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Demarest v. Town of Underhill

Supreme Court of Vermont

September 27, 2013

David Demarest and Jeffrey Moulton
v.
Town of Underhill

Motion for Reargument Denied October 31, 2013.

Editorial Note:

This Opinion is subject to motion for reargument or formal revision before publication. See V.R.A.P. 40

On Appeal from Superior Court, Chittenden Unit, Civil Division. Geoffrey W. Crawford, J.

Christopher D. Roy of Downs Rachlin Martin PLLC, Burlington, for Plaintiffs-Appellants.

John W. O'Donnell of Bergeron, Paradis & Fitzpatrick LLP, Burlington, for Defendant-Appellee.

Present: Reiber, C.J., Dooley, Skoglund, Burgess and Robinson, JJ.

OPINION

Page 440

Robinson, J.

[¶ 1] Petitioners appeal from the trial court's 2012 order upholding the Town of Underhill's decision to reclassify a segment of Town Highway 26 (TH 26) from a Class 3 and Class 4 highway to a legal trail. Petitioners argue that: the trial court should have appointed commissioners to make a report concerning the reclassification decision pursuant to 19 V.S.A. § § 740-743 rather than reviewing the reclassification decision on the record pursuant to Vermont Rule of Civil Procedure 75; the court erred in declining to stay the appeal pending resolution of a related action concerning maintenance of the segment; and the evidence did not support the Town's reclassification ruling. We affirm.

[¶ 2] Petitioners own real property adjacent to TH 26. In 2001 the Underhill Selectboard reclassified portions of TH 26 as a legal trail.[1] At the time, some of the

Page 441

roadway in question was designated as a Class 3 highway, and some was a Class 4 highway. To that end, the Selectboard provided the statutorily required public notice, conducted a site visit, conducted a public hearing, and voted to order the reclassification. The Town complied with all of the statutory procedures for reclassifying a road, except that it failed to formally record the reclassification order in the land records. In 2002, after public notice and an informational meeting, the Selectboard adopted a Trail Travel Ordinance for Crane Brook Trail -- the name of the trail created by the purported 2001 reclassification. The ordinance contemplated that the trail would be used for recreational purposes. After the 2001 reclassification process, the Town stopped maintaining the purportedly reclassified segment of TH 26 as a road.

[¶ 3] In the years following the purported 2001 reclassification, the condition of the segment of old TH 26 at issue here deteriorated significantly. In the absence of culvert maintenance and drainage management, beaver ponds by the road expanded causing wash-out and erosion in portions of the segment.

[¶ 4] In February 2010, interested parties filed suit in superior court pursuant to 19 V.S.A. § 971 seeking an order requiring that the Town repair and maintain the disputed segment (the maintenance case). Although towns are not responsible for maintaining trails, In re Town Highway No. 20 of Town of Georgia, 2003 VT 76, ¶ 3 n.*, 175 Vt. 626, 834 A.2d 17 (mem.) (citing 19 V.S.A. § 302(a)(5)), the petitioners argued that the Town's 2001 reclassification attempt was ineffective, and that the Town thus had an obligation to maintain the road. 19 V.S.A. § § 970-979.

[¶ 5] The Town defended that action, but in March 2010 it also initiated a new reclassification proceeding in light of the challenge to the legal sufficiency of the 2001 reclassification. The Selectboard provided notice, conducted a site visit, solicited written comments on the reclassification question, and held a hearing to take testimony from interested persons. In a June 2010 " Order of Classification," the Selectboard determined that:

TH 26 should now consist of three separate segments: The first segment shall extend, as before, from Pleasant Valley Road north to the Town Garage and shall be maintained as a Class 3 highway; the second shall be a legal trail extending from the Town Garage north to a point just south of the current driveway access to TH 26 from the property now owned by David Demarest, and; the third remaining segment shall extend from the northern end of the legal trail north to Irish Settlement Road, shall be known as Fuller Road, and shall be maintained as a Class 4 highway.

[¶ 6] The order asserted that the reclassification action " was taken for the public good, convenience and necessity of the inhabitants of the Town of Underhill," and the Selectboard identified sixteen reasons in support of its decision. This 2010 reclassification order is the subject of this appeal.

[¶ 7] Petitioners appealed the Selectboard's reclassification order to the superior court, ostensibly pursuant to V.R.C.P. 74 and 19 V.S.A. § 740. Section 740(a) ...


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