Sagar v. Warren Selectboard

• Citation: 744 A.2d 422
• Decision Date: 24 November 1999
• Docket Number: No. 98-190.,98-190.
• Court: United States State Supreme Court of Vermont
• Parties: Gary SAGAR v. WARREN SELECTBOARD.

744 A.2d 422

Gary SAGAR v. WARREN SELECTBOARD.

No. 98-190.

Supreme Court of Vermont.

November 24, 1999.

Peter S. Sidel of Sidel & Pikulski, Waitsfield, for Plaintiff-Appellant.

Glenn C. Howland of McKee, Giuliani & Cleveland, P.C., Montpelier, for Defendant-Appellee. Present: AMESTOY, C.J., and DOOLEY, MORSE, JOHNSON and SKOGLUND, JJ.

DOOLEY, J.

Plaintiff Gary Sagar brought suit in the Washington Superior Court, seeking an order directing the selectboard in the Town of Warren to plow a class 2 town highway to a point that would give him year-round access to property he owns on the road. The highway in question is the Lincoln Gap Road, a mountainous roadway that connects Warren with the Town of Lincoln and points west. The superior court entered judgment in favor of the Town, concluding that any decision on whether to plow the road is within the discretionary authority vested by statute in the selectboard. We sustain plaintiffs appeal, vacate the judgment of the superior court and remand for further proceedings.

The case never proceeded beyond the pleadings. The complaint contains the following allegations: Plaintiff is a resident of Massachusetts who owns a parcel of land on the Lincoln Gap Road in Warren. In 1985, the Warren selectboard approved a road cut that would allow him to gain access to the property from the road. At the time approval was granted, the Town was regularly plowing the road to a point beyond the road cut to reach a safe turnaround point for the plow. Plaintiff received assurances that the Town would continue to plow the road to a point beyond the road cut. Some years later, desiring to construct two single-family homes on his property, plaintiff sought permission for a second road cut several hundred feet below the one previously approved. In July 1996, the selectboard tabled plaintiff's request for the second road cut and decided to discontinue plowing the road to the existing one. These decisions resulted in this litigation.

The Lincoln Gap Road is a class 2 highway under the classification scheme for town highways set forth in 19 V.S.A. § 302. Under this classification system, class 2 town highways "are those town highways selected as the most important highways in each town." 19 V.S.A. § 302(a)(2). Class 2 highways are "selected with the purposes of securing trunk lines of improved highways from town to town and to places which by their nature have more than normal amount of traffic." Id.

The Town argued to the superior court that the selectboard has discretion in deciding how to maintain roads, and it had exercised its discretion to keep most of the Lincoln Gap Road closed and unplowed during the winter months. It filed a motion to dismiss, or alternatively a motion for summary judgment, which put before the court the minutes of the various meetings of the selectboard that dealt with the plaintiffs road cut application. These minutes disclosed that the Town has plowed only part of the Lincoln Gap Road, leaving most of it impassable during the winter months. In response to plaintiffs application, the selectboard decided that the point to which the road had been plowed created safety concerns for the plow operators and that henceforth the Town would plow only to a point short of the plaintiff's land.¹ The selectboard denied the road cut application because there would be no winter access through the proposed road cut.

The Town relies primarily on the selectboard's "general supervision and control" over town highways, 19 V.S.A. § 303, and the statutory expression of their responsibility:

[S]ee that town highways and bridges are properly laid out, constructed, maintained, altered, widened, vacated, discontinued and operated, when the safety of the public requires, in accordance with the provisions of this title.

Id. § 304(a)(1). It argues that the selectboard's responsibilities under any of the statutory sections on highways are subject to the proviso "when the safety of the public requires," and the selectboard properly determined that the safety of the public, including those who would plow the road, requires that the road remain closed in the winter. Further, it argues that this decision lies within the discretion of the selectboard and cannot be reviewed by the court.

The plaintiff responds that a class 2 town road must at least meet the standards for a class 3 town road, which include that it be "negotiable under normal conditions all seasons of the year by a standard manufactured pleasure car," and that it have "sufficient width capable to provide winter maintenance." 19 V.S.A. § 302(a)(3)(B). The plaintiff reiterates that the Town has the responsibility to keep highways "in good and sufficient repair during all seasons of the year." Id. § 310(a); see also id. § 971 (if highway is "out of repair or unsafe for travel," any three citizens or taxpayers in the state may give written notice to the selectboard, and, if the town fails to respond, complain to the county road commissioner or the superior court); id. § 991 (when a town "liable to keep in repair a highway ... fails to do so," it may be indicted and fined by the court). Plaintiff argues that under these sections, the Town has no discretion to refuse to plow the road as long as it remains a class 2 road.

The superior court generally accepted the Town's argument, concluding that none of the statutes clearly require that the selectboard plow any road, and "the statute strongly suggests it is discretionary, and common experience supports the conclusion that local authorities must have substantial discretion in the expenditure of not inconsiderable funds." It awarded judgment for the Town because "snowplowing is not mandated."

Before we reach the merits, we clarify the procedural state of the case. The superior court decided the case on the Town's motion for judgment on the pleadings or, in the alternative, for summary judgment. Although the court did not specify whether it was deciding the case under V.R.C.P. 12(c) (judgment on the pleadings) or V.R.C.P. 56 (summary judgment), we assume the court invoked the former because the Town submitted with its motion neither any supporting materials nor the statement of materials facts that are required under V.R.C.P. 56. See Reynolds v. Sullivan, 136 Vt. 1, 3, 383 A.2d 609, 611 (1978) (summary judgment motion relying solely on pleadings "is functionally the same as" a motion for judgment on pleadings under Rule 12(c)). In reviewing a V.R.C.P. 12 motion, we must assume as true all well-pleaded factual allegations in the nonmovant's pleadings and all reasonable inferences that can be drawn from them. See Hopper v. Kelz, 166 Vt. 616, 616, 694 A.2d 415, 415 (1997) (mem.). "[A]ny contravening assertions in the movant's pleadings are taken to be false." Id.

We also emphasize that this is a petition for mandamus. Generally, the purpose of mandamus is to require a public officer to perform a simple and definite ministerial duty imposed by law. See Vermont State Employees' Ass'n, Inc. v. Vermont Criminal Justice Training Council, 167 Vt. 191, 195, 704 A.2d 769, 771 (1997). Thus, mandamus ordinarily is not available to compel discretionary decisions. See id. There is, however, an exception: "Where there appears, in some form, an arbitrary abuse of the power vested by law in an administrative officer ... which amounts to a virtual refusal to act or to perform a duty imposed by law, mandamus may be resorted to in the absence of other adequate legal remedy."²Richardson v. City of Rutland, 164 Vt. 422, 424, 671 A.2d 1245, 1247 (1995) (quoting Couture v. Selectmen of Berkshire, 121 Vt. 359, 361, 159 A.2d 78, 80 (1960)) (internal quotation marks omitted). We have held that mandamus may be available to enforce a town's duty to keep a highway in good and sufficient repair at all seasons of the year. See Ellis v. Cannon, 113 Vt. 511, 516, 37 A.2d 377, 380 (1944). Because of the nature of the remedy, however, it is not enough for the plaintiff to show that the selectboard abused its discretion. He must show the board had no discretion or that its failure to act was an "arbitrary abuse of power."

The duties of the Town with respect to roads are entirely statutory. If the plaintiff is entitled to relief, we must find that entitlement in the statutory scheme. See id. at 513-14, 37 A.2d at 379.

In construing a statute, our objective is to implement the intent of the Legislature. See In re P.S., 167 Vt. 63, 70, 702 A.2d 98, 102 (1997). We look to the "whole of the statute and every part of it, its subject matter, the effect and consequences, and the reason and spirit of the law." Id. Of course if the statute is unambiguous and the words have a plain meaning, we apply that meaning. See id.

As the superior court noted, none of the statutes explicitly dictate that the Town must plow its roads. Phrases like "general supervision and control" and "see that town highways are properly ... maintained" are ambiguous in the sense that their plain and ordinary meaning does not resolve the question of whether a town may decide not to plow a class 2 highway. We must therefore look elsewhere in the statutes. Legislative history may also shed light in these circumstances. See In re Margaret Susan P., 169 Vt. ___, ___, 733 A.2d 38, 46 (1999) (recourse to legislative history appropriate when statute is "unclear and ambiguous").

Plaintiff relies primarily on the legislative classification system contained in 19 V.S.A. § 302 and its requirement that class 3 roads be "negotiable ... all seasons of the year by a standard manufactured pleasure car." 19 V.S.A. § 302(a)(3)(B). The legislative history indicates that the classification system was introduced in 1973 to clarify the system of state aid to local highways. 1973, No. 63, § 5 (amending 19 V.S.A. § 17).³ Prior to the 1973 modification, the major town roads were classified as state aid highways and town highways. The former were the most important...