Demarest v. Town of Underhill, 12–403.

• Decision Date: 31 October 2013
• Docket Number: No. 12–403.,12–403.
• Citation: 87 A.3d 439,2013 VT 72
• Parties: David DEMAREST and Jeffrey Moulton v. TOWN OF UNDERHILL.
• Court: Vermont Supreme Court

87 A.3d 439

2013 VT 72

David DEMAREST and Jeffrey Moulton

v.TOWN OF UNDERHILL.

No. 12–403.

Supreme Court of Vermont.

Sept. 27, 2013.

Motion for Reargument Denied Oct. 31, 2013.

Christopher D. Roy of Downs Rachlin Martin PLLC, Burlington, for Plaintiffs–Appellants.

John W. O'Donnell of Bergeron, Paradis & Fitzpatrick LLP, Burlington, for Defendant–Appellee.

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

ROBINSON, J.

¶ 1. Petitioners appeal from the trial court's 2012 order upholding the Town of Underhill's decision to reclassify a segment of Town Highway 26 (TH 26) from a Class 3 and Class 4 highway to a legal trail. Petitioners argue that: the trial court should have appointed commissioners to make a report concerning the reclassification decision pursuant to 19 V.S.A. §§ 740–743 rather than reviewing the reclassification decision on the record pursuant to Vermont Rule of Civil Procedure 75; the court erred in declining to stay the appeal pending resolution of a related action concerning maintenance of the segment; and the evidence did not support the Town's reclassification ruling. We affirm.

¶ 2. Petitioners own real property adjacent to TH 26. In 2001 the Underhill Selectboard reclassified portions of TH 26 as a legal trail.¹ At the time, some of the roadway in question was designated as a Class 3 highway, and some was a Class 4 highway. To that end, the Selectboard provided the statutorily required public notice, conducted a site visit, conducted a public hearing, and voted to order the reclassification. The Town complied with all of the statutory procedures for reclassifying a road, except that it failed to formally record the reclassification order in the land records. In 2002, after public notice and an informational meeting, the Selectboard adopted a Trail Travel Ordinance for Crane Brook Trail—the name of the trail created by the purported 2001 reclassification. The ordinance contemplated that the trail would be used for recreational purposes. After the 2001 reclassification process, the Town stopped maintaining the purportedly reclassified segment of TH 26 as a road.

¶ 3. In the years following the purported 2001 reclassification, the condition of the segment of old TH 26 at issue here deteriorated significantly. In the absence of culvert maintenance and drainage management, beaver ponds by the road expanded causing wash-out and erosion in portions of the segment.

¶ 4. In February 2010, interested parties filed suit in superior court pursuant to 19 V.S.A. § 971 seeking an order requiring that the Town repair and maintain the disputed segment (the maintenance case). Although towns are not responsible for maintaining trails, In re Town Highway No. 20 of Town of Georgia, 2003 VT 76, ¶ 3 n. *, 175 Vt. 626, 834 A.2d 17 (mem.) (citing 19 V.S.A. § 302(a)(5)), the petitioners argued that the Town's 2001 reclassification attempt was ineffective, and that the Town thus had an obligation to maintain the road. 19 V.S.A. §§ 970–979.

¶ 5. The Town defended that action, but in March 2010 it also initiated a new reclassification proceeding in light of the challenge to the legal sufficiency of the 2001 reclassification. The Selectboard provided notice, conducted a site visit, solicited written comments on the reclassification question, and held a hearing to take testimony from interested persons. In a June 2010 “Order of Classification,” the Selectboard determined that:

TH 26 should now consist of three separate segments: The first segment shall extend, as before, from Pleasant Valley Road north to the Town Garage and shall be maintained as a Class 3 highway; the second shall be a legal trail extending from the Town Garage north to a point just south of the current driveway access to TH 26 from the property now owned by David Demarest, and; the third remaining segment shall extend from the northern end of the legal trail north to Irish Settlement Road, shall be known as Fuller Road, and shall be maintained as a Class 4 highway.

The order asserted that the reclassification action “was taken for the public good, convenience and necessity of the inhabitants of the Town of Underhill,” and the Selectboard identified sixteen reasons in support of its decision. This 2010 reclassification order is the subject of this appeal.

¶ 6. Petitioners appealed the Selectboard's reclassification order to the superior court, ostensibly pursuant to V.R.C.P. 74 and 19 V.S.A. § 740. Section 740(a) provides, in relevant part, that:

[w]hen 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....

Petitioners argued that the reclassification of TH 26 constituted an “alteration,” the statutory procedure for reviewing “alterations” of highways thus applied, and that therefore the court should appoint “three disinterested landowners as 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, and ... as to the amount of damages sustained by the appellant.” 19 V.S.A. § 741. Initially the parties apparently agreed that the reclassification was an “alteration” of the road such that 19 V.S.A. § 740 governed the appeal; the trial court expressed skepticism about the parties' shared approach, but reluctantly agreed to proceed on that basis initially.

¶ 7. Petitioners requested that the court stay proceedings in the reclassification case pending resolution of the maintenance case. They argued that the condition of the disputed segment had deteriorated significantly since the Town stopped maintaining it as a road after the 2001 reclassification effort, and the state of the segment and the cost of restoring it were substantial factors underlying the Selectboard's reclassification decision. In the maintenance case, the petitioners sought an order requiring the Town to restore the disputed segment to the condition of a road. Because the court's decision in the maintenance case could lead to restoration of road-level conditions on the segment, thus undercutting the rationale in support of the reclassification, petitioners argued that the court should decide the maintenance case first. The superior court concluded that the issues presented in the two cases were distinct and denied petitioners' motion for a stay.

¶ 8. While the appeal of the Town's 2010 reclassification decision was pending, in May 2011, the superior court ruled in the context of the maintenance case that the 2001 reclassification effort was, in fact, ineffective because the Town had failed to record the reclassification order in the town land records. The court then stayed further action on the maintenance case pending resolution of the reclassification appeal.²

¶ 9. Also while petitioners' appeal was pending, this Court issued Ketchum v. Town of Dorset, 2011 VT 49, 190 Vt. 507, 22 A.3d 500 (mem.). In Ketchum, we rejected the argument that reclassification constitutes an “alteration” under 19 V.S.A. § 740, and consequently, rejected the argument that an appeal of a reclassification decision requires the appointment of a panel of commissioners to review a town's reclassification decision. Id. ¶ 12. We held that “review by certiorari through [V.R.C.P.] 75 provided the proper procedure for appeal to the superior court.” Id. ¶ 14. In such cases, the superior court conducts an on-the-record review to determineif there was adequate evidence to support the town's decision. Id. ¶ 16; see also id. ¶ 14 (noting that in Rule 75 appeals “jurisdiction is usually confined to reviewing questions of law, and consideration of evidentiary questions is limited to determining whether there is any competent evidence to justify the adjudication” (quotation omitted and emphasis added)).

¶ 10. In light of our decision in Ketchum, the superior court ruled that the reclassification appeal was subject to an on-the-record review and the court thus did not refer the matter to a panel of commissioners. In a twelve-page decision that surveyed the available record evidence, the court concluded that the Town's 2010 reclassification order was supported by the evidence.

¶ 11. On appeal, petitioners argue that the superior court erred in treating the appeal as a Rule 75 appeal, rather than a de novo proceeding requiring the appointment of commissioners as set forth in 19 V.S.A. §§ 740–741. They further argue that the court erred in denying their motion for a stay so they could pursue the maintenance case first. Finally, they challenge the merits of the superior court's decision, arguing that the Town improperly created the conditions that supported the reclassification by failing to maintain the segment, and that the record evidence did not support the Selectboard's decision.

I.

¶ 12. Petitioners argue that the trial court should have treated this as a Rule 74 appeal, subject to the procedures set forth in 19 V.S.A. §§ 740–743 (setting forth procedure for reviewing challenges to taking of land, or laying out, altering, or resurveying of highway). We review this legal question de novo. See In re Town Highway No. 20, 2012 VT 17, ¶ 61, 191 Vt. 231, 45 A.3d 54. We recently held in Ketchum that the term “altering” in § 740 does not encompass reclassification, and rejected the argument that a town's decision to reclassify a Class 3 highway as Class 4 was subject to review pursuant to § 740. Petitioners try to distinguish this case by pointing to a footnote in Town Highway No. 20 in which we suggested that a town's reclassification of Class 4 roads is subject to a different statutory procedure than the reclassification of other roads. See 2012 VT 17, ¶ 61 n. 9, ...