In re South Burlington-Shelburne Highway Project

Annotate this Case
In re South Burlington-Shelburne Highway Project (2002-071); 174 Vt. 604;
817 A.2d 49

[Filed 12-Dec-2002]

                                 ENTRY ORDER

                      SUPREME COURT DOCKET NO. 2002-071

                            SEPTEMBER TERM, 2002

In re South Burlington-Shelburne Highway Project  }  APPEALED FROM:
                                                  }  Chittenden Superior Court
                                                  }  DOCKET NO. S0492-00 CnC

                                                 Trial Judge: David A. Jenkins

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

  ¶   1.  Seven landowners (collectively "Landowners") appeal from the
  superior court's grant of a necessity petition for condemnation filed by
  the Vermont Agency of Transportation ("VTrans") to acquire additional land
  and land rights needed to widen and reconstruct a segment of U.S. Route 7
  passing through Shelburne and South Burlington.  Landowners claim that
  VTrans failed to comply with 19 V.S.A. § 33 and that the superior court
  failed to apply that statutory provision when considering VTrans's
  necessity petition. We find that VTrans was not required to adhere to the
  provisions of 19 V.S.A. § 33 before filing its necessity petition pursuant
  to 19 V.S.A. § 504 and, therefore, affirm.   

  ¶   2.  The underlying dispute in this appeal concerns VTrans's proposed
  project (the "Project") to reconstruct approximately 3.17 miles along U.S.
  Route7, beginning at the intersection of Webster Road in Shelburne and
  extending northward to the highway's intersection with Imperial Drive in
  South Burlington.  Route 7 is the primary north-south highway in western
  Vermont, running from Pownal to Burlington.  The highway is classified as a
  principal arterial highway, meaning that its primary function is to provide
  mobility through traffic, and its secondary, less significant function is
  to provide access to abutting property.  In its present state, the 3.17
  mile segment of Route 7 designated for reconstruction is a 
  highly-congested traffic area and portions are unsafe for pedestrian

  ¶   3.  On April 14, 2000, VTrans filed a necessity petition with the
  superior court for the condemnation of land and land rights needed to
  accomplish the Project.  See 19 V.S.A. § 504.  The petition named 100
  affected property owners, sixteen of whom objected to the petition. 
  Following a lengthy period of discovery, five days of hearings occurred in
  late July and early August 2001.  Based on these hearings, the superior
  court issued its findings of fact and conclusions of law on December 17,
  2001.  The court found that the Project "will be conducive to the better
  and safer flow 


  of traffic" and will create a "reasonably safe and efficient highway for at
  least the next 20 years."  The court determined that VTrans complied with
  the necessity petition requirements set forth in 19 V.S.A. § 506(a) and
  granted the petition, finding that VTrans was entitled to an order of
  necessity for the taking of title in fee or easements of approximately
  seven acres of property along Route 7 and that no other routes were
  preferable.  Seven landowners then appealed the order granting VTrans's
  necessity petition to this Court.  
  ¶   4.  Landowners now contend that the superior court improperly granted
  the necessity petition for condemnation because: (1) VTrans failed to
  adhere to the survey provisions of 19 V.S.A. § 33 when conducting its
  survey of the Route 7 segment designated for reconstruction; (2) a survey
  according to the requirements of § 33 is a prerequisite to the filing of a
  necessity petition for condemnation pursuant to 19 V.S.A. § 504; and (3)
  VTrans's failure to adhere to § 33 required the superior court to dismiss
  VTrans's necessity petition.  It is undisputed that VTrans did not follow
  the provisions of 19 V.S.A. § 33 in conducting its survey of the Route 7
  segment designated for reconstruction and condemnation.  However,
  Landowners' assertions concerning the consequences of that failure are

  ¶   5.  Landowners' claims on appeal require us to construe the relevant
  statutory sections of Title 19.  We must, therefore, determine whether
  VTrans was required to adhere to the survey procedures set forth in19
  V.S.A. § 33 before it filed its necessity petition for condemnation
  pursuant to 19 V.S.A. § 504.  Statutory interpretation is a question of
  law, thus our review is nondeferential and plenary.  State v. Koch, 169 Vt.
  109, 112, 730 A.2d 577, 580 (1999) (citation and quotation omitted).  Our
  primary objective in construing a statute is to effectuate the intent of
  the Legislature.  Okemo Mtn., Inc. v. Town of Ludlow, 171 Vt. 201, 210, 762 A.2d 1219, 1227 (2000).  In order to determine the Legislature's intent -
  the first step in our analysis - we initially look to the language of the
  statute itself.  In re Picket Fence Preview, __ Vt. __, __, 795 A.2d 1242,
  1244 (2002).  The Legislature is presumed to have intended the plain,
  ordinary meaning of the adopted statutory language.  Id. at __, 795 A.2d  at
  1245.  If the statute is unambiguous and the words have plain meaning, we
  accept and enforce that plain meaning as the intent of the Legislature, and
  our inquiry proceeds no further.  Town of Killington v. State, 172 Vt. 182,
  188, 776 A.2d 395, 400 (2001). 

  ¶   6.  The complex statutory scheme of Vermont's highway law, constituting
  all of Title 19, as well as portions of other titles, requires us to
  construe the statutory sections relevant to this appeal in the context of
  the highway law "as a whole, looking to the reason and spirit of the law
  and its consequences and effects to reach a fair and rational result."  In
  re Margaret Susan P., 169 Vt. 252, 262, 733 A.2d 38, 46 (1999).  Section 33
  of Title 19 and the provisions under chapter 5 of Title 19  governing
  condemnation can and should be construed in harmony with each other.  See
  Munson v. City of S. Burlington, 162 Vt. 506, 509, 648 A.2d 867, 869 (1994)
  ("statutes relating to the same subject matter should be construed together
  and read in pari materia if at all possible"); Davis v. Hunt, 167 Vt. 613,
  267, 704 A.2d 1166, 1169 (1997) (Court attempts to harmonize constituent
  parts when interpreting statute).  From the unambiguous language of Title
  19, we find that the survey provisions of § 33 are separate and distinct
  from those provisions controlling condemnation for 


  highway construction and modification set forth in 19 V.S.A. §§  501-519,
  and that adherence to § 33 is not a prerequisite to filing a necessity
  petition for condemnation.

  ¶   7.  Section 33 is contained within chapter 1 of Title 19.  Chapter 1,
  entitled "State Highway Law," creates VTrans along with the agency's
  corresponding powers and duties.  See 19 V.S.A. §§ 1-12(b).  Specifically,
  § 33 allows VTrans to authorize the survey or resurvey of existing state
  highways for the purpose of "verify[ing] the location and width of the
  existing right-of-way, easement, or fee title and to determine the extent
  of the interest of the public in the title."  Id. § 33(b).  This statutory
  section provides the procedures that VTrans must follow when electing to
  authorize a § 33 survey.  See id. § 33(b)-(g).  In addition, § 33 contains
  a compensation provision for landowners aggrieved by a survey conducted in
  accordance with its procedures, id. § 33(h), and is followed by a statutory
  provision allowing appeal from such a survey.  Id. § 34 (landowner
  dissatisfied with § 33 survey may appeal results of survey in superior

  ¶   8.  In contrast, §§  501-519 are contained within chapter 5 of Title
  19.  Chapter 5, entitled "Condemnation," outlines the procedures VTrans
  must follow when "the interest of the state requires . . . the agency to
  take any land or rights in land . . .  deemed necessary to lay out,
  relocate, alter, construct, reconstruct, maintain, repair, widen, grade, or
  improve any state highway including affected portions of town highways." 
  Id. § 502(a).  If VTrans desires to condemn land for the purpose of highway
  construction or modification, it must "cause the land to be acquired or
  affected to be surveyed."  Id. § 503.  Following that mandated survey, if
  the affected landowners do not stipulate to the necessity of the state's
  taking, see id. § 508, VTrans must petition a superior court for a hearing
  to determine the necessity of its proposed condemnation.  See id. § 504. 
  If that necessity petition is granted, aggrieved landowners can invoke the
  remedy provisions contained in chapter 5 governing appeal and compensation. 
  See id. §§ 510-514.

  ¶   9.     From the plain, unambiguous language of Title 19, it is clear
  that § 33 and the condemnation procedures set forth in chapter 5 do not
  share the same statutory purpose.  Section 33 establishes general highway
  law and does not purport to govern surveys related to the taking of private
  lands for highway modification through condemnation proceedings.  Instead,
  § 33 authorizes VTrans to proceed with a survey unrelated to highway
  construction or modification.  See id. § 33(b).  Additionally, the
  numerous, specific condemnation provisions set forth in chapter 5 do not
  relate back or refer to the survey procedures of § 33; VTrans is instead
  required to comply with the survey procedures of 19 V.S.A. §§  503-506 when
  attempting to obtain rights in privately owned land.  See e.g., id. §
  506(a) ("for the purposes of this section , 'survey' means a plan, profile
  or cross-section of the proposed project").  Accordingly, we must presume
  that the Legislature intended the statutory provisions of chapter 5 to
  control in condemnation proceedings.  See Paquette v. Paquette, 146 Vt. 83,
  86, 499 A.2d 23, 26 (1985) (when meaning of statute is plain on its face,
  statute must be enforced according to its terms).  Since there is no
  express link between the survey provisions of 19 V.S.A. § 33 and the
  requirements for filing a necessity petition set forth in 19 V.S.A. § 504,
  we will not adopt Landowners' proposed statutory interpretation. 

  ¶   10.   Furthermore, Landowners' proposed statutory interpretation would
  replace the specific compensation provisions adopted by the Legislature for
  condemnation proceedings with those found in 19 V.S.A. §§ 33-34, thus
  making aspects of chapter 5 superfluous.  We presume that legislative
  language is inserted advisedly and not intended to create surplusage. 
  Payea v. Howard Bank., 164 Vt. 106, 107, 663 A.2d 937, 938 (1995). 
  Therefore, we decline to construe Title 19 in this manner. 

  ¶   11.  Accordingly, Landowners' claims on appeal fail and the superior
  court's order granting VTrans's necessity petition must stand.  VTrans was
  not required to follow the survey procedures of 19 V.S.A. § 33 before
  filing its necessity petition for condemnation, and the superior court did
  not err by granting that necessity petition.  A finding of necessity for
  condemnation is a question of fact determined exclusively by the trial
  court.  Cersosimo v. Town of Townshend, 139 Vt. 594, 597, 431 A.2d 496, 498
  (1981).  We must accept the superior court's findings on necessity if they
  are supported "by any competent evidence," and we will uphold the court's
  decision absent an abuse of discretion.  Rossetti v. Chittenden County
  Transp. Auth., 165 Vt. 61, 67, 674 A.2d 1284, 1288 (1996).  We find no
  abuse of discretion and the court's order granting VTrans's necessity
  petition is fairly and reasonably supported by legitimate evidence.  See
  State Highway Bd. v. Hazen, 126 Vt. 46, 51, 221 A.2d 579, 583 (1966). 
  Therefore, the order granting the necessity petition must be affirmed.   



  Jeffrey L. Amestoy, Chief Justice

  John A. Dooley, Associate Justice

  James L. Morse, Associate Justice

  Denise R. Johnson, Associate Justice

  Marilyn S. Skoglund, Associate Justice

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.