The statutorily prescribed process for changing a town highway is the same whether it’s being thrown up (discontinued), laid out (i.e. widen, relocate, etc.), altered, or reclassified (downgrading or upgrading).
The selectboard may initiate these proceedings on its own motion or upon receipt of a petition signed by voters or landowners whose number is at least five percent of the voters. The procedure for each is roughly the same regardless of the class of road or its current use, and is detailed in 19 V.S.A. §§ 701 et seq. The town must precisely follow these procedures or risk an ineffective reclassification, laying out, or discontinuance. In re Bill (97-203); 168 Vt. 439; 724 A.2d 444. This is why we strongly recommend that you work with your town attorney on any highway reclassification, laying out, or discontinuation.
Highway Reclassification
The process begins with the selectboard appointing a time and date for examining the subject premises (site visit) and for hearing interested persons. The selectboard must give 30 days’ notice to persons owning or interested in lands through which the highway passes or abuts. That notice must be given by certified mail to the interested person’s official residence and must include when the selectboard will inspect the site and when it will receive testimony. Notice must also be given to the town’s planning commission, a copy posted in the town clerk’s office, and it must also be published in a local newspaper of general circulation not less than 10 days before the hearing. 19 V.S.A. § 709.
Following the inspection and hearing, the selectboard must make a decision based on whether “the public good, necessity and convenience of the inhabitants of the municipality” require the highway, or bridge, or highway and bridge, to be altered. If so the selectboard must cause the highway to be surveyed in accordance with 19 V.S.A. § 33 if the highway right-of-way cannot be determined, suitable monuments must be placed to properly mark its bounds. If private property is taken, the affected landowner may be entitled to damages as determined by the selectboard, which would need to be paid prior to the opening of the highway. 19 V.S.A. § 712. Within 60 days after the examination and hearing, the selectboard must return the original petition (again, the process was initiated by the voters), the action being taken (laying out, reclassifying, throwing up, etc); written description of the highway (refer to the survey plat, if any); identification of affected land holders; manner of notification to interested parties; amount of compensation to be paid (if any); and deadline by which obstacles must be removed (if any).to the town clerk’s office for recording. 19 V.S.A. § 711.
Necessity
The word “necessity” is defined in 19 V.S.A. § 501(1) to mean “a reasonable need which considers the greatest public good and the least inconvenience and expense to the condemning party and to the property owner. Necessity shall not be measured merely by expense or convenience to the condemning party. Necessity includes a reasonable need for the highway project in general as well as a reasonable need to take a particular property and to take it to the extent proposed.” When determining “necessity” the selectboard must give consideration to all of the following factors:
- adequacy of other property and locations;
- quantity, kind, and extent of cultivated and agricultural land which may be taken or rendered unfit for use, immediately and over the long term, by the proposed taking;
- effect upon home and homestead rights and the convenience of the owner of the land;
- effect of the highway upon the scenic and recreational values of the highway;
- need to accommodate present and future utility installations within the highway corridor;
- need to mitigate the environmental impacts of highway construction; and
- effect upon town grand lists and revenues.
Appeal
A person owning or interested in lands through which the highway is laid out, altered, or resurveyed may appeal the selectboard’s action to superior court. 19 V.S.A. § 740.
It’s very important that municipalities follow this statutorily prescribed process closely as failure to do so can result in an ineffective alteration, reclassification, laying out or discontinuance. This was exactly what happened in the VT Supreme Court case of In re Ruth Bill, 168 Vt. 439 (1998) in which the Court held that a highway in the Tonw of New Haven still existed because its selectboard failed, all the way back in 1926, to follow the proper procedure for discontinuing a highway extending through two or more towns.
VLCT’s Municipal Assistance Center (MAC) has developed a Highway Reclassification Worksheet to aid your selectboard in its compliance efforts by helping walk it through this complex process.
Please contact MAC if you have any questions regarding this resource.
