My Statutory Prerogative

Demarest v. Underhill, 2016 VT 10

This case focuses on who gets the responsibility of maintaining an old, rough road in Underhill, Vermont: the Town that has historically maintained it, or the road’s neighbors. This road, known as Town Highway 26 (TH 26) has been around for about 150 years. It is a single lane about 1.5 miles long that leads to a beaver pond. The road intersects with both Irish Settlement Road and Pleasant Valley Road. In 2001, the Town of Underhill tried to reclassify a segment of TH 26 between Irish Settlement Road and Pleasant Valley road as a legal trail. There was some litigation involved, but the changes became effective in June 2010, and TH 26 became part of the Town’s six miles of Class 4 highways.

Before this reclassification took place, the Town would do some maintenance and repair work to the roadway and the twenty-two culverts under the road. Since the reclassification, the Town has done some work to the road, mostly by adding base material to the roadway. In spring 2013, the Town made some repairs to four culverts following severe storms and increased runoff.

Appellees Demarest, Moulton, and Fuller all own property on TH 26 in Underhill. In early 2012, they filed a notice of insufficiency asking for maintenance of TH 26. The Town denied the notice, asserting that it was maintaining TH 26 to the “extent required by the necessity of the Town, the public good, and the convenience of the inhabitants of the Town.” Appellees brought an action for repairs and maintenance to drainage, culverts, and road surfaces.

The trial court appointed three Commissioners who found that TH 26 had a variety of problems making it unsafe for travel. The Commissioners also acknowledged that the town is not required to regularly maintain a Class 4 highway, but also added that because the Town had made improvements in the past, the abutting property owns have a justifiable expectation that maintenance and repair will continue. The Commissioners then ordered the town to make various repairs and improvements costing about $68,000.

The Town appealed the report, and the trial court entered judgment against the town, adopting the Commissioners’ report in part, and modifying it in part. The trial court required the Town to undertake some recommendations, which “will ensure basic safety and reliability.” The Town moved for reconsideration, which the trial court unsurprisingly denied.

The Town appeals to SCOV, claiming that the trial court erred in requiring maintenance of TH 26 because the decision whether or not to make repairs of a Class 4 highway is in the Town’s discretion.

The SCOV notes that under 19 V.S.A. §310(b), towns have discretion in determining whether to maintain and repair Class 4 highways. There are factors to be considered when deciding to repair, such as the necessity of the town, and the convenience of the inhabitants. A citizen can get around this discretion by showing the town has acted arbitrarily and discriminatorily.

In a similar case regarding the Town of Calais, the SCOV affirmed the town’s decision to not repair a Class 4 highway, finding that it was pursuant to a general town policy that maintenance was the adjacent landowner’s problem, except for some minimal summer maintenance. Underhill’s road policy has similar language to this previous case. The trial court added requirements into the standard, considering whether the Town had some obligation to perform minimal road maintenance to ensure basic safety and reliability.

The SCOV agrees with the trial court in that the Town’s road policy does not have much substance. While the Town’s road policy adds little to the applicable statutory language, it emphasizes the discretionary nature of its decision-making.

The trial court noted that it is within the Town’s “statutory prerogative” to spend less on maintenance of Class 4 roads than the appellees might prefer, but the prerogative must be “within reason and based on non-arbitrary factors.” Then the trial court dived into the Town’s decision-making process and the court’s own analysis of the need for repairs and maintenance. The trial court found the Town’s decision arbitrary—not from the Town’s implementation of its own policy, but from a “proper engineering perspective.”

The Town says that TH 26 is being maintained to the extent required by the necessity of the Town, the public good and the convenience of the inhabitants of the Town. The court requires that the Town’s decision be in line with its road policy, if consistent with the statute, and the decision be not arbitrary or discriminatory in implementation of the Town’s policy. The SCOV agrees with the Town and reverses, concluding that there was no basis to find the decision was arbitrary or outside the scope of the Town’s broad discretion.

The SCOV also notes that broad discretion under the statute binds the Commissioners and the trial court, leaving them powerless in reaching a different conclusion. There’s a good chance that Class 4 roads would never be repaired under such discretion, but that’s because of the legislature’s statute, not the court’s policy. So, take your concerns to Montpelier. Or, elect new town officials who will fix your roads, I guess.

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