In re Shepard

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, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.


                                No. 89-547


Neil & Barbara Shepard                       Supreme Court
Dorset Street Project
                                             On Appeal From
                                             Chittenden Superior Court

                                             September Term, 1990


Alden T. Bryan, J.

E. William Leckerling of Lisman & Lisman, Burlington, for plaintiffs-
  appellants

Steven F. Stitzel of McNeil & Murray, Burlington, for defendant-appellee


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


     MORSE, J.   Appellants Neil and Barbara Shepard appeal from a superior
court order upholding a determination of necessity to condemn their
property.  We affirm.
     The facts are not in dispute.  The City of South Burlington seeks to
reconstruct approximately one mile of Dorset Street between Williston Road
and Kennedy Drive.  This reconstruction (the Dorset Street project) will
widen Dorset Street to two northbound and two southbound traffic lanes
separated by a raised median strip.  The Shepards own an office building
located on the west side of Dorset Street.  The proposed median strip will
prevent vehicles from making left hand turns into or out of their property.
     The City commenced proceedings to lay out a public highway pursuant to
chapter 7 of title 19 and subsequently issued an order condemning a portion
of the Shepards' property abutting Dorset Street.  The Shepards petitioned
the superior court for relief from that order, 19 V.S.A. { 740, and the
superior court appointed three commissioners to hear evidence.  19 V.S.A. {
741.  The commissioners issued a report for review by the court, 19 V.S.A. {
742, upholding the necessity of condemnation.  However, before the superior
court took action on the commissioners' report, the Shepards moved to vacate
the City's initial condemnation order and to dismiss the superior court
action.  They maintained the superior court lacked subject matter
jurisdiction to hear the appeal because the Dorset Street project is a
"limited access facility," which can be initiated and created only by the
state transportation agency.  The court denied the Shepards' motion to
dismiss and issued a final order upholding the commissioners' determination
of necessity.  The Shepards appeal both actions.
     The Shepards contend that the superior court was wrong (1) in failing
to find as a matter of law that the Dorset Street project is a limited-
access facility, and (2) in holding that 19 V.S.A. { 1703 does not vest the
agency of transportation with exclusive authority for initiating and
creating limited-access facilities.  We affirm on the second issue, although
on somewhat different grounds than the court below, and therefore need not
reach the first issue.
     Under 19 V.S.A. { 1703, the agency of transportation
         with the approval of the governor, and when appropriate
         in cooperation with any federal, state, provincial or
         local agency . . . having authority to participate in
         the construction and maintenance of highways, may plan,
         designate, establish, construct, regulate, vacate,
         alter, improve, maintain and provide limited access
         facilities for public use wherever the agency, with the
         approval of the governor decides, that the protection of
         existing businesses or traffic conditions, present or
         future, will justify the special facilities.  However,
         within cities and villages that authority shall be
         subject to such municipal consent as may be provided by
         law.  Town highways may be designated as limited access
         using this title after approval of the selectmen.
         (Emphasis added.)

Focusing on the word "may," the court characterized the agency's role in the
process as "nonmandatory," i.e., contemplating that either the agency or a
municipality could initiate the process of designating a limited-access
facility and in any case giving the municipality the last word on the
subject.
     The court's conclusion is correct, but its approach is somewhat
oversimplified.  The statutory scheme on highways is complex, constituting
all of title 19 as well as portions of other titles, with many interrelated
provisions.  In this case, a single word, especially one as ubiquitous and
ill-defined as "may," is too fragile a base on which to build a statutory
analysis.  Rather, to effectuate the legislative intent we "look to the
whole statute, the subject matter, its effects and consequences, and the
reason and spirit of the law."  In re R.S. Audley, Inc., 151 Vt. 513, 517,
562 A.2d 1046, 1049 (1989).  In this case we construe the provisions on
limited-access facilities within the entire statutory scheme dealing with
highways.  See Blundon v. Town of Stamford, ___ Vt. ___, 576 A.2d 437, 439
(1990)(court must read statute sections "in context and the entired scheme
in pari materia").
     Highways bind localities into state and interstate communities.
Consequently, highway issues -- construction, maintenance, safety -- are
areas of mutual interest between state and local (and even federal)
governments.  Title 19 reflects those shared concerns by sharing
responsibilities: some expressly delegated to towns, some expressly reserved
for the state, some requiring dual action by both state and town.  See,
e.g., the provisions of chapter 3 on town highways: the state determines
which highways are class 1, 19 V.S.A. { 302(a)(1); the town, with state
approval, designates class 2 highways, 19 V.S.A. { 302(a)(2); and the town
determines which highways are class 4, 19 V.S.A. { 302(a)(4).
     Traditionally, towns have had considerable control over local highways.
However, with the increasing complexity of the highway network and the
advent of the interstate highway system, the legislature  -- motivated by
concerns about safety and highway efficiency, see State Highway Board v.
Jackson, 128 Vt. 17, 22, 258 A.2d 575, 579 (1969) -- adopted provisions for
the creation of limited-access highways.  At first the limited-access
provisions applied solely to roads in the interstate highway system.  1955,
No. 270, { 3.  That section was later repealed, 1967, No. 161, and the
limited-access provisions were no longer applicable solely to interstate
highways.  State Highway Board v. Jackson, 129 Vt. 288, 291-92, 276 A.2d,
620, 621-22 (1971)(construing predecessor statute, 19 V.S.A. { 1861a, to
apply to a major arterial highway comparable to, but not part, of the
interstate system).
     Throughout the evolution of the statutory scheme, the broad definition
of limited-access facility has remained the same.  In 19 V.S.A. { 1702, a
limited-access facility is defined as
          a highway or street over, from, or to which owners . . .
          of abutting land . . . have no right, or easement, or
          only a limited right, or easement, of access, light,
          air, or view by reason of the fact that their property
          abuts upon the limited access facility or for any other
          reason.

Interpreted literally, this definition could apply to virtually any highway
and, read in conjunction with 19 V.S.A. { 1703, gives the state, through the
agency of transportation, the capability to intervene in local highway
planning whenever appropriate.
     However, the sweeping scope of "limited access" also suggests that the
agency's participation should be optional rather than mandatory for each
highway project.  Requiring the agency to get involved in every project with
limited-access characteristics would be an inefficient use of resources,
going beyond the purposes of the limited-access scheme.  Nor would it be
reasonable to suppose the legislature intended to burden the towns with a
cumbersome state-coordinated approval process for every local highway
project with a median strip.  That interpretation would eviscerate the
towns' share of highway responsibility, rendering many other highway
provisions -- e.g., chapter 7 (laying out, discontinuing, and reclassifying
highways) -- not merely ineffective but virtually meaningless.  We decline
to construe the statutory scheme as mandating that all limited-access
facilities originate with or receive approval from the agency of
transportation.  See In re R.S. Audley, Inc., 151  Vt. at 517, 562 A.2d  at
1049 (statutes to be construed "so that they will neither be rendered
ineffective nor lead to irrational consequences"); see also Blundon v. Town
of Stamford, ___ Vt. at ___, 576 A.2d  at 439 ("'When two statutes deal with
the same subject matter and one is general and the other special, they must
be read together and harmonized if possible to give effect to a consistent
legislative policy.'")(quoting City of Rutland v. Keiffer, 124 Vt. 357, 363,
205 A.2d 400, 404 (1964)); State v. Foley, 140 Vt. 643, 646, 443 A.2d 452,
453 (1982)(presumption against implied repeal).


     Affirmed.

                                        FOR THE COURT:




                                        Associate Justice