Rhodes v. Unnamed Town Highway of Ga. (In re Town Highway No. 20), Nos. 10–100

Docket NºNos. 10–100
Citation2012 VT 17, 45 A.3d 54
Case DateMarch 23, 2012
CourtUnited States State Supreme Court of Vermont

45 A.3d 54
2012 VT 17

In re TOWN HIGHWAY NO. 20, Town of Georgia (Petition of John Rhodes)
John Rhodes
v.
Town of Georgia
In re Unnamed Town Highway of Town of Georgia.

Nos. 10–100, 10–338.

Supreme Court of Vermont.

March 23, 2012.


[45 A.3d 57]


Joseph F. Cahill, Jr. and Michael S. Gawne of Brown, Cahill, Gawne & Miller, P.C., St. Albans, for Petitioner–Appellee and Plaintiff–Appellee/Cross–Appellant.

Joseph A. Farnham and Kevin J. Coyle of McNeil, Leddy & Sheahan, Burlington, for Respondent–Appellant and Defendant–Appellant/Cross–Appellee.


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

SKOGLUND, J.

¶ 1. In 1995, John Rhodes, a resident of the Town of Georgia, petitioned his local governing body, the selectboard, to clarify several issues surrounding two roads that bordered his land. While this case began as a suit over the existence and use of two ancient roads, it grew over time into a test of constitutional guarantees and a saga about abuse of power. After almost fifteen years of litigation, including two side trips to federal court, the trial court entered judgment against the Town of Georgia. The court found that Rhodes's request to access his land over town roads had been repeatedly and maliciously frustrated by the Town selectboard in an ongoing attempt to protect the value of a neighbor's

[45 A.3d 58]

property, a violation of Chapter I, Article 7 of the Vermont Constitution, the Common Benefits Clause. The court concluded that Article 7 was self-executing and awarded monetary damages for the constitutional violation. In this consolidated appeal, the Town of Georgia seeks to overturn the trial court decision. As explained below, we affirm the judgment of liability but reverse the damage award and remand for further proceedings.

¶ 2. This appeal stems from two separate actions, both involving the same three parties and both—as noted—resulting from a dispute over the existence and use of two ancient roads. Because they are inextricably linked, we review both appeals as one. The underlying facts are largely uncontested. The procedural history is quite lengthy but essential to a full understanding of the case.

¶ 3. The two country roads at the heart of this conflict traverse the woods and fields of Georgia, Vermont. The first road, Town Highway # 20 (TH # 20), was officially laid out by the Georgia selectboard in 1813. One section runs for 600 feet along the southeastern border of Rhodes's 320–acre farm and divides his farm from his neighbors, the Bechards (neighbors). The second road (Unnamed Road) runs along Rhodes's southwestern border for approximately 2500 feet and intersects with TH # 20 and another road in the vicinity of neighbors' house.

¶ 4. In 1971, the selectboard voted to discontinue a portion of TH # 20 that bordered Rhodes's farm. At around the same time, a culvert was installed under the Unnamed Road near its intersection with TH # 20. The culvert made it possible for Rhodes and neighbors to access land they individually owned via the Unnamed Road—it was otherwise impassible to vehicle traffic. It also allowed the Town to access a gravel pit owned by neighbors. In 1994, current neighbors' father owned neighbors' property. Father asked the Town to remove the culvert. Without providing justification, the selectboard, whose chair at the time was father's son (current neighbors' brother), ordered the culvert removed, an act that prevented Rhodes from driving any vehicles along the Unnamed Road or accessing his adjoining land.

¶ 5. In 1995, Rhodes sent a formal application to the selectboard requesting that it: (1) determine the location of TH # 20 where it bordered his farm; (2) reconsider its 1971 decision to discontinue that portion of TH # 20; (3) give him permission to pay for improvements to TH # 20 to make it passable for vehicles year-round; and (4) order neighbors to remove the fenced gate they had erected in the middle of TH # 20 and the farm equipment and other personal property they stored in the TH # 20 right-of-way. In addition to seeking access to his lands, Rhodes's request was motivated in part by an interest in subdividing the upper portion of his property, which would require improved vehicle access along TH # 20 and the Unnamed Road, though his plans in that regard remain unclear to this day. Neighbors, apparently also planning a subdivision of their farm, opposed Rhodes, claiming his farm did not abut TH # 20. The selectboard denied all of Rhodes's requests in April 1997 and granted neighbors permission to store property in the TH # 20 right-of-way because it “does not present a problem.” Rhodes appealed this decision to the superior court.

¶ 6. In his petition to the superior court in 1997, Rhodes claimed that the selectboard had erred in determining the limits of TH # 20 and improperly concluded TH # 20 had been discontinued and reclassified in 1971. He also argued that the selectboard's decision had “denied [him]

[45 A.3d 59]

access as a matter of law to his property” and “improperly ... grant[ed] an adjacent property owner, [neighbors], the right to continue to use a portion of the right of way to store personal property ... in a manner which obstructs and interferes with use of the Town Highway # 20 by [Rhodes] and refus[ed] to require [neighbors] to remove the fence and barbed wire gate [they] erected.” Neighbors intervened and cross-claimed, requesting, among other things, that the court make a declaratory judgment regarding their rights to a prescriptive easement over a “pent” road on Rhodes's property running roughly parallel to the Unnamed Road.

¶ 7. The case was heard over five days in January and July 2001. Rhodes presented his claim of discrimination. He alleged that the selectboard had acted in an “arbitrary and capricious manner” in denying his right to improve TH # 20 and refusing to require neighbors to remove their personal property from the right-of-way, and that the selectboard had treated him differently from other property owners in the Town similarly situated on trails and class 4 roads. He agreed that the Town had the right to regulate his use of TH # 20, but argued that “such regulation should not be inconsistent or place him in a different position than any other property owner or member of the public,” and that the selectboard's decision to deny him access and grant neighbors the right to continue to use TH # 20 for personal storage was “an uneven application of governmental power [that was] fundamentally unfair.”

¶ 8. The trial court (Joseph, J.) ruled in Rhodes's favor. In re Town Highway #20, Town of Georgia, No. S173–97Fc (Vt.Super. Ct. June 27, 2002) [hereinafter Town Highway #20 ]. The court found that the selectboard's 1971 decision discontinuing the road was flawed and thus had no legal force and dismissed neighbors' cross-claim of adverse possession and prescriptive easement. It also determined that TH # 20 abutted Rhodes's farm. The court further found that the Town “has a policy of permitting landowners to improve class 4 Town Highways at their own expense so that they can gain vehicular access to their property” and that “[i]n the 1990's ‘less than a dozen’ property owners made requests to the Town for permission to improve class 4 highways at their own expense.... [Rhodes] is the only landowner whose request to make such improvements was denied.” The court noted that the need to improve TH # 20 was a safety issue. It additionally found that neighbors had placed an old hay baler in the TH # 20 right-of-way to prevent Rhodes from replacing the large culvert that the Town removed in 1994 and had built fencing in the right-of-way. The court specifically found that the Town had removed the culvert in order to hinder Rhodes's access to the upper section of his property and to prevent him from subdividing and developing it.

¶ 9. Beyond these findings and conclusions, the court ruled:

The Town of Georgia Selectboard acted in violation of the United States and Vermont Constitutions when it:

a) denied [Rhodes's] request to make improvements in the TH # 20 right-of-way at his own expense and

b) when it refused to require [neighbors] to remove their personal property from the TH # 20 right-of-way.

In support of this ruling, the court noted that in making its decision the selectboard was specifically concerned with how further development of TH # 20 would affect neighbors' “privacy and enjoyment” of their property. The court found that the selectboard knew that neighbors wanted to prevent the development of Rhodes's property and that the selectboard members

[45 A.3d 60]

were “sympathetic to [neighbors'] concern.” The court further concluded that the Town had denied permission to Rhodes “because it does not want him to develop his [upper] parcel in a way that would bring in a large number of new homes and cause an increase in traffic near [neighbors'] residence.” This bias, the court concluded, constituted “unconstitutional discrimination” because “[t]he Town simply cannot deny Mr. Rhodes the right to improve and use a public highway if they give that right to other property owners in similar circumstances.”


¶ 10. Finally, the court concluded that through this behavior the selectboard had violated Article 7 of the Vermont Constitution by showing “favoritism” to a “single person, family, or set of persons” in the community. (Quoting Vt. Const. ch. I, art. 7.) 1 The court then directed the selectboard to allow Rhodes to improve TH # 20 “under the same terms and conditions given to other owners of property abutting TH # 20” and “to order that [neighbors] remove all of their personal property from the TH # 20 right-of-way.”

¶ 11. The Town and neighbors appealed, without challenging the trial court's relevant factual findings. This Court upheld the trial court's rulings as to the location and status of TH # 20 and the denial of neighbors' claimed easement. In re Town Highway No. 20 of Town of Georgia, 2003 VT 76, 175 Vt. 626, 834 A.2d...

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24 practice notes
  • Zullo v. State, No. 2017-284
    • United States
    • Vermont United States State Supreme Court of Vermont
    • January 4, 2019
    ...Constitution, we reiterated the preeminence of the Vermont Constitution over legislative and judge-made law. See In re Town Highway No. 20, 2012 VT 17, ¶ 26, 191 Vt. 231, 45 A.3d 54 (stating that Vermont Constitution, which "is preeminent in our governmental scheme" as "the f......
  • Zullo v. State, No. 2017-284
    • United States
    • Vermont United States State Supreme Court of Vermont
    • January 4, 2019
    ...Constitution, we reiterated the preeminence of the Vermont Constitution over legislative and judge-made law. See In re Town Highway No. 20, 2012 VT 17, ¶ 26, 191 Vt. 231, 45 A.3d 54 (stating that Vermont Constitution, which "is preeminent in our governmental scheme" as "the f......
  • Godfrey v. State, No. 15-0695
    • United States
    • United States State Supreme Court of Iowa
    • June 30, 2017
    ...Mich. 540, 410 N.W.2d 749, 798 (1987) (considering the merits of a direct equal protection claim); In re Town Highway No. 20 , 191 Vt. 231, 45 A.3d 54, 67 (2012) (holding article of state constitution prohibiting discriminatory treatment to be self-executing).We, of course, have not hesitat......
  • Simuro ex rel. K.S. v. Shedd, Case No. 2:13-cv-30
    • United States
    • United States District Courts. 2nd Circuit. District of Vermont
    • March 31, 2016
    ...does not shield the Town of Windsor from liability for his state constitutional claims. He cites In re Town Highway No. 20 , 191 Vt. 231, 45 A.3d 54 (2012) in support of his position. In In re Town Highway No. 20 , the Vermont Supreme Court determined that the Common Benefits Clause in Arti......
  • Request a trial to view additional results
24 cases
  • Zullo v. State, No. 2017-284
    • United States
    • Vermont United States State Supreme Court of Vermont
    • January 4, 2019
    ...Constitution, we reiterated the preeminence of the Vermont Constitution over legislative and judge-made law. See In re Town Highway No. 20, 2012 VT 17, ¶ 26, 191 Vt. 231, 45 A.3d 54 (stating that Vermont Constitution, which "is preeminent in our governmental scheme" as "the f......
  • Zullo v. State, No. 2017-284
    • United States
    • Vermont United States State Supreme Court of Vermont
    • January 4, 2019
    ...Constitution, we reiterated the preeminence of the Vermont Constitution over legislative and judge-made law. See In re Town Highway No. 20, 2012 VT 17, ¶ 26, 191 Vt. 231, 45 A.3d 54 (stating that Vermont Constitution, which "is preeminent in our governmental scheme" as "the f......
  • Godfrey v. State, No. 15-0695
    • United States
    • United States State Supreme Court of Iowa
    • June 30, 2017
    ...Mich. 540, 410 N.W.2d 749, 798 (1987) (considering the merits of a direct equal protection claim); In re Town Highway No. 20 , 191 Vt. 231, 45 A.3d 54, 67 (2012) (holding article of state constitution prohibiting discriminatory treatment to be self-executing).We, of course, have not hesitat......
  • Simuro ex rel. K.S. v. Shedd, Case No. 2:13-cv-30
    • United States
    • United States District Courts. 2nd Circuit. District of Vermont
    • March 31, 2016
    ...does not shield the Town of Windsor from liability for his state constitutional claims. He cites In re Town Highway No. 20 , 191 Vt. 231, 45 A.3d 54 (2012) in support of his position. In In re Town Highway No. 20 , the Vermont Supreme Court determined that the Common Benefits Clause in Arti......
  • Request a trial to view additional results

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