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In re Town Highway 26

Supreme Court of Vermont

May 14, 2015

In re Town Highway 26, Town of Underhill

Editorial Note:

This decision has been designated as "Supreme Court of Vermont Appeals Disposed of Without Published Opinion or Memorandum Decision." table in the Atlantic Reporter.

APPEALED FROM: Superior Court, Chittenden Unit, Civil Division. DOCKET NO. 234-2-10 Cncv. Trial Judge: Dennis R. Pearson.

Paul L. Reiber, Chief Justice, John A. Dooley, Associate Justice, Marilyn S. Skoglund, Associate Justice.



In the above-entitled cause, the Clerk will enter:

Petitioners David Demarest, Jeffrey Moulton, and Jonathan Fuller, appeal from the trial court's order dismissing this case as moot in light of a recent decision by this Court in a related action. They argue that the action is not moot. We affirm.

We begin with the procedural history of this case and a related case. In 2013, this Court decided an appeal brought by petitioners David Demarest and Jeffrey Moulton in a related action. See Demarest v. Town of Underhill, 2013 VT 72, 195 Vt. 204, 87 A.3d 439. The petitioners in Demarest challenged a 2012 trial court order that upheld 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. We affirmed the trial court's decision. As recounted in that case, the petitioners own real property adjacent to TH 26. In 2001, the town selectboard reclassified portions of TH 26 as a legal trail to be used for recreational purposes. The Town complied with all of the statutory procedures for reclassification, except that it failed to formally record the reclassification order in the land records. Id. ¶ 2. After the 2001 reclassification process, the Town stopped maintaining the purportedly reclassified segment of TH 26 as a road. Id. The condition of the segment of TH 26 at issue deteriorated significantly as a result. Id. ¶ 3.

In February 2010, interested parties filed suit in superior court seeking an order that required the Town to repair and maintain the disputed segment (the maintenance case). Id. ¶ 4. This is the lawsuit at issue in the instant case. While towns are not responsible for maintaining trails, the petitioners argued that the Town's 2001 reclassification attempt was ineffective, and that the Town thus had an obligation to maintain the road. Id. The Town defended the action but also initiated a new reclassification proceeding in light of the petitioners' challenge. The selectboard approved the reclassification in June 2010, and the petitioners appealed from this order as well.

The petitioners then requested that the trial court stay proceedings in the reclassification case pending resolution of the maintenance case. In the maintenance case, petitioners sought an order requiring the Town to restore the disputed segment to the condition of a road. Because the court's decision in the maintenance case could lead to restoration of road-level conditions on the segment, thus undercutting the rationale in support of the reclassification, petitioners argued that the court should decide the maintenance case first. Id. ¶ 7. The trial court concluded that the issues presented in the two cases were distinct and denied the petitioners' motion for a stay.

In May 2011, while the appeal of the Town's 2010 reclassification decision was pending, the trial court ruled in the context of the maintenance case that the 2001 reclassification effort was, in fact, ineffective because the Town had failed to record the reclassification order in the town land records. The court then stayed further action on the maintenance case pending resolution of the reclassification appeal. Id. ¶ 8. The trial court subsequently denied the Town's motion for summary judgment in the maintenance case and instructed the County Road Commissioners to prepare a report pursuant to 19 V.S.A. § 973. The Commissioners completed the report in June 2013, and recommended certain repairs to the trail portion of TH 26. The Town appealed that report to the superior court. Id. ¶ 8 n.2.

As indicated above, the trial court subsequently concluded that the Town's 2010 reclassification decision was supported by the evidence, and this Court upheld its decision. In our decision, we rejected the petitioners' argument that the trial court erred in denying their motion for a stay so that they could pursue the maintenance case first. Id. ¶ ¶ 15-19. We noted that the petitioners had not challenged the Town's maintenance decision until 2010, long after the deterioration in the road due to the lack of maintenance had actually occurred. They now asked the courts to undo the consequences of nearly a decade of unappealed maintenance decisions before considering the Town's reclassification decision. We found no legal requirement that the road be brought back to its 2001 condition before the Town could undertake reclassification. Id. ¶ 18. We also found no evidence that the Town acted arbitrarily in deciding to stop maintaining the road. Id. ¶ 19. " On the facts of this case," we explained, " it was appropriate for the Town to base its 2011 reclassification decision on the conditions then existing." Id. We found that " [t]he court in the maintenance case likewise reasonably stayed that case pending resolution of the reclassification case, recognizing that the reclassification could render the maintenance issue moot." Id.

Following our decision in Demarest, 195 Vt. 204, 2013 VT 72, 87 A.3d 439, the trial court determined sua sponte that it lacked subject matter jurisdiction over the maintenance action because it was moot. The court found that there was no longer any effective relief that it could grant to petitioners going forward because applicable statutes, i.e., 19 V.S.A. § § 302(a)(5) and 310(c), expressly provided that towns were not required to expend any funds or make any effort to repair or maintain any public road classified as a trail. The court dismissed the maintenance case as moot in April 2014.

Petitioners moved for reconsideration, and the court denied their request. Petitioners raised three arguments why the court erred in dismissing the case as moot, and also argued that dismissal of their case would violate their fundamental right to access the Vermont courts under Article 4, Chapter 1, of the Vermont Constitution. Petitioners first argued that while the highway statutes referenced above could not be used to compel a town to pay for trail maintenance and repairs, they did not prohibit towns from doing so, and thus, the court could theoretically still award some relief. The court found that this semantic argument, while perhaps true, was really just another illustration of why the case was moot. The court found that mootness was essentially conceded in the way in which the argument was framed: while ...

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