessity is defined as:

a reasonable need which considers the greatest public good and the least inconvenience and expense to the condemning party and to the property owner.

This Court has previously stated that the term "necessity," as used in the statute, does not mean an absolute or imperative necessity "but only that the taking be reasonably necessary to the accomplishment of the end in view under the particular circumstances." Cersosimo v. Town of Townshend, 139 Vt. 594, 597, 431 A.2d 496, 498 (1981); Latchis v. State Highway Board, 120 Vt. 120, 123, 134 A.2d 191, 194 (1957). The question is a narrow one of fact concerning the necessity of taking the particular land in question, Latchis v. State Highway Board, supra, 120 Vt. at 124, 134 A.2d at 194, and is to be determined exclusively by the trial court. Pillsbury v. Town of Wheelock, 130 Vt. 242, 244, 290 A.2d 42, 44 (1972). If the findings of the court on this issue are supported by any competent evidence, State Highway Board v. Coburn, 125 Vt. 513, 515, 219 A.2d 582, 584 (1966), and the excepting party cannot demonstrate an abuse of the court's discretion, the findings must stand. Cersosimo v. Town of Townshend, supra, 139 Vt. at 597, 431 A.2d at 498.

The statute gives the state highway board broad discretion, "in determining what land it deems necessary for the particular location and route to be followed ....", Latchis v. State Highway Board, supra, 120 Vt. at 125, 134 A.2d at 195, and we will not interfere with that determination as long as it is made in good faith and is not capricious. Id.

Turning to the issues raised on appeal, the defendants first argue that no consideration was given to the "adequacy of other property and locations" as required by 19 V.S.A. § 221. A reading of the transcript reveals, however, that the proposed project was, in fact, an alternative design to one originally proposed. The town manager for the town of Manchester testified that the project as originally planned would have involved the construction of a four-lane highway. This design was "dropped back to a three [lane proposal] with a center left-turn lane, therefore" limiting the amount of property that would be taken.

Additionally, the highway project under consideration does not involve new highway construction where consideration of alternative routes is both practical and necessary. Rather, the project contemplates structural as well as traffic and pedestrian flow improvements to an existing roadbed. Testimony of the Agency of Transportation's construction engineer and research and economics engineer established that the section of road slated for repair was structurally unsound and represented a safety hazard. Under the state's highway sufficiency rating system, this section of roadway is rated in the lowest sufficiency category due primarily to its structural deficiency. Further, vehicular traffic along this section of road is expected to increase from a 1981 count of 7,600 vehicles per day to approximately 11,000 per day by the year 2004. In addition, the State's engineer testified that even if the project were redesigned to omit one or both proposed new sidewalks, the amount of property taken would remain substantially the same. This is because the three-lane road still would require the "same width of reconstruction" due to the need for adequate shoulders, snow storage space and utility accommodation. Finally, the project calls for a three-lane design, with a center turning-only lane in order to reduce the specific traffic problems created by the current two-lane road. Those problems include the backing up and congestion of through traffic behind vehicles turning off the two-lane road and the sudden stopping of turning vehicles with resulting "fender-bender" accidents. On these facts we find that the "adequacy of other property and locations" criterion of 19 V.S.A. § 221 has been satisfied.

Defendants next argue that the court's findings concerning environmental impact were "speculative" and constitute error. The defendants' specific complaint is that approval from the Department of Water Resources for storm drains, to be placed in the road for surface water run-off into the Battenkill...