2010 New Road 'Reclassification' Hearing As A Response To A First-Filed Notice of Road Insufficiency: Rule 75 Review in Demarest & Moulton v. Town of Underhill Vermont
The Vermont Supreme Court precedential interpretation of the definition of "altered" in the Ketchum v. Town of Dorset decision currently threatens the rightful access and reversionary rights of all Vermont landowners abutting current and former town highways if their land becomes coveted by officials within a local municipality.
Due to the irrational and nonsensically circular altered but not altered precedent set in Ketchum, Town of Underhill officials succeeded in their malicious goal based upon a Rule 75 review granting municipal defendants the discretion to create their own strategic narratives for the court to simply "review."
Most notably, ¶12 of Ketchum precedent,
"We find no merit to plaintiffs' argument that 'altered' includes reclassification." This is irreconcilable with both common sense and Federal jurisprudence.
Not all rural home owners are able to fight for their rights as long as Mr. Demarest did, but his plight in both State and Federal courts proves "right" has nothing to do with a legal process in which "Numerous portions of the legal record contained in preceding state litigation are so severely prejudiced by misconduct of Defendant Town of Underhill, and town officials presently sued in their individual capacity, so as to serve as little more than a very compelling reason to issue Declaratory relief involving the precedent Vermont courts set in Ketchum, since as was succinctly stated:
"The court's role is to determine if there is adequate evidence to support the selectboard's decision. The court reviews only the record below without new evidence. There is no fact-finding. It is an appellate-style review of an administrative decision."
(¶76 of Initial Pleadings, available on A-36 of Case 22-956 Appendix; quote is from prior administrative review appearing in exhibit on A-200).
The following records are provided purely in the interest of public awareness:
Selectboard Meeting Minutes from April 22, 2010 state in part:
"1. The reclassification was done properly the first time."
[But as a matter of law it was not, see Vermont Superior Court Ruling dated May 31, 2011, on Case 22-956 Appendix A-183, which Municipal Defendants' chose not to appeal.]
...
"4. The SB does not want to eliminate access of abutting landowners to their property."
[A statement in direct conflict with the malicious intention expressed in October 8, 2009 letter, and subsequent exercise of "discretion" granted themselves by an otherwise entirely unenforced town ordinance.]
Key historical details of the 2010 New Road 'Reclassification' include:
- The hearing was lead by Dan Steinbauer without properly sworn in testimony
- It was initiated purely by town officials in response to a First-Filed Notice of Insufficiency duly submitted in accordance with 19 V.S.A. § 971 by residents David Demarest, Jonathan Fuller, and Jeffrey Moulton (viewable on A-178 of Case #22-956 Appendix)
- The Road Commissioner Order involving the First-Filed case was fully in favor of petitioners (A-207 Case #22-956 Appendix)
- Under the Rule 75 standard of review, Vermont courts do not have jurisdiction to weigh the merits for or against a given selectboard decision, the only question is if a hearing had been held and "whether the materials described were placed before the selectboard and formed a basis for its decision."
Examples of Written Submissions Opposing and Supporting the 2010 'reclassification' of TH26:
David Parsons Demarest's Opposition
Former Town Official Stanton Hamlet 'Reclassification' Support
Jeffrey Todd Moulton's Opposition
Former Town Official Marcy Gibson 'Reclassification' Support
Former Town Official Rita St. Germain 'Reclassification' Support
( ≥ 5% of Underhill's voters) on April 29, 2010.
Vermont law as applied should not require all courts grant unbridled discretion to town officials on matters which may result in the Taking of one or more protected private property rights. Presently, "Both appellees and the Commissioners are bound to respect the Town’s discretion, and cannot “trump the selectboard’s decision through their own view of what the public requires.” Id. at 622, 795 A.2d at 1269."
Federal Civil Rights Takings claims should as of right require that the Court not pander to a town's strategic narratives or the precedential "altered" but "not altered" circular statutory construction of Vermont law.
Logically Full Faith and Credit shouldn't have been extended to a Municipal Defendant's own strategic narratives which a prior court was "bound to respect" but judicial notice should have been taken of past non-deferential factual findings and orders, such as the Defendants' claimed 2001 "reclassification" was invalid and the Report of County Road Commissioners fully in favor of petitioners (viewable beginning on A-202 of Appendix in Case 22-956).
Litigation in Turnbridge Vermont over a selectboard's efforts to prioritize public recreational interests above adversely impacted landowners' visions for their private property is something else Vermont landowners should be aware of.
Quest For Justice In Federal Courts
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