Hansen v. Town of Charleston

NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
as well as formal revision before publication in the Vermont Reports.
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.


                                No. 90-193


David H. Hansen and Miriam                   Supreme Court
Klein-Hansen, Thomas Jensen
                                             On Appeal from
     v.                                      Orleans Superior Court

Town of Charleston                           February Term, 1991


John P. Meaker, J.

James M. Ritvo, Montpelier, and Heather R. Wishik, Northfield, for
           plaintiffs-appellees

William Boyd Davies and Rachel A. Hexter of May, Davies, Franco & Hexter,
  Newport, for defendants-appellants

Glenn C. Howland of McKee, Giuliani & Cleveland, Montpelier, for amicus
  curiae Vermont League of Cities and Towns


PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.


     DOOLEY, J.   Defendant, Town of Charleston, appeals from an order of
the Orleans Superior Court reclassifying a section of Town Highway No. 5
from class 4 to class 3.  We affirm.
     Approximately twenty persons, including ten children, live in the five
full-time residences along the section of Town Highway No. 5 involved in
this case.  On no other class 4 highway in the Town are there as many
permanent residences.  The road is seasonably impassable and is gradually
deteriorating.
     Because of the state of the road, the residences do not have year-round
fire or police protection.  The school bus cannot go up the road so that one
disabled child, who lives on the road, must move elsewhere during the school
year in order to get to school.  The road section contains an old Town
cemetery, and from it there are attractive scenic views.
     On September 5, 1988, at least five per cent of the voters of the Town
filed a petition asking that a one mile section of Town Highway No. 5 be
reclassified from class 4 to class 3 so that it would be improved.  The
selectmen held a hearing on November 3, 1988 and on December 8, 1988 issued
a decision denying the petition.  The selectmen relied primarily on a
reclassification policy adopted by the selectmen in 1981.  That policy set
as minimum requirements for a reclassification to class 3 that:  (1)
property improvements on land abutting the road have a grand list value of
at least $200,000 per mile; (2) there be at least three year-round
residences on the road; and (3) the cost of upgrading the road to class 3
standards must be borne by the persons seeking reclassification.  The
selectmen found that the first and third requirements were not met since the
grand list value of the improvements was only $173,000 and the petitioners
were willing to pay only $5,000 of the $50,000 cost to improve the road.
They concluded that the "public good, necessity and convenience of the
inhabitants of the town" did not require a reclassification.
     The petitioners appealed to the Orleans Superior Court, which appointed
commissioners pursuant to 19 V.S.A. { 751.  After a hearing, the commis-
sioners issued a report supporting the decision of the selectmen.  They
found that the anticipated reappraised value of the buildings on the road
would be $207,000.  They also found that despite the presence of full-time
residences on the road, the road was often impassable at times.  They
found, however, that these residences were constructed after 1973 when roads
were classified in the Town and that the residents were unwilling to pay
for the full cost of upgrading the road.  Based on the 1981 policy and the
unwillingness of the residents to provide the $50,000 to upgrade the road,
they concluded that the public good, necessity and convenience of the
citizens of the Town did not require the reclassification.
     The petitioners then entreated the court to reject the commissioners'
report.  After taking evidence, the court did so.  It rejected the
applicability of the 1981 reclassification policy and the determinative
effect of the unwillingness of the petitioners to pay for upgrading the
road, concluding that "fifty thousand is a standard expenditure for this
town or any other small town in Vermont."  It concluded that the "public
good, necessity and convenience as demonstrated by the evidence and the
facts found in these cases do require the reclassification of this segment
from class 4 to class 3."  Acting pursuant to 19 V.S.A. { 302(a)(3)(C), the
court gave the selectmen five years to bring the road up to class 3
standards.  The court did not require the petitioners to pay any of the cost
of the upgrade.
     On appeal, the Town raises four arguments:  (1) the court had no
jurisdiction to reject the report of the commissioners; (2) the court erred
in ordering reclassification without a finding that the Town had employed
discriminatory standards; (3) the court erred in failing to apportion the
costs of the upgrade between the petitioners and the Town; and (4) the
finding that the $50,000 upgrade cost was a standard expenditure for the
Town was clearly erroneous.
     The Town's first argument is that the court could not reject the
commissioner's report.  Although the argument was not raised below, the Town
argues that the error is jurisdictional and can be raised for the first time
on appeal.
     The trial court's jurisdiction is based primarily on 19 V.S.A. {
310(b), which provides that reclassification is subject to the "same
procedures as for laying out highways."  See Gilbert v. Town of Brookfield,
134 Vt. 251, 251, 356 A.2d 524, 525 (1976) (jurisdiction in reclassification
appeal based on 19 V.S.A. { 931(2) (now { 310(b)).  That procedure includes
an appeal from the selectmen's decision to the superior court.  See 19
V.S.A. { 750.  The matter must be referred to three disinterested
commissioners "to inquire into the convenience and necessity" of the
proposal and report to the court.  See 19 V.S.A. {{ 753, 756.  On receiving
the report, the "court may accept or reject [it] . . . in whole or in part"
and render an order or decree with respect to the issue before it.  19
V.S.A. { 759.
     Although the statute clearly authorizes the court to reject the
commissioners' report in whole or in part, the Town argues that the
Legislature never intended to allow the court to reject a report that denies
a reclassification.  In making this argument, they rely primarily on
Shattuck v. Town of Waterville, 27 Vt. 600, 602 (1855) where Justice
Redfield held that another statute did not authorize the Supreme Court to
reject the report of a committee that a road going through two counties
should not be laid out absent a finding of "fraud or gross partiality."  The
wording of the statute involved in Shattuck allowed the Court to reject the
report of the committee in whole or in part.
     Since Shattuck, we have defined more clearly the role of the court and
the commissioners in road cases.  In Ferguson v. Town of Sheffield, 52 Vt.
77, 81 (1879), this Court defined the superior court's role in these cases
as follows:
         In so far as the courts have any duty or power devolved
         upon them in respect to laying out and discontinuing
         highways, it is derived from the statutes.  This duty
         and power is of such character that it should be
         performed and exercised in a practical manner, not by
         technical rules.  These highway petitions are, in view
         of the nature and purpose of the inquiry, addressed
         largely to the discretionary power of the court.  They
         are based on an alleged public as well as individual
         necessity and convenience.  They involve the imposition
         or relief of a public burden.

In Gray v. Middletown, 56 Vt. 53, 55 (1884), the Court concluded that a
"report of the commissioners is only prima facie evidence of the existence
of a legal necessity [f]or the establishment of the highway."  The Court
added, "The commissioners are but agents or officers of the court in
investigating the subject matter of the inquiry.  The court is not bound by
their action . . . ."  Id. at 57.  The Court stated in Bolles v. City of
Montpelier, 93 Vt. 513, 517, 108 A. 565, 567 (1920) that the issue is one of
fact "which in the last resort is to be determined exclusively by the county
court."  See also Pillsbury v. Town of Wheelock, 130 Vt. 242, 244, 290 A.2d 42, 44 (1972).
     With the adoption of the Vermont Rules of Civil Procedure, we have
employed the general term "master" to describe persons to whom a case is
referred to take evidence.  See V.R.C.P. 53(a).  In cases where a reference
is made pursuant to statute, the court must accept a master's findings of
fact unless clearly erroneous, V.R.C.P. 53(e)(2)(ii), and the court "may
adopt the report or may modify it or may reject it in whole or in part or
may receive further evidence or may recommit it with instructions."
V.R.C.P. 53(e)(2)(iii).  Nothing in the rule suggests that the court's power
to reject a master's report depends on the contents of the report.
     We believe that the limited standard of review of V.R.C.P. 53
addresses, in part, the major concern of the Court in Shattuck v. Town of
Waterville  that it was incapable of dealing with the factual issues if the
master's report failed to resolve them because it recommended no action.  As
to fact finding, it puts the court in an appellate role with respect to the
master.  In view of (a) the final authority of the court over the matter
before it, (b) the court's discretion in using its authority, and (c) the
lack of any suggestion in the statute that the court's power depends on
whether the commissioners recommend the proposed action, we conclude that
the court can reject a commissioners' report recommending that a road not be
reclassified.
     We also conclude that the court acted within its authority.  While the
ultimate question is one of fact, see Cerosimo v. Town of Townshend, 139 Vt.
594, 597, 431 A.2d 496, 498 (1981), there is no factual dispute in this
case.  The court's disagreement with the commissioners' report involved a
solely legal issue -- whether the Town's 1981 reclassification policy
controlled this petition.  The court did not inappropriately disregard the
commissioners' report.
     The Town's second argument is that the court could not order
reclassification of the road without a finding that the Town acted
discriminatorily or arbitrarily in refusing reclassification.  The argument
is based on Gilbert v. Town of Brookfield, 134 Vt. 251, 254, 356 A.2d 524,
525 (1976) and Catlin v. Town of Hartland, 138 Vt. 1, 2, 409 A.2d 596, 597
(1979) where this Court upheld reclassification orders based on superior
court findings of discriminatory application of town policy.  Neither case
suggests, however, that a finding of discrimination is a prerequisite to
reclassification by the superior court.  In fact, in Catlin, we noted that
an alternative ground for the trial court's decision was "compliance with
statutory standards for reclassification, even in the absence of
discrimination" and this alternative was sufficient to validate it.  138 Vt.
at 2, 409 A.2d  at 597.  Moreover, the Legislature responded to Gilbert and
Catlin by adding statutory language that a class 4 highway need not be
reclassified to class 3 "because there exists within a town one or more
class 3 highways with characteristics similar to the class 4 highway."  19
V.S.A. { 708(b), as added by 1979 No. 143 (adj. sess.), { 1 (adding 19
V.S.A. { 341(c), now recodified as { 708(b)).  The ground used in those
cases, and argued for here as a prerequisite, is no longer available as a
basis for reclassification.
     The standard applicable in road reclassification cases is whether "the
public good, necessity and convenience of the inhabitants of the
municipality require the highway to be . . . reclassified as claimed in the
petition."  19 V.S.A. { 710.  The trial court used this standard and
concluded that reclassification was required.  The Town has not attacked
that conclusion directly.  It is sufficient to support the order of the
court.
     We are sensitive to the concerns raised by amicus curiae Vermont League
of Cities and Towns that the selectmen are entrusted with the authority over
town roads, see 19 V.S.A. { 303 (town highways are under "the general
supervision and control of the selectmen of the town"), and we must minimize
the encroachment on this authority.  The statutes often give selectmen broad
authority to manage town affairs.  See, e.g., Kirchner v. Giebink, 150 Vt.
172, 175, 552 A.2d 372, 375 (1988).  In this area, however, the Legislature
has placed the selectmen in a quasi-judicial role to hear classification
petitions, with appellate jurisdiction over their actions in the superior
court.  See, e.g., Dunn v. Town of Pownal, 65 Vt. 116, 119-20, 26 A. 484,
485 (1893) ("in laying out, altering and discontinuing highways, the
functions of the selectmen are more than administrative; they are largely
judicial, and they proceed much after the manner of judicial bodies").  The
selectmen can adopt policies to determine their action, like the
reclassification policy involved in this case, but those policies do not
bind the superior court in exercising its discretionary power "in a
practical manner, [and] not by technical rules."  Ferguson v. Sheffield, 52
Vt. at 81.
     The Town's third argument is that the court erred in failing to order
apportionment of the costs of the upgrade of the road to class 3 standards.
The commissioners, and therefore the court, are authorized to require
petitioners who "will be especially benefited" to pay part of the costs of
road building which they order to be done.  19 V.S.A. { 755.  The Town
argues that such a payment order should have been made in this case.
     Whatever the merits of the Town's argument, we will not consider it
because it is raised for the first time on appeal.  See State v. Shure, 2
Vt. L.W. 138 (April 3, 1991).  Throughout the proceedings before the
commissioners and the superior court, the Town argued that reclassification
should not be ordered.  It never argued alternatively that the costs should
be apportioned.  While the record might show some of the persons who were
specially benefitted by the reclassification, there is no basis for
determining an appropriate apportionment of costs.  The issue has been
waived.
     The Town's final argument is that the finding that the expenditure of
$50,000 to upgrade the road is a standard expenditure for this town or other
small towns in Vermont is unsupported by any evidence and is clearly
erroneous.  The court's decision was made orally on the record and did not
distinguish clearly between findings of facts and conclusions of law.
Neither party asked for written findings.  See V.R.C.P. 52(a).
     The financial impact of the upgrade on the Town was clearly relevant to
the determination of the public good, necessity and convenience, and the
court had to consider it.  See Whitcomb v. Town of Springfield, 123 Vt. 395,
399, 189 A.2d 550, 553 (1963).  Although the Town has characterized the
court's assessment of financial impact as a finding of fact, it should be
viewed as a conclusion about the reasonableness of the expenditure for the
Town.  It reflected the balancing process that was at the heart of the
court's decision-making.  We find no error.
     Affirmed.

                                        FOR THE COURT:




                                        Associate Justice