Munson v. City of S. Burlington

MUNSON_V_CITY_OF_S_BURLINGTON.93-444; 162 Vt. 506; 648 A.2d 867


[Filed 02-Sep-1994]

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, 109 State
Street, Montpelier, Vermont 05609-0801 of any errors in order that corrections
may be made before this opinion goes to press.


                                No. 93-444


Randall G. Munson                           Supreme Court
    
v.                                          On Appeal from
                                            Chittenden Superior Court
City of South Burlington,
Vermont and State of Vermont                May Term, 1994
Agency of Transportation

  
Alden T. Bryan, J. (trespass, misrepresentation, condemnation procedure and
inverse condemnation complaints)

Matthew I. Katz, J. (taxpayer challenge complaint)

Leslie C. Pratt, South Burlington, for plaintiff-appellant

Steven F. Stitzel of Stitzel & Page, P.C., Burlington, for defendant-          
appellee City of South Burlington

Jeffrey L. Amestoy, Attorney General, and Scott A. Whitted, Assistant         
Attorney General, Montpelier, for defendant-appellee State of Vermont



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


      JOHNSON, J.    Plaintiff sued to enjoin the City of South Burlington from
using land acquired by eminent domain for a highway project to provide a right-
of-way for bicycle paths.  The Chittenden Superior Court found that because the
City failed to follow the statutory procedure for condemnation of land for a
bicycle path, the City's condemnation of plaintiff's land for such a path was
invalid.  The court also ruled that (1) plaintiff was not entitled to equitable
relief even though the condemnation was invalid, (2) his property had not been
inversely condemned, and (3) he failed to prove a claim as a taxpayer that the
City lacked the authority to expend state funds on bicycle paths.  We reverse,
in part, concluding that the City validly condemned plaintiff's land; and, in 
all other respects, we affirm the decision of the trial court.

         In 1984 the City of South Burlington and the Vermont Agency of
Transportation (AOT) initiated a project to reconstruct a portion of Dorset



Street.  The project, approximately one mile in length, commenced at the
intersection of Dorset Street and Williston Road and extended south to the
intersection of Dorset Street and Kennedy Drive.  The final proposal included
plans for bicycle paths on both sides of Dorset Street, with the paths to run
between the travel lanes and the sidewalks.  Subsequently, the City Council
noticed and held a public hearing on the issue of "necessity," and found
necessity for the taking.

       Plaintiff owns property on the east side of Dorset Street containing two
buildings, one housing his construction business and the other an unrelated
retail business.  The City Council issued an order condemning a portion of
plaintiff's property for the Dorset Street project and awarded plaintiff $36,500
in damages.  Plaintiff accepted the award and did not appeal it.

       This dispute arose when the boundaries of the property were marked
for the commencement of construction in May 1991.  It was then that
plaintiff alleges he became aware that one of his buildings will stand
three feet closer to the right- of-way than was shown on the project map
given to him.  Both buildings are actually the same distance from the
right-of-way.  On the map, however, the buildings were not depicted as
being equidistant from the right-of-way.  Instead, one was shown as being
three feet farther back from the right-of-way than the other.  The result
is that both buildings will be set back twenty-two feet, rather than one
having a setback of twenty-five feet and the other a setback of twenty-two
feet, as the map showed.  It is undisputed, however, that the City took no
more land than was noticed. 

      Plaintiff argues that if he had known that the setback distance of the one
building would be twenty-two rather than twenty-five feet, he would have
challenged the necessity of the taking.  He also argues that the loss of the
three feet and resulting traffic flow problems will cause him damages in the
amount of two to three million dollars over the next ten years.  To obtain
relief, plaintiff commenced the present action on July 31, 1991, claiming (1)
that because of the City's misrepresentation of the setback distance, he was
entitled to equitable relief in the form of a twenty-five foot setback, (2) that



because the City had not complied with the applicable statutory procedure to
condemn land for a bicycle path, the condemnation of that land was invalid, (3)
as a taxpayer, that the City and State lacked legal authority to condemn the
land of plaintiff and others for a bicycle route making the condemnation void,
and (4) that he is entitled to damages because his land was inversely condemned.

         On cross-motions for summary judgment, the court ruled that the
condemnation process for the bike path land was void ab initio because the City
did not follow the proper statutory condemnation procedures.  It ruled in
defendants' favor on all other counts and denied plaintiff equitable relief.
Thus, the trial court concluded that plaintiff has title to the island of land
that was to be the bicycle path, but which is separated from the rest of his
land by the property condemned for the sidewalk.  Accordingly, it concluded that
plaintiff must refund to the City the money paid for the bicycle path land.  The
present cross-appeals followed. 

                                    I.

         The first issue we address is whether the City may use a portion of
land that it acquired for a highway under 19 V.S.A. chapter 7 to develop a
bicycle route.  Plaintiff argues, and the trial court found, that the taking,
insofar as it relates to the bicycle routes, was void ab initio because 19
V.S.A.  2307(b) required the City to follow the condemnation procedure set out
in 19 V.S.A. chapter 5 (governing highway condemnation by the State through the
AOT) rather than that in chapter 7 (governing highway condemnation by cities and
towns) to condemn land for a bicycle route.  We disagree. 

         Plaintiff's argument is founded on 19 V.S.A.  2307(b), which provided
that "[i]n the construction . . . of bicycle routes which involves the taking of
private lands, the legislative body of a municipality shall follow the
procedures outlined in 19 V.S.A. chapter 5 for the taking of private land for
highways."(FN1)  The plain meaning of this statute, plaintiff argues, is clear
 -- a municipality .must follow chapter 5 to condemn land for a bicycle route;
it is powerless to 



include bike paths within a highway condemnation under 19 V.S.A. ch. 7.
Plaintiff's argument fails because it is not consistent with the statutory
scheme at issue and could lead to absurd results. 

         It is a well-established canon of statutory construction that statutes
relating to the same subject matter should be construed together and read in
pari materia, if at all possible.  State v. Murray, 159 Vt. 198, 201, 617 A.2d 135, 137 (1992).  As we stated in In re Shepard, 155 Vt. 356, 584 A.2d 421
(1990), that rule applies with particular relevance to highway law: 

              The statutory scheme on highways is complex, con-
              stituting all of Title 19 as well as portions of other
              titles, with many interrelated provisions. . . .  [T]o
              effectuate the legislative intent we "look to the whole
              statute, the subject matter, its effects and conse-
              quences, and the reason and spirit of the law."  

Id. at 357-58, 584 A.2d  at 422 (citations omitted).  The provisions of 19 V.S.A.
chapter 7 and 19 V.S.A.  2307 can be construed in harmony with each other.  

         Chapter 7 grants municipalities broad powers to lay out highways and to
acquire the property required for their construction.  On the other hand, 19
V.S.A.  2307(b) relates, in relevant part, solely to "the construction of
bicycle routes which involves the taking of private lands . . . ."  Section
2307(b) does not refer to highway construction and does not purport to govern
the taking of private lands for highway purposes.  It applies where the
municipality seeks to construct a bicycle route only.  It also does not purport
to apply when a municipality seeks to construct a highway that incorporates a
bicycle route. This interpretation is supported by 19 V.S.A.  2304, which
provided in relevant part that "[b]icycle routes may be incorporated into
designs for the construction . . . of state and town highways."(FN2)

      Moreover, plaintiff's proposed interpretation has the potential to lead to
absurd results.  According to plaintiff, a municipality seeking to build a
highway, bicycle route, and sidewalks must follow two separate condemnation
procedures.  Aside from the duplication in effort and waste of resources
involved, the existence of simultaneous but independent procedures could lead to



inconsistent results.  For example, in this case, the municipality might have
found itself with a bicycle route without an expanded highway, or a highway and
sidewalks where each landowner retained the island of land that was to have been
the bicycle route.  We avoid interpretations of statutes that lead to absurd
results.  O'Brien v. Island Corp., 157 Vt. 135, 139, 596 A.2d 1295, 1297 (1991).

         Nonetheless, for two reasons, plaintiff argues that the Legislature
intended to create separate condemnation procedures.  First, plaintiff argues
that in 1974, the Legislature considered but rejected a section of a bill that
would have provided authority for municipalities to condemn land for bicycle
routes using chapter 7.  S-49,  2055, 1973 (Adj. Sess.).(FN3)  The trial court
agreed that the significance of the failure to enact that section of the bill
was that "the legislature in 1974 was clearly skeptical about granting
condemnation authority to municipalities for establishing bike paths."  This
inference is based on speculation, not on sound principles of construction. 
Rejection of an amendment alone does not intrinsically indicate legislative
opposition to the substance of the amendment.  For example, the Legislature
might just as well have believed that adoption of the amendment was unnecessary.
 See 2A Sutherland, Statutory Construction  48.18 (5th ed. 1992). 

         Second, plaintiff argues that the 1992 amendment to 19 V.S.A. 
2307(b), adding the language "or chapter 7," is dispositive of this case.  The
trial court interpreted the 1992 amendment as confirming plaintiff's position: 

              The legislature could just as easily have changed the
              section to provide for only chapter 7 procedures or
              stated that this change was a codification of existing
              law.  It did neither, which leads us to the conclusion
              that prior to the latest amendment, chapter 5 was the
              only proper procedure available to a town or city to
              condemn land for a bike path.

This reasoning is also speculative.  The question is what was the Legislature's
intent at the time it enacted the statute at issue in this case.  It is not
what 




a subsequent Legislature believed the earlier Legislature intended.  All that is
certain from the 1992 amendment is that the Legislature confirmed that after the
effective date of its enactment, multiple-use projects including a bicycle route
could be proposed under chapter 7.  There is no bar to amending a law to render
clearer and more certain something that was intended, but not unquestionably
expressed, in an earlier enactment.  See Caledonian-Record Publishing Co. v.
Walton, 154 Vt. 15, 25, 573 A.2d 296, 302 (1990) (sometimes a statute may be
amended to exclude possible grounds of misinterpretation).

         In sum, when reading the statutes in pari materia, it is entirely
consistent to construe  2307(b) to require that municipalities follow 19
V.S.A. chapter 5 when taking private lands solely for bicycle routes, but to
allow them to proceed under chapter 7 when the dominant purpose is the laying
out of a highway, even if a bicycle route is part of the overall project. 
Accordingly, the City proceeded properly under 19 V.S.A. chapter 7.  Summary
judgment in plaintiff's favor on this issue must be reversed.  Judgment should
be entered in defendants' favor and plaintiff should not be required to refund
to the City the money paid for the bicycle path land. 


                                    II.

         The second question we must address is whether plaintiff may challenge
the project's necessity, enjoin the project, and seek damages under 19 V.S.A.
 740, even though the time for such a challenge has run.  The trial court
found that plaintiff had an adequate legal remedy to challenge the amount of
damages under 19 V.S.A.  726.  We agree. 

         Pursuant to 19 V.S.A.  740, an aggrieved property owner who is dis-
satisfied with the way a highway is laid out, the necessity of the
condemnation, or the damages awarded may petition the superior court for
relief.  The petition must be brought within twenty days after the order of the
selectmen is recorded. 19 V.S.A.  740.  Plaintiff's argument is that the
twenty-day time limit should not apply in this case because of the City's
misrepresentation regarding the building setback distance.  Plaintiff argues
that the misrepresentation invalidated the notice he received and thus his
challenge should not be time- 



barred.(FN4)

         We affirm because even if plaintiff's allegations are taken as true,
plaintiff's  740 claim was not timely.  The trial court found that regardless
of the validity of the initial notice to plaintiff, plaintiff indisputably had
actual notice of the true boundaries of the taking and the setback in May 1991
when the construction markers were placed on his property.  Thus, the court
concluded that even if it applied a discovery rule to the limitation period,
plaintiff's petition under  740 would still be time-barred because it was not
filed until August of 1991.  Plaintiff has not challenged this conclusion. 

         In light of our conclusion that the condemnation is valid and no
longer subject to challenge, we need not reach plaintiff's contention that his
property was inversely condemned.  See Martin v. Port of Seattle, 391 P.2d 540,
542 n.1 (Wash. 1964) (inverse condemnation "is the popular description of an
action brought against a governmental entity having the power of eminent domain
to recover the value of property which has been appropriated in fact, but with
no formal exercise of the power").  Similarly, we need not reach plaintiff's
claim for trespass damages. 

                                   III.

         Finally, plaintiff appeals the summary judgment award to the City on
Plaintiff's taxpayer claim.  Plaintiff asserts that the expenditure of public
funds on the bicycle route was illegal because the City (1) failed to properly
condemn the land, and (2) failed to adhere to 19 V.S.A.  2304.  Given our
holding in part I, plaintiff's first ground is without merit.  We also conclude
that the trial court properly rejected plaintiff's second ground. 

   Section 2304 provided that "[b]icycle routes may be incorporated into
designs for the construction . . . of . . . highways when safe routes do not
exist along the proposed corridor and upon" specific findings regarding safety,
use, costs, and planning.  Plaintiff argues that under  2304, the AOT should
have made the required findings and that because such findings were not made,
the 



expenditure of funds on the bicycle route is illegal. 

         Contrary to plaintiff's contention,  2304 did not mandate that the
AOT make the required findings.  The statute was silent on this subject.  Given
that it was the municipality that sought to condemn land for this project, it
is logical to conclude that the municipality could make the necessary findings.
 In this case, though the findings were not necessarily in one single document,
they were made.  Particularly, the City Council found that the proposed designs
would improve traffic safety, that the bicycle routes would conform with and
support other planned improvements for the area, and that the potential for
bicycle use supported the inclusion of a bicycle route on each side of Dorset
Street. Accordingly, the trial court did not err in granting summary judgment
for the 
City.

     The trial court's order granting summary judgment to plaintiff on Count
III of his complaint is reversed, and judgment on this count is entered for
defendants; in all other respects, the decision of the trial court is affirmed.

                                   FOR THE COURT:



                                   _______________________________
                                   Associate Justice

--------------------------------------------------------------------------------
                            Footnotes

FN1.    This section has since been amended to provide that a municipality may
 follow the condemnation procedure established in either chapter 5 or chapter 7.
 1991, No. 175 (Adj. Sess.),   12 (eff. May 15, 1992). 



FN2.    Section 2304 was repealed in 1993.  1993, No. 61, {24 (eff. June 3, 
 1993).


FN3.    This section was deleted from the bill approved by the House, but it
 was included by mistake in the bill approved by the Senate.  The initial
 codification included this section.  Despite its publication, however,  2055
 is not valid because the Senate never approved it.  See Vt. Const. ch. II,  6
 ("no bill, resolution, or other thing, which shall have been passed by the
 [Senate or House of Representatives], shall have the effect of, or be declared
 to be, a law, without the concurrence of the other"). 

FN4.    Plaintiff also argues an estoppel theory.  This argument fails because
 we agree with the trial court's finding that plaintiff had an adequate legal
 remedy.