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Town of Underhill Prevails on Appeal in Highway Maintenance Dispute

In David Demarest, et al. v. Town of Underhill, 2016 VT 10 (January 15, 2016), the Vermont Supreme Court reversed the trial court’s decision requiring the Town of Underhill to maintain a Class IV highway.

Issue: A dispute arose between the Town of Underhill and several adjoining landowners to a 1.5 mile stretch of road called TH 26 concerning the extent of the Town’s responsibility to maintain the road. Specifically, the Appellees sought the repair of certain culverts and drainages as well as the repair and maintenance of the road’s surface. TH 26 is classified as a so-called “Class IV” highway. The Town argued that the decision to undertake repairs of a Class IV highway is completely discretionary pursuant to 19 V.S.A. § 310(b) and subject only to the application of each town’s own road maintenance policy.

Holding: The Court agreed with the Town of Underhill and reversed the trial court, as well as an earlier decision of the County Road Commission, which had required the Town to perform certain work to maintain segments of TH 26. The Court reasoned that in Vermont, a town’s duties with respect to road maintenance are entirely statutory and 19 V.S.A. § 310(b) grants towns discretion in determining whether to maintain and repair Class IV highways. Only when it can be proved that a town has acted in an arbitrary and discriminatory fashion can a citizen prevail in challenging a town’s decision. The Court found that the Town of Underhill had neither acted arbitrarily, nor in a discriminatory fashion in declining to perform certain road maintenance.

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