In re Doolittle Mountain Lots, Inc., 06-447.

• Docket Nº: No. 06-447.
• Citation: 938 A.2d 1230, 2007 VT 104
• Case Date: September 21, 2007
• Court: United States State Supreme Court of Vermont

938 A.2d 1230 2007 VT 104 In re Petition of DOOLITTLE MOUNTAIN LOTS, INC. for a Declaratory Puling, Pursuant to 3 V.S.A. § 808 and Public Service Board Rule 2.403, Regarding the Status of West Road (formerly known as Stebbins Road) in Vernon, Vermont, as Said Status Pertains to the Provision of Electric Service to Petitioner. No. 06-447. Supreme Court of Vermont. September 21, 2007.

[938 A.2d 1231]

Present: REIBER, C.J., DOOLEY, SKOGLUND, BURGESS, Associate Justices.

ENTRY ORDER

¶ 1. The sole issue on appeal is whether the Public Service Board correctly decided that it did not have jurisdiction to determine whether a town properly discontinued a highway. Petitioner contends that the Board erred in concluding that this determination was not within the scope of its powers. We affirm.

¶ 2. Petitioner, a Vermont corporation, sought to establish utility access to lands it owned in Vernon, Vermont. Petitioner contended that West Road, a nearby route, was a public highway that could be used for utility access. After petitioner inquired with the selectmen of the Town of Vernon as to the status of the road, the Town informed petitioner that the Town had, in 1904, discontinued the road's use as a highway. Petitioner then appeared before the Board, arguing that the decision of the Town to discontinue the road was void, because the Town had failed to abide by required statutory procedures. In July 2006, adjoining landowners moved to intervene and to dismiss petitioner's suit on the ground that the Board lacked jurisdiction over the subject matter of the case. In September 2006, the Board entered an order granting the neighbors' motion to dismiss. It held that its jurisdiction is limited to the express powers conferred upon it by the Legislature, as well as incidental powers necessary to the exercise of expressed powers. See Green Mountain Power Corp. v. Sprint Communications, 172 Vt. 416, 419, 779 A.2d 687, 690 (2001) (citation omitted). It found no statute that gave it the power to determine whether a road has been validly discontinued by a town. It found that it could regulate a utility's business with respect to its "use or occupation of a public highway" without itself determining whether a public highway was present, and therefore, the power to determine the validity of a road discontinuance

938 A.2d 1232

was not a necessary incidental power.

¶ 3. Petitioner argues that the Board has clear authority to determine both the existence and proper...