Calais, Town of, v. County Road Commissioners

Town of Calais v. County Road Commissioners  (2000-194); 173 Vt. 620;
795 A.2d 1267

[Filed 25-Feb-2002]

[Motion for Reargument Denied 09-Apr-2002]


                                 ENTRY ORDER

                      SUPREME COURT DOCKET NO. 2000-194

                               JUNE TERM, 2001


  Town of Calais                       }	APPEALED FROM:
                                       }
                                       }
       v.                              }	Washington Superior Court
                                       }	
  County Road Commissioners            }
                                       }	DOCKET NO. 322-6-99 Wncv

                                                Trial Judge: David A. Jenkins

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

       The Town of Calais appeals from a superior court order affirming a
  decision of the County Road Commissioners requiring the Town to repair
  portions of Still Brook Road, a class 4 highway.  The Town contends the
  trial court: (1) lacked jurisdiction; (2) misconstrued the controlling
  statutory scheme; (3) erroneously failed to conduct a de novo hearing; and
  (4) improperly excluded certain evidence.  We agree with the contention
  that the trial court misconstrued the governing statutes, which vest the
  Town selectboard with broad discretion to determine the necessity of making
  repairs to class 4 highways.  Accordingly, we reverse.

       Appellees Sylvia and Steven Spooner brought this action to compel the
  Town to repair the portion of Still Brook Road which leads to their house
  and is classified as a class 4 highway.  The road had washed out in a storm
  and, as a result, contained very deep ruts.  The Town declined to make the
  repairs, relying on its class 4 road policy, enacted by the Town
  selectboard in 1996, which provides that maintenance of class 4 highways
  will be done by adjacent landowners who "shall bear all costs associated
  with said fourth class road . . . project," except that the Town Road
  Commissioner will evaluate each class 4 highway annually and "as time
  permits will perform minimal [summer] maintenance."  Appellees appealed to
  the County Road Commissioners who eventually found that the Town should
  "provide reasonable access and safety" for appellees by spending up to
  $1,500 to fill in washes and restore waterbars.

       On appeal by the Town, the superior court required it to go further,
  and return the road to its former condition with no cost limit.  The trial
  court held that the Town had not fulfilled its statutory responsibility to
  promote the public good, necessity, and convenience under 19 V.S.A. §
  310(b), which provides:

       Class 4 highways 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, or may be
       reclassified using the same procedures 

  

       as for laying out highways and meeting the standards 
       set forth in section 302 of this title.
       
       This appeal followed.

       The Town relies on the plain language of § 310(b), and its road
  maintenance policy adopted pursuant to that section.  We agree that the
  statute supports the Town's road maintenance policy, which in turn
  authorizes exactly the position the Town took here.  It is axiomatic that
  in construing a statute our objective is to effectuate the legislative
  intent.  See Sagar v. Warren Selectboard, 170 Vt. 167, 171, 744 A.2d 422,
  426 (1999).  We rely on the plain meaning of the words in a statute because
  we presume they reflect the Legislature's intent.  See Burlington Elect.
  Dep't v. Vt. Dep't of Taxes, 154 Vt. 332, 335-36, 576 A.2d 450, 452 (1990). 
  The plain, ordinary meaning of the word "may" indicates that a statute is
  permissive, not mandatory.  See In re D.L., 164 Vt. 223, 234, 669 A.2d 1172, 1180 (1995); Dover Town Sch. Dist. v. Simon, 162 Vt. 630, 631, 650 A.2d 514, 516 (1994) (mem.).  This conclusion is reinforced when the same
  statute elsewhere employs the mandatory "shall," indicating a conscious
  decision to grant discretion through use of the alternative "may."  See In
  re Stacey, 138 Vt. 68, 71, 411 A.2d 1359, 1361 (1980).  It is, of course,
  essential to harmonize a statute by construing its constituent parts to
  form a consistent whole, affording every provision significance and
  meaning.  See Sagar, 170 Vt. at 171, 744 A.2d  at 426.

       Here, the surrounding language only reinforces the conclusion that the
  statute grants the Town discretion in determining whether to maintain and
  repair class 4 highways.  Section 310(a) states, in pertinent part, that a
  town "shall keep its class 1, 2 and 3 highways . . . in good and sufficient
  repair during all seasons of the year." (emphasis added).  Section 310(b),
  in direct contrast, provides that "[c]lass 4 highways 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, or may be reclassified using
  the same procedures as for laying out highways." (emphasis added).  The use
  of "shall" and "may" in such close proximity conveys a conscious design to
  impart to the words their ordinary and distinct meanings, imposing a
  mandatory duty upon towns to maintain class 1, 2, and 3 roads, while
  affording general discretion to maintain class 4 roads.  The superior court
  decision and the dissent would make a town's responsibility to maintain a
  class 4 road indistinguishable from its responsibility to maintain a class
  3 road, despite the very different specification of these responsibilities
  in the statute.

       Also reinforcing the highly discretionary nature of the selectboard's
  powers is the list of standards to which the selectboard must adhere:  the
  necessity of the town, the public good, and the convenience of the
  inhabitants.  Even if the statute described the selectboard's power using
  "shall" rather than "may," the broad nature of the factors to be considered
  necessarily involves a high degree of discretion in their consideration.

        
       The Town has commendably implemented § 310(b) through a general
  policy, avoiding the kind of ad hoc decision-making that may lead to
  discriminatory application of discretion.  Although the policy establishes
  less Town responsibility for road repair and maintenance than appellees
  desire, it is fully consistent with the discretion accorded by § 310(b).  
  Indeed, it is noteworthy that although

  

  the trial court's ruling generally ignored the Town's road policy and
  refused to follow it, it did not explicitly declare it invalid.

       Clearly, therefore, under the statutory scheme described above, the
  selectboard's decision to refuse to pay for maintenance and repair of Still
  Brook Road must be upheld.  The class 4 highway policy expressly provides
  that the Town will not pay for the substantial road rebuilding sought by
  appellees, and the policy is valid under the statute.  This is the
  straightforward and direct answer to the Town's appeal.

       The trial court and appellees have cited four ostensible reasons for a
  contrary conclusion.  All involve a misreading of the clear legislative
  intent and, therefore, are not persuasive.

       First, appellees and the dissent rely on the statutory provisions for
  obtaining review of a town's decision not to repair a road.  See 19 V.S.A.
  §§ 971-76.  This argument assumes, however, that county road commissioners
  are not bound to respect the discretion of the town selectboard as defined
  in § 310(b), but are instead entitled to trump the selectboard's decision
  through their own view of what the public good requires.  It makes no sense
  to read the statute as authorizing the selectboard to act under one legal
  standard, and then authorizing the commissioners to overrule the
  selectboard under a different standard.  The review statutes are plainly
  "procedural rules," not substantive provisions.  Thus, they provide a
  remedy; they do not purport to define duties.

       Furthermore, the legislative history is inconsistent with appellees'
  reasoning.  The procedures set forth in §§ 971-76 antedate the current
  highway classification system and the differential repair duties contained
  in that system.  For example, the language specifying the commissioners'
  review power, now contained in 19 V.S.A. § 973, comes from a 1933 amendment
  to the statute, see 1933, No. 81, § 2.  In 1933, the statutory
  specification of the selectboard's responsibility fit with the review
  standards to be used by the county road commissioners.  Prior to the
  adoption of the current classification system in 1973,  the responsibility
  of towns to maintain and repair their local highways was broad and
  undifferentiated.  Former § 931 provided: "Towns shall keep such state aid
  highways in good repair at all seasons." 1957, No. 250, § 14.  The statute
  was revised, however, in 1973 as part of a package of amendments designed
  to ensure that state aid to local highways went only to roads that are
  passable year round.  See Sagar, 170 Vt. at 173, 744 A.2d  at 427 (reviewing
  legislative history of 1973 amendments).  The 1973 amendments installed a
  new classification system based on four categories of highways (classes 1,
  2, 3, and 4), see 19 V.S.A. § 302(a), imposed minimum maintenance standards
  for class 3 highways or better, see id., provided for annual state
  appropriations for class 1, 2, and 3 highways, see id. § 306, and amended §
  931 (later recodified as § 310) to provide that towns "shall" keep their
  class 1, 2, and 3 highways in good and sufficient repair, and "may"
  maintain their class 4 roads as they determine the public good and
  necessity requires.  See 1973, No. 63, § 20.

       Under appellees' and the dissent's theory, the Legislature amended the
  statute to give the selectboard discretion over the maintenance and repair
  of class 4 highways, but the county road commissioners can use
  pre-amendment procedural powers to overrule the exercise of the
  selectboard's discretion.  That construction of the applicable statutes is
  irrational.  The only rational construction of the statutes, one fully
  consistent with their broad language, is that the commissioners,

  

  as well as the superior court and this Court, must review a selectboard's
  decisions on repair of a class 4 road consistent with the broad new power
  the Legislature gave the selectboard in this area.(FN1)

       Appellees' second rationale is that § 310(b) makes reference to the
  option of reclassification, suggesting that the selectboard must either
  maintain and repair a class 4 highway or reclassify it to a trail, for
  which it has no responsibility of "maintenance, repair or safety."  19
  V.S.A. § 310(a).  This again misperceives the statutory meaning.  It is
  true that towns may reclassify class 4 roads.  See § 310(b) (class 4
  highways "may be reclassified using the same procedures as for laying out
  highways and meeting the standards set forth in section 302 of this
  title").  Although the language references the procedure for laying out
  highways, appellees's argument is that it was intended to refer to the
  procedure for laying out trails, despite the fact that the Legislature
  defined a trail as not a highway and there are no standards for trails in §
  302.  See Id. § 302(a)(5). 

       Properly understood, the reclassification language in § 310(b) refers
  to the option to reclassify a class 4 highway to a higher classification to
  gain state financial aid.  See 19 V.S.A. § 306 (setting forth annual
  legislative appropriations for class 1, 2 and 3 highways).  This is also
  the most effective remedy for a citizen who is dissatisfied with a town's
  limited responsibilities for a class 4 highway.  See, e.g., Hansen v. Town
  of Charleston, 157 Vt. 329, 330-32, 597 A.2d 321, 321-22 (1991) (affirming
  trial court order requiring reclassification of town highway from class 4
  to class 3 to obtain repair and plowing service); Catlin v. Town of
  Hartland, 138 Vt. 1, 2, 409 A.2d 596, 596-97 (1979) (affirming trial
  court's decision to reclassify road from class 4 to class 3 in order to
  require town to maintain road); Gilbert v. Town of Brookfield, 134 Vt. 251,
  253, 356 A.2d 524, 526 (1976) (upholding trial court determination that
  town had employed discriminatory criteria in classifying certain roads as
  class 4 highways - which it failed to plow during winter - while
  classifying others which were indistinguishable as class 3 and providing
  maintenance, repair, and plowing services).  Under the proper construction
  of the statutory language, a town is not required to reclassify a highway
  as a trail in order to provide only minimal maintenance for it.

       Third, the trial court relied upon other statutes and decisions to
  find that the Town had a duty to repair the road in this case. 
  Specifically, it found that 19 V.S.A. § 304(a)(1) requires that the
  selectboard exercise its discretion over repair and maintenance of roads
  only for the "safety of the public" and that the safety of the public
  requires maintenance and repair here.  We held in Sagar that the reference
  to the "safety of the public" in § 304(a)(1) does not mean that safety is
  the sole factor in determining the policy and action of the selectboard. 
  Sagar, 170 Vt. at 177, 744 A.2d  at 429-30.  With respect to class 4
  highways, § 310(b) clearly provides for a wider range of factors.

  
        
       The trial court also relied upon Morey v. Fitzgerald, 56 Vt. 487
  (1884), for the proposition that the Town is responsible to repair a
  washout of a road.  That case, however, arose under an old statutory scheme
  that has been substantially modified to eliminate this specific
  responsibility.

       Finally, apart from the specific statutory sections, the trial court
  suggested as a policy matter that the Legislature could not have intended
  to allow the Town to provide only minimal maintenance for its class 4
  highways, observing that under the Town's policy "it is difficult to
  imagine a circumstance under which any class 4 road would ever be
  repaired."  The trial court went on to state that the public good must
  require repair at least "following a natural disaster."  The trial court's
  policy may be better than the one adopted by the Legislature.  It may, for
  example, be fairer to order the Town to repair than to put appellees
  through the more uncertain and difficult procedure of seeking
  reclassification of the road.  That is not, however, the policy adopted by
  the Legislature, and we must implement the Legislature's policy choice
  rather than the court's.

       In reversing the trial court's decision, we do not hold, as the
  dissent claims, that a selectboard's discretion is virtually unlimited so
  that no review of its decision to refuse to repair or maintain a class 4
  road is possible.  A citizen can prevail if the citizen shows that the town
  has not acted pursuant to its policy or has acted in an arbitrary and
  discriminatory fashion.  See, e.g., Couture v. Selectmen of Berkshire, 121
  Vt. 359, 364-65, 159 A.2d 78, 82 (1960) (although selectboard enjoys broad
  authority over town roads, mandamus will lie where there appears an
  arbitrary abuse of power).  In this case, however, there was no showing
  that the selectboard's action was arbitrary or discriminatory or was
  unsupported by its policy.  Accordingly, the petition to the county road
  commissioners and the superior court must fail.

       We conclude, in sum, that the Town properly refused to repair the
  class 4 road in question under its class 4 highway policy.  Our conclusion
  renders it unnecessary to address the Town's additional arguments.  

       Reversed.

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                                 Dissenting


       MORSE, J., dissenting.   Although I agree with the Court that
  municipalities are granted discretion with regard to the repair and
  maintenance of class 4 roads, I believe that discretion must be exercised
  on an individual, case-by-case basis and the exercise of that discretion is
  subject to review - on an individual basis - under the statutory scheme.
  Because the statutory scheme providing for review of towns' decisions
  regarding road repair was properly followed in this case and the trial
  court's decision is supported by the record, I would affirm.  Accordingly,
  I dissent.

       I cannot agree with the proposition that the county road commissioners
  and courts cannot review the substance of a decision with respect to
  individual class 4 roads and are restricted to considering only whether a
  municipality's general road policy has been applied consistently and in a
  nondiscriminatory manner on an historic basis; I believe the
  decision-making regime established by the Court is at odds with the review
  scheme established by statute.  Nor do I agree with the Town's argument
  that 19 V.S.A. § 310(b) provides that a municipality's decision with
  respect to a class 4 road is unreviewable.
   
  

       As we have said previously, the statutory scheme created by 19 V.S.A.
  §§ 971-76 is "aimed at allowing citizens to obtain county review of a
  town's decision not to repair a road or bridge."  Villeneuve v. Town of
  Essex, 167 Vt. 618, 620, 713 A.2d 815, 816 (1998) (mem.).  Nothing in those
  sections limits their applicability to only class 1, 2 and 3 roads.
  Nevertheless, the Court reads § 310(b), which provides that "[c]lass 4
  highways 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,"
  to amend that scheme so that only decisions with regard to class 1, 2, and
  3 roads are reviewable on an individual basis. 

       The Court emphasizes that the statutory provisions establishing the
  different classes of roads and the standards for their maintenance were
  enacted after those providing for review of town decisions regarding repair
  and maintenance of roads and concludes that, while the provisions governing
  class 1, 2 and 3 roads did not affect the review statutes, the subsection
  governing class 4 roads was, in effect, an amendment to the review
  provisions.  I believe the timing of the enactment cuts exactly the other
  way.

       We must presume that the Legislature was aware of the existence of the
  statutes providing for review and that if it wished to exempt class 4
  roads, or establish a separate regime for review of decisions on class 4
  roads, it would have done so explicitly.  See 1A N. J. Singer, Sutherland
  Statutory Construction § 22.35 at 300 (5th ed. 1993) (noting "legislature
  is presumed to know the prior construction of the original act or code"
  when amending it); see also id. § 22.34 at 297 (amending provisions should
  be read with remaining provisions from original act as if enacted as one
  entity and should be interpreted so as not to conflict).  I see nothing in
  the language of § 310(b), either explicit or implicit, that does so.  Cf.
  id. § 22.13 at 515("Amendments by implication . . . are not favored . . .
  ."); see also Vt. Tenants, Inc. v. Vt. Hous. Fin. Agency, 170 Vt. 77, 83,
  742 A.2d 745, 749 (1999) ("In construing statutes, we have presumed that no
  repeal by implication is intended.").  In fact, § 310(b) does not address
  itself at all to review of a town's decision by either the commissioners or
  the superior court.  Like § 310(a) (establishing standards for class 1, 2
  and 3 roads), it merely establishes the standard for maintaining class 4
  roads.  Although it gives towns discretion, it must be read in conjunction
  with the statutes providing for review.  See In re A.C., 144 Vt. 37, 42,
  470 A.2d 1191, 1194 (1984) ("statutes relating to the same subject matter
  should be read in pari materia"); Singer, supra § 22.35 at 300 (noting this
  principle also applies to an amended statute with respect to preexisting
  statutes on the same subject matter).

       Indeed, we have previously interpreted the review statutes to allow
  for review of individual decisions, including those respecting class 4
  roads.  In an unpublished decision concerning the very same portion of the
  road at issue in this case, we passed on the question of the nature of the
  hearing before the trial court when a decision of the Town to install a
  speed bump was challenged.  We agreed with the Town's position in that case
  that appeals from reports of the county road commissioners should be heard
  de novo.  In re T.H. 52, No. 98-151, slip op. at 2 (Vt. Jun. 8, 1999)
  (stating 19 V.S.A. § 976 indicates that "the superior court may make its
  own record of facts upon which to base its conclusions of law" and finding
  "no error in the superior court conducting a hearing de novo").  Although
  unpublished decisions are not binding precedent, in light of the Town
  advocating the same position in this case, our review should be confined to
  whether the superior court's decision, following the de novo hearing
  provided for by statute, is supported by the record.
   
       With respect to the merits of this particular case, the residents of
  the road at issue, who could no longer access their full-time residence
  because the road was washed out, petitioned the Town to  make the necessary
  repairs.  The Town did not respond, and the residents petitioned the
  superior court under 19 V.S.A. §§ 971-72 seeking an inspection of the road
  by the county road commissioners.  The commissioners submitted a report to
  the court recommending the Town repair the road.  Under 19 V.S.A. § 976,
  the Town appealed this determination to the superior court, arguing that it
  was entitled to a de novo hearing on the matter.  The superior court agreed
  and conducted a de novo hearing on the merits, after which it likewise
  determined that the Town should repair the road.  This is precisely the
  process contemplated by the statutory scheme.

       The following evidence was introduced at the hearing before the
  superior court: As the result of severe storms in the summer of 1998, which
  led to Washington County being declared a federal disaster area, the road
  at issue was washed out and became impassable.  As the Town concedes, the
  washouts were up to six feet deep in places. A member of the Town's
  selectboard testified before the superior court that individuals other than
  the residents of the road use the class 4 portion and, following the
  washouts, the road was no longer safe to travel.  The Town's position,
  however, was that the residents were responsible for the repair of the road
  to make it passable.  The residents testified that they can no longer get
  basic services to their house because of the condition of the road.  They
  also testified to difficulties obtaining insurance as a result of the lack
  of such services, including fire protection. 

       As the Town does not dispute this evidence, and it supports the trial
  court's disposition in this case, I would affirm.  I am authorized to say
  that Justice Johnson joins in this dissent.




                                        BY THE COURT:


  Dissenting:


  __________________________________	______________________________________
  James L. Morse, Associate Justice	Jeffrey L. Amestoy, Chief Justice

  __________________________________	______________________________________
  Denise R. Johnson, Associate Justice	John A. Dooley, Associate Justice

                                        ______________________________________
                                        Marilyn S. Skoglund, Associate Justice


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                                  Footnotes

  FN1.  Our unpublished decision in In re T.H. 52, No. 98-151 (Vt. Jun. 8,
  1999), cited by the dissent, simply affirms the trial court's authority to
  conduct a de novo hearing in reviewing a decision of the county road
  commissioners.  It did not address the court's or commissioners' authority
  to review a Town's decision as to whether, or to what extent, to maintain a
  class 4 road.