Saturday, January 25, 2014

Reclassification Revisited: Road Worrier Part Deux

Demarest v. Town of Underhill, 2013 VT 72

This case takes us back a decade to a town’s decision to convert a class-four road into a trail.  There’s surely a poorly conceived it-could’ve-been-a-tree-lined-trail-if-not-for-this-case joke to be had here.  But I digress. 

A dozen years ago, the town’s selectboard decided that a portion of a town highway should be reclassified as a legal trail.  The town complied with the statutory procedures for doing so, “except that it failed to formally record the reclassification order in the land records.”

A year later, the selectboard adopted an ordinance regarding the newly created (alleged) trail.  The ordinance contemplated that the trail would be used for recreation.  The town stopped maintaining the Trail-Formerly-Known-as-Road (or as I like to refer to it, the unpronounceable symbol, Á).  (By the way, the albums Á put out after the reclassification were not as well-received as the Road’s albums before the reclassification).

Without regular maintenance, the “trail” section of the road deteriorated significantly.  Eventually (about eight years after the initial “reclassification”), nearby beaver ponds expanded and washed it out.  Now, one might think that the town would send a cease-and-desist letter to the abutting landowners and one of the landowners would send a great response about “dam beavers” and the “dam letter”—such as what happened here

No such hilarity ensued.  Instead, petitioners filed suit against the town claiming that the reclassification attempt was ineffective and the town had an obligation to maintain the segment.  Towns are not required to maintain trails, but are required to maintain roads.  The SCOV refers to this as a “maintenance case.”    

The town defended that action, but also started a new reclassification process in light of the legal challenge to the initial reclassification process.  The town made various findings and gave several reasons for its decision, eventually issuing an order of reclassification. 

Petitioners appealed that order.  Their argument was, more or less, that the trial court had to appoint three commissioners as set forth by statute because the town’s order “altered” the highway.  The parties initially agreed that the way to the courthouse was by another provision in the Vermont statutes that allows an interested party to appeal an order when a highway is “altered.”  The trial court was skeptical about the parties’ construct of “altered” but went along for the ride.           

Here it starts to get a little complicated.  Petitioners requested the trial court stay proceedings in the reclassification case pending resolution of the maintenance case.  The reasoning was that petitioner’s success in the maintenance case would restore the trail to a road, and undercut the reasoning in support of the current reclassification.  The trial court reasoned that each case presented distinct and separate issues, and denied the motion for a stay. 

But while the reclassification case was pending, the trial court ruled that the initial reclassification was no bueno, because of the town’s failure to record the order in the land records.  The court then stayed the maintenance case pending resolution of the reclassification case.

And while all this was progressing, the SCOV handed down the Road Worrier case.  In that case, the SCOV reasoned that reclassification ain’t “alteration” under the statutory provisions that provide for appointment of commissioners and such.  That changed the whole game.  Because a reclassification isn’t an alteration, the route to the courthouse and the trial court’s scope of review just got a whole lot narrower.  Accordingly, the trial court conducted an on-the-record review, did not appoint any commissioners, and concluded that the town’s (second) reclassification decision was adequately supported by the evidence.   Petitioners appealed.     

Everything that rises must converge, and here are the arguments on appeal: (1) trial court erred in treating this as an on-the-record-review situation as opposed to a de novo review; (2) trial court should’ve stayed the reclassification proceeding as requested; and (3) the town made the mess that justified its later reclassification decision and so the record evidence didn’t really support its decision. 

First, the SCOV looks at the we-should’ve-got-a-de-novo-review-even-though-y’all-rejected-that-approach-while-this-case-was-pending claim.  Without getting into excruciating detail, the SCOV (more or less) says: “Perhaps you didn’t hear us the first time: reclassification is not alteration.  You’re not getting commissioners and de novo review because the statue doesn’t apply.”  Despite petitioners’ valiant footnote-based attempts to distinguish Road Worrier the SCOV is firm.   

The SCOV next considers petitioners’ reclassification-case-should’ve-been-stayed-while-the-maintenance-case-got-resolved argument.  The SCOV notes that the trial court found no legal requirement that the town restore the road to its prior state.  Towns have wide discretion in maintaining class-four roads.  Along that line, there was no evidence that the town acted arbitrarily.  The reason the initial reclassification failed was because the order wasn’t recorded in the land records.  Otherwise, this was simply a discretionary road-maintenance-budget decision.  Overall, it’s an interesting discussion, but the SCOV ultimately concludes that there was “no abuse of discretion in the court’s denial of petitioners’ request for a stay.”

Finally, the SCOV turns to the petitioners’ arguments on the merits.  The basic thrust is that the town created the very problems (by its initial faulty reclassification) that justified its second reclassification—that the road would cost a lot to maintain and restore, etcetera. 

Though it’s an interesting argument, the SCOV doesn’t appear to think much of it.  The trial court could find no case law in support and the SCOV can’t either.  Or maybe it doesn’t want to.  The SCOV discusses the various points raised by petitioners reasoning that on each point, the trial court found adequate support for the town’s decision. 

The SCOV then turns to petitioners’ lack-of-evidentiary-support claims.  On this tack, the SCOV notes that review is limited to “whether there is any competent evidence to justify the adjudication.”  This does not bode well for petitioners. 

And indeed, the SCOV finds some support in the form of “any competent evidence” for all parts of the town’s decision to reclassify the road:  (1) it would cost a lot; (2) there was plenty of support for the conservation- and-recreation-purposed goal of the reclassification; (3) the area had returned to being a wetland and winter habitat and motor-vehicle use would be detrimental to wildlife; (4) the trail was not important as a through road; (5) abutting landowners would still have access to their parcels.  In short, the SCOV concludes that there was ample evidence and reasoning to support the town’s reclassification decision. 

Petitioners’ final argument is that the reclassification order repeatedly refers to a decision to maintain the section-in-controversy as a class-four road as an “upgrade” when it was a class-four road and the town was seeking to downgrade it.  The SCOV finds this semantic anomaly unpersuasive.  As the SCOV sees it, everybody kind of thought it was a trail at that point, so no matter what the selectboard called it, the decision was adequately supported. 

So it would seem that towns are pretty safe from heavy scrutiny so long as they do a reasonable job of explaining a reclassification decision.  This is the second time in as many years that the SCOV has considered this discrete issue.  Who, besides Paul Gillies, knew Vermont road-reclassification law was such a hot topic?  

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