Villeneuve v. Town of Essex

Villeneuve v. Town of Essex  (97-093); 167 Vt. 618; 713 A.2d 815

[Filed 18-Mar-1998]

                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 97-093

                             DECEMBER TERM, 1997


Richard Villeneuve, et al.	}	APPEALED FROM:
                            	}
                        	}
     v.	                        }	Chittenden Superior Court
                         	}	
Town of Essex	                }
	                        }	DOCKET NO. S1482-96CnC	


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

       Plaintiff, one of three landowners who petitioned defendant Town of
  Essex to repair the last  one-half mile of a town highway adjoining their
  land, appeals the superior court's dismissal of the  property owners'
  complaint alleging that the Town had failed to respond to their petition as 
  required under 19 V.S.A. § 971.  We reverse the dismissal and remand the
  matter for further  proceedings.

       On October 18, 1996, upon receiving the petition for repair of the
  highway, the Town's  Director of Public Works investigated the condition of
  the road and concluded that it was not in  need of repair, except for one
  location that had been disturbed by plaintiff's development of his 
  property.  Letters to that effect were personally served on the landowners
  within three days.  On  October 29, the landowners filed a complaint in
  superior court stating that the Town had not  responded to their petition
  within the time limits set forth in § 971 and requesting that the county 
  road commissioners examine the road, hold a hearing, and order the Town to
  make the necessary  repairs.

       The Town moved to dismiss the complaint, and the court granted the
  motion following a  hearing, ruling that it had no jurisdiction to
  adjudicate the dispute because the Town had responded  to the landowners'
  petition within seventy-two hours by sending them a letter refusing their
  request  to repair the road.  After the court rendered its decision, a
  county commissioner who attended the  hearing informed the court that he
  had received a letter from the attorney of one of the landowners  stating
  that the dispute should be considered by the road commissioners before
  being heard in  superior court.  The court responded that the letter had
  not been submitted into evidence and thus  could not be considered, and
  that, in any case, dismissal of the complaint filed in superior court  was
  not contrary to jurisdiction being vested with the road commissioners.

       On appeal, plaintiff does not dispute that the Town responded by
  letter to the petition within  the seventy-two-hour statutory period;
  rather, he argues that the superior court did not have subject  matter
  jurisdiction to hear the motion to dismiss because the complaint was
  pending before the  county road commissioners.  Further, he contends that §
  971 confers upon the road commissioners  authority to hear a complaint when
  the town has refused to make the requested repair, even if the  town timely
  informs the petitioners of its intention not to act.

       Under § 971, three citizens may notify town selectmen that a highway
  or bridge is out  of repair.

 

       If the town neglects for seventy-two hours to respond by either 
  denying the allegation or to commence work upon the highway or  bridge, or
  fails to continue the work in good faith . . ., the citizens  may file with
  one of the county road commissioners or the superior  court for the county
  in which the highway or bridge is situated, a  written complaint . . .
  setting forth . . . the nature of the  insufficiency.

       19 V.S.A. § 971.  The parties disagree about whether the statute
  authorizes the citizens to file a  complaint with the county road
  commissioners in the event that the town denies their allegation  within
  seventy-two hours.  The quoted sentence is ungrammatical and nonsensical as
  written.  We  can assume only that the Legislature either inadvertently
  omitted the word "failing" before the  infinitive "to commence" or intended
  to use the word "commencing" instead of "to commence."   Plaintiff suggests
  the former construction, arguing that the statute defines two ways in which
  the  town may neglect to respond, by either denying the petition or
  "failing" to commence repair work.  Thus, if the town denies a petition or
  fails to commence repairs, the statute permits the petitioning  citizens to
  file a complaint.  The Town argues, on the other hand, that the statute
  defines two ways  in which the town may respond within the statutory time
  period, by either denying the petition or  "commencing" repair work.  Under
  this interpretation, the citizens would be precluded from filing  a
  complaint if the town denied the petition within seventy-two hours.

       Upon consideration of the language of § 971 within the context of the
  entire statutory  scheme, we conclude that the superior court erred in
  dismissing plaintiff's complaint.  Under the  subchapter entitled
  "Enforcing Repairs," 19 V.S.A. §§ 970-979, if a town denies a request to
  repair  a road, the petitioning citizens may file a complaint with either
  the superior court or one of the  county road commissioners, who are
  appointed by the superior court.  See id. §§ 970-971.  In  either case, the
  complainants give the commissioners a security deposit for the cost of the 
  proceedings under the complaint.  See id. § 971.  After receiving the
  complaint and deposit, the  commissioners are required to examine the
  highway in question and conduct a hearing on the  matter.  See id. § 972. 
  Following the hearing, the commissioners must file a written report either 
  stating that the highway is not out of repair or ordering the town to make
  specified repairs.  See id.  §§ 973-974.  The report is final and
  conclusive unless the aggrieved party appeals to the superior  court within
  twenty-one days after the county clerk has filed the report and entered a
  judgment.   See id. §§ 974, 976.  If the report orders the town to make
  repairs and the town fails to complete  the repairs within the allotted
  amount of time, the commissioners must appoint an agent to spend  sums to
  make the repairs, and judgment in that amount will be entered against the
  town.  See id. §  975.

       It is plain from this statutory scheme that although the initial
  complaint may be filed either  with a single county road commissioner or
  the superior court, the road commissioners consider the  complaint in the
  first instance.  If the complaint is filed in the superior court, as
  opposed to with  one of the individual road commissioners, the superior
  court merely refers it to the county body it  appointed, which takes the
  security deposit, examines the road, holds a hearing, and files a report.  
  Only then, assuming there is an appeal, does the superior court adjudicate
  the dispute.

       Given this statutory scheme, aimed at allowing citizens to obtain
  county review of a town's  decision not to repair a road or bridge, the
  Town's interpretation of the statute -- that citizens are  precluded from
  direct review of a town's decision not to repair a road as long as the town
  sends a  letter within seventy-two hours denying the request for repairs --
  is neither

 

  reasonable nor required  by the plain meaning of the statutory language. 
  See In re R.S. Audley, Inc., 151 Vt. 513, 519,  562 A.2d 1046, 1049 (1989)
  (intent of statute should be gathered from consideration of every part  of
  statute, its subject matter, its effects and consequences, and reason and
  spirit of law); In re A.C.,  144 Vt. 37, 42, 470 A.2d 1191, 1194 (1984)
  (statute should not be construed so as to render it  ineffective or to lead
  to irrational consequences).  We are not persuaded that our construction of
  the  statute will result in an avalanche of meritless claims.  The statute
  itself provides a significant  safeguard -- citizens filing meritless
  complaints forfeit their security deposit.  See id. § 972.  Nor  are we
  persuaded that the Town's interpretation of the statute is reasonable
  because 19 V.S.A. §  991 allows a county grand jury to indict a town for
  failing to keep its roads or bridges in repair.   Assuming that § 991 would
  provide alternative relief to citizens in plaintiff's position, that
  statute  cannot act as a substitute for a reasonable interpretation of §
  971 in the context of its own  subchapter.  

       Nor do we agree with the Town that we can affirm the superior court's
  order because (1)  plaintiff failed to raise the issue of subject matter
  jurisdiction at the hearing on the Town's motion  to dismiss, (2) the
  complaint was not filed with the road commissioners, and (3) assuming
  plaintiff  is correct that the superior court lacked jurisdiction over the
  case, the court had the authority to  dismiss the matter for that very
  reason.  As noted, plaintiff petitioned Town to repair the highway  and
  Town refused.  Plaintiff then had the option of filing a complaint either
  with one of the road  commissioners or the superior court.  Plaintiff chose
  the latter course, and properly requested in the  complaint that the county
  road commissioners examine the road, conduct a hearing, and order the  Town
  to make all necessary repairs.  The superior court was made aware through
  both the  complaint and the road commissioner's comments at the hearing
  that plaintiff believed the road  commissioners should resolve the merits
  of the dispute in the first instance.  Instead of dismissing  the
  complaint, which was properly filed in the superior court, the court should
  have directed the  road commissioners to address the matter, as required by
  the statute.

       Reversed and remanded.


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                                 Dissenting



       AMESTOY, C.J., dissenting.   The majority has determined its view of
  what 19 V.S.A. §  971 should mean, but neither the plain language nor the
  history of the statute supports the inferred  construction.  Accordingly, I
  dissent.

       Since the late nineteenth century, Vermont has had in place a statute
  allowing three citizens  or taxpayers to petition town officials for repair
  of a highway or bridge.  In its earliest form, the  statute allowed the
  petitioning citizens to file a written complaint with the county road 
  commissioners "if such town neglects for thirty-six hours thereafter to
  commence work upon said  highway or bridge, or fails to continue such work
  in good faith and with reasonable dispatch until  such highway or bridge is
  put in good and sufficient repair."  1894 V.S. § 3478.  This language 
  remained virtually unchanged for the next one hundred years until the
  recodification of Title 19 in  1986, when the statute was amended to allow
  taxpayers to file a written complaint "[i]f the town  neglects for
  seventy-two hours to respond by either denying the allegation or to
  commence work  upon the highway or bridge, or fails to continue the work in
  good faith and with reasonable  dispatch until the highway or bridge is put
  in good and sufficient repair."  1985, No. 269 (Adj.  Sess.), § 971
  (emphasis added to new language).

       Apparently, in adding the new language, the Legislature inadvertently
  left the verb  "commence" in its infinitive form rather than changing it to
  its gerund form so that it would be in  agreement with the new sentence. 
  Notwithstanding this grammatical irregularity, the plain 

  

  meaning  of the amended statute -- the current version of § 971 -- is that
  citizens may file a written complaint  only if, within seventy-two hours of
  the filing of their petition, the town neither denies the  allegations in
  the petition nor commences repair work on the road or bridge.

       The majority asserts that because the subchapter entitled "Enforcing
  Repairs," 19 V.S.A. §§  970-979, provides for county review of a town's
  decision not to repair a road or bridge, it is  unreasonable to conclude
  that the Legislature intended § 971 to place limitations on a citizen's 
  capacity to escalate a road repair complaint into litigation.(FN1) While the
  best answer to the majority's  assertion is to examine the language of the
  statute, see State v. O'Neill, 165 Vt. 270, 275, 682 A.2d 943, 946 (1996),
  it is not difficult to discern why the Legislature amended § 971 to place 
  some restriction on when citizens would have a right to obtain county
  review of a town's  determination that a road or bridge was not in need of
  repair.  The influx of population to Vermont  in the 1970's and 1980's
  increased the request for town services, particularly with respect to the 
  condition of dirt roads, to which many new residents were unaccustomed. 
  The amendment to §  971 continued to require towns to look into and respond
  to petitions for road repair, but did not  compel towns officials to submit
  to legal proceedings every time a citizen challenged their  determination
  that a road was not in need of repair.  The accountability of local
  officials for  performance of official responsibilities may be secured as
  least as well -- and often better -- by the  electoral process as the
  judicial process, a fact of which the Legislature was fully cognizant when
  it  amended § 971.

       If that is not what the 1986 amendment of § 971 was intended to
  accomplish, then what was  its purpose?  Under the statute as it existed
  for over one hundred years, a complaint could be filed  if work was not
  commenced within a given time.  The majority's interpretation of the
  amended  version of § 971 is essentially the same, and thus renders the
  language added by the 1986  amendment entirely superfluous.  I do not
  believe that the Legislature added the new language to §  971 with no
  purpose in mind and without intending it to change the substance of the
  law.  See  Payea v. Howard Bank, 164 Vt. 106, 107, 663 A.2d 937, 938 (1995)
  (when construing statute, we  presume language is inserted advisedly; we
  will not construe statute in way that renders significant  part of it pure
  surplusage); Trombley v. Bellows Falls Union High Sch., 160 Vt. 101, 104,
  624 A.2d 857, 860 (1993) (same).

  

       I recognize that the new language in § 971 was inserted as part of the
  recodification of Title  19, and that caution is required before
  determining that changes made pursuant to a statutory  revision were
  intended to alter the substantive meaning of the revised provisions.  See
  Conn v.  Middlebury Union High Sch., 162 Vt. 498, 502, 648 A.2d 1385, 1388
  (1994); Town of  Cambridge v. Town of Underhill, 124 Vt. 237, 240, 204 A.2d 155, 157 (1964).  Nevertheless, the  recodification of Title 19 made
  numerous substantive changes to the law, see 1985, No. 269, § 1,  and we
  have not hesitated to find substantive changes when the language or
  circumstances of a  revision made it clear that such changes were intended. 
  See Miller v. Willimott, 123 Vt. 448, 452,  193 A.2d 917, 919 (1963)
  (action of Legislature in approving 1894 revision demonstrated clear 
  intent to change jurisdictional requirements for filing bastardy action). 
  Thus, to the extent that the  recodification of Title 19 may be considered
  a revision of the law, the new language added to § 971  was plainly
  intended to amend the substantive law of the statute.

       This Court's overriding objective is to construe the statute to
  implement the Legislature's  intent.  See Valley Realty & Dev., Inc. v.
  Town of Hartford, 165 Vt. 463, 466, 685 A.2d 292,  294 (1996).  Because we
  presume that the Legislature intended the plain, ordinary meaning of the 
  statutory language, it is not appropriate for this Court "to read into a
  statute something which is not  there unless it is necessary in order to
  make the statute effective."  O'Neill, 165 Vt. at 275, 682 A.2d  at 946
  (emphasis in original).  Yet the majority reads into § 971 its own
  determination of  what the Legislature should have done.  The
  interpretation is neither necessary to make the statute  effective nor
  consistent with the statute's plain meaning.  I am authorized to state that
  Justice  Dooley 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

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


       FN1.  No one has argued that § 971 would be unconstitutional if it did
  not provide complaining  citizens with a remedy for challenging a town's
  determination that a road or bridge was not in need  of repair.  See 17 E.
  McQuillin, Municipal Corporations § 49.02, at 176 (3d ed. 1993) (right of 
  action against municipal corporation is matter of legislative favor that
  may be withheld, granted  absolutely, or granted on condition; rights of
  action against municipality, when created by statute  prescribing method to
  be followed in obtaining relief, can be maintained only by bringing case in 
  manner set forth).  In any case, as the majority acknowledges, under 19
  V.S.A. § 991, a town that  fails to repair a highway or bridge may be
  indicted for neglect by a grand jury and fined.

       Further, a plain reading of § 971 would not render the subchapter's
  statutory scheme  superfluous, as the majority suggests; it would still
  permit complaints seeking county review if  towns refused in a timely
  manner to answer petitions regarding the need to repair roads or bridges. 
  Nothing in any of the provisions in the subchapter intimates that the
  procedures outlined therein  apply to complaints alleging that a town erred
  in concluding that a road or bridge was not in need  of repair.