The Road Worrier

 By Daniel Richardson

Ketchum v. Town of Dorset, 2011 VT 49 (mem.)

Plaintiffs own property and a house on Upper Kirby Road in Dorset.  Their segment of the road serves their seasonal residence, as well as open-lands conserved for the use and enjoyment of the public.  For decades, the Town plowed and maintained Upper Kirby Road.  In 2008, the Town, through a public hearing process, decided to reclassify this segment of the road from class 3 to class 4.  For those non-road law junkies out there, this means that the Town would no longer have to plow or maintain the road, tasks that would now fall upon Plaintiffs.  The Town based this decision on the facts that plowing the narrow road was difficult, that the plows could not turn around but had to back down, that the steep incline of the road had caused the plow to slide off the road on several occasions, and the costs to improve the road were prohibitive. 

Needless to say Plaintiffs were not happy with this outcome and sought to appeal it.  They wanted to argue that the difficulties with plowing were due to the Town’s newer and larger plow; that they needed access to the house as they lived there into the winter season; that the change would prevent propane delivery trucks from servicing the house; that it would prevent a neighboring farmer from reaching his cow pastures; that it would prevent logging activity; and that the reclassification would affect the public’s ability to access and use the conservation lands beyond. 

Here is the problem.  Under the law, an interested party, like Plaintiffs, can appeal a town’s determination concerning the laying out, alteration, or re-surveying of a highway to the trial court for a de novo review where new evidence can be submitted and new findings made.  But there is nothing explicitly in the law granting the same right for a person who seeks to disputes a town’s reclassification of a road. 

The difference is critical.  If there is no right to appeal then the only court review Plaintiffs can seek is under Rule 75.  Rule 75 is the catchall rule of court procedure that says when the statute gives no right to appeal from a government action you can still appeal on any legal issue (the formal phrase is “in the nature of certiorari”).  The difference is stark.  Unlike an appeal on the merits, a Rule 75 appeal does not allow parties to supplement the factual record or make new arguments.  Under Rule 75, the trial court is acting like an appellate court and is essentially looking at whether there is enough evidence to support the town’s decision and whether it followed the required process and procedure—not whether it was the right decision or even the same decision that the trial court would make.  Rule 75 is a limited right of review.  It is there to protect the process more than the individual.  It is a decidedly stacked deck against anyone seeking to challenge the town’s decision.  As a result, very few Rule 75 appeals succeed. 

The question of whether Plaintiffs are entitled to a full appeal or a limited Rule 75 appeal comes down to a matter of statutory interpretation.  The processes for reclassification, altering, laying out, or re-surveying a road are the same and contained within the same statutes (19 V.S.A. §§ 708–710).  The process begins with either a citizen petition or the selectboard.  There is a hearing with evidence, and then, a decision.  The statutes controlling the appeal from that decision are where Plaintiffs run into trouble.  Under 19 V.S.A. §§ 740–741, parties have a right to appeal decisions laying out, re-surveying, or altering a road, but no mention is made of reclassification. 

The SCOV does not buy Plaintiffs’ argument that a reclassification fits under the term “alteration.”  Alteration is defined in the statute to mean a major physical change.  This does not readily lend itself to a process that is a shift in category with no concomitant physical change.  Plaintiffs also argue that reclassification’s absence is an accidental omission, but the SCOV is unwilling to read reclassifications into the statute.  Right or wrong, the legislature left them out, and Plaintiff’s only recourse is Rule 75.

As with most Rule 75 cases, there is little hope for Plaintiffs’ case.  The SCOV affirms the trial court’s decision not to allow new evidence, and it upholds the trial court’s determination that the Town’s interest in reclassifying the road was supported by ample evidence.

Today’s case is not a groundbreaking extension of the law of roads or a sea change by the SCOV, whose impact will ripple into future cases.  Rather today’s entry is yet another brick in the wall that the SCOV has been building for the past twenty years that has vested more and more authority in towns to control their roads and their hearing processes.  Practically speaking, it means that individuals seeking to challenge a proposed road reclassification will have to muster their witnesses and testimony at the town-hearing level.  This may be difficult, as town hearings can slip by unnoticed and with little fanfare.  But it is critical for anyone seeking to mount a serious challenge to what they believe will be a road too few.