David Demarest, et al.
Town of Underhill
On Appeal from Superior Court, Chittenden Unit, Civil Division Dennis R. Pearson, J.
Christopher D. Roy of Downs Rachlin Martin PLLC, Burlington, for Petitioners-Appellees.
John W. O'Donnell of Bergeron, Paradis & Fitzpatrick LLP, Burlington, for Respondent-Appellant.
PRESENT: Dooley, Skoglund, Robinson and Eaton, JJ., and Hoar, Supr. J., Specially Assigned
¶ 1. The Town of Underhill (Town) appeals from a trial court order affirming a decision of the County Road Commissioners requiring the Town to maintain a segment of Town Highway 26 (TH 26), a Class 4 highway. The Town contends that the trial court misconstrued and incorrectly applied the statutory provisions for the maintenance of Class 4 roads and erroneously established its own maintenance standard. We agree with the Town and reverse.
¶ 2. TH 26 has existed, in some form, for nearly 150 years. In its present configuration, TH 26 is a 1.54 mile-long, single-lane roadway that intersects Irish Settlement Road to the north, running south until it terminates near a beaver pond at the beginning of the Crane Brook Trail, a legal trail that goes on to intersect with Pleasant Valley Road. Because of the roadway's gradient, which rises from about 910 feet at the intersection with Irish Settlement Road to 1040 feet at its highest point, runoff generally drains in a constant stream towards the intersection with Irish Settlement Road.
¶ 3. In 2001, the Town sought to reclassify a segment of TH 26 between Irish Settlement Road and Pleasant Valley Road as a legal trail, and the remainder of the roadway as a Class 4 highway. Following protracted litigation, these changes became effective in June 2010, and TH 26 became part of the Town's six miles of Class 4 highways.
¶ 4. Prior to the reclassification of TH 26, the Town performed periodic maintenance and repair work to both the roadway and the twenty-two culverts that were installed along and under TH 26 over the past thirty years. Although the ditches along TH 26 do not appear to have been maintained since 2010, the Town has continued to do some work, primarily the addition of base material to the roadway. For example, in April 2013, the Town put down 115 cubic yards of 1-and-¼ inch fractured stone. Following severe storms in late May and early June 2013, which caused increased runoff, the Town made repairs to culverts #1 through #4 at or near the intersection with Irish Settlement Road. The Town also put down another 108 cubic yards of crusher run gravel in late June 2013, followed by another 62 cubic yards in August 2013.
¶ 5. Appellees David Demarest, Jeffrey Moulton, and Jonathan Fuller own property on TH 26 in the Town of Underhill. Appellees Fuller and Demarest reside at their properties full time, while two additional residents along the road are part-time residents. On February 28, 2012, appellees filed a notice of insufficiency pursuant to 19 V.S.A. § 971 requesting maintenance of TH 26, which had been largely deferred following the roadway reclassification. By letter dated March 1, 2012, the Town denied appellees' allegations, asserting that TH 26 was being maintained to the extent required by the necessity of the Town, the public good, and the convenience of the inhabitants of the Town. In April 2012, appellees brought an action for the appointment of County Road Commissioners pursuant to 19 V.S.A. § 971 et seq. to compel the Town to undertake repairs of TH 26. Specifically, appellees sought repairs and maintenance to drainage, culverts, and the road surface, so as to make it reasonably safe and accessible for appellees' use as residents of the Town.
¶ 6. Three Commissioners were appointed by the trial court. Following proceedings, as required by statute, the Commissioners filed a report with the trial court on June 26, 2013.The Commissioners found that TH 26 had undersized culverts, inadequate drainage, insufficiently spaced culverts, unmaintained ditches, lack of proper road crown, evidence of road flooding due to unmanaged beaver pond construction, and inadequate road cover. The Commissioners' report unanimously concluded that TH 26 was "out of repair or unsafe for travel, and that the public good demand[ed] that [TH 26] . . . be repaired." The Commissioners acknowledged that under the Town's policy, "the town is not required to regularly maintain a class  highway, " although "class IV highway[s] may be maintained to the extent required by the necessity of the town, the public good, and the convenience of the inhabitants of the town." Despite the Town's policy, however, the Commissioners found that "by making improvements and maintaining the road in the past [the Town] created a situation where property owners abutting [TH 26] have a justifiable expectation that maintenance and repair will continue." The Commissioners thus ordered the Town to bring all of TH 26 into compliance with all standards and specifications applicable to any private road in the Town serving three or more residences, specifically ordering that the Town replace all five of the culverts that it had graded as "fair" or "poor." According to the Commissioners' estimate, the cost of the updates to TH 26 would be $68, 000. The Town appealed the Commissioners' report pursuant to 19 V.S.A. § 976.
¶ 7. On appeal, the trial court entered judgment against the Town, adopting the Commissioners' report in part and modifying it in part. Providing that the Town could not "act arbitrarily and must still observe some minimal road maintenance and/or construction criteria which will ensure basic safety and reliability, " the trial court required the Town to undertake many, but not all, of the Commissioners' recommendations. Specifically, the trial court found the following repairs or maintenance to be either "minimal and basic improvements necessary on [the] record, " required for "basic safety and convenience, " necessary "to restore [TH 26] to basic class 4 condition, " or "consistent with minimal observance of the standard of necessity, public good, and convenience": the replacement of five culverts rated as "fair" or "poor"; the addition of minimally adequate base and top surface material over all culverts; widening of the road in at least a few spots to twelve feet to allow for the passage of emergency vehicles; ditching maintenance along the entire length of the road; and rebuilding of the most seriously defective stonework around the culverts. The Town moved for reconsideration, which the trial court denied.
¶ 8. This appeal followed. The Town contends that the trial court erred in requiring maintenance of TH 26 because the decision whether or not to undertake repairs of a Class 4 highway is within the Town's discretion. Specifically, the Town raises two arguments: (1) that the trial court erred in in its interpretation of 19 V.S.A. § 310(b) by failing to recognize that § 310(b) allows for discretion in determining whether to maintain and repair Class 4 highways as long as that discretion is not exercised in an arbitrary and discriminatory fashion; and (2) that this error resulted in the trial court's establishing and applying its own maintenance standard, which was different from both § 310(b) and the Town of Underhill Road Policy. In Vermont, a town's duties "with respect to roads are entirely statutory." Sagar v. Warren Selectboard, 170 Vt. 167, 171, 744 A.2d 422, 426 (1999). "The applicability of this statutory duty is a question of law, which [this Court] reviews de novo." In re Town Highway No. 20, 2012 VT 17, ¶ 61, 191 Vt. 231, 45 A.3d 54 (mem.).
¶ 9. In Town of Calais v. Cty. Road Comm'rs, 173 Vt. 620, 621, 795 A.2d 1267, 1268 (2002) (mem.), we held that 19 V.S.A. § 310(b) grants towns discretion in determining whether to maintain and repair Class 4 highways. The list of factors to be considered in § 310(b), which includes the necessity of the town, the public good, and the convenience of the inhabitants, reinforces the highly discretionary nature of the town's powers. This discretion is not unlimited, however, and citizens challenging a town's decision under § 310(b) can prevail if they show "that the town has not acted pursuant to its policy or has acted in an arbitrary and discriminatory fashion." Id. at 624, 795 A.2d at 1271. A town's decision will therefore be upheld if supported by its road policy and based on standards or ...