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Testimony by Kail Romanoff to the House Transportation Committee Regarding Trails Language in H.488, 5/15/25

Member for

2 years 7 months
Submitted by iminot@vlct.org on
photo of a footpath through woods

Testimony to the House Committee on Transportation
Attn: Chair Matt Walker
Re: VLCT Testimony on trails language in H.488 and the risk it may pose to municipalities if the Tunbridge case is resolved in favor of the landowner
May 15, 2025

Dear Chair,

First, I want to thank the committee for having me, my name is Kail Romanoff and I am an attorney with VLCT’s Municipal Assistance Center where myself and 3 other attorneys help municipal officials by answering their questions concerning general municipal law and local government management and administration and how to apply legal requirements to day-to-day governance and operations including on issues related to highways, trails, and public rights of way.  You’ve heard from my colleague Josh and previous witnesses about some of the policy reasons in favor of the trails language, but I want to address the elephant in the room a little – the threat of an inverse condemnation or takings as a result of this bill if the petitioner in Tunbridge is successful.  Myself and my fellow attorneys in MAC don’t think the risk of a takings claim against a municipality is very high if the trails language is included in S.123 is passed. We think that for a couple reasons.

First, it has been the generally accepted legal interpretation that towns have the right to maintain their legal trails. The petitioner in the Tunbridge case highlights that there is no explicit municipal authority for the maintenance of legal trails in Vermont Statute which has brought this bill before us today. However, Dillon’s Rule, which guides the scope of municipal authority, is not so rigid as to require the Legislature to explicitly spell out each and every possible authority, and it accounts for additional functions that may be “incident, subordinate[,] or necessary to the exercise” of those explicit authorities (Hinesburg Sand & Gravel Co. v. Town of Hinesburg, 135 Vt. 484, 486, 380 A.2d 64, 66 (1977)). Maintenance authority for legal trails is clearly implied or incident to multiple explicit grants of authority related to legal trails:

  • Legal trails are public rights-of-way. The law does not define public right-of-way for us, so we look to the common meaning. According to Black’s law dictionary, 5th Ed., a “public right-of-way” is defined as “[t]he right of passage held by the public in general to travel on roads, freeways, and other thoroughfares.” This is akin to an easement in the traditional sense for ingress and egress and maintenance rights are necessary to preserve the intended use of the easement under common law. The holder of a dominant estate in an easement, though, is generally entitled to use an easement “in a manner that is reasonably necessary for the convenient enjoyment of the servitude.” Rowe, 2006 VT 47, ¶ 23, 904 A.2d 78 (quoting Restatement (Third) of Property, Servitudes § 4.10 (2000). As a public right-of-way, it is implied that the holder of the dominant estate (the easement holder, or in this case the town) has the authority to maintain it for its designated public use whatever it may be.
  • There is explicit statutory authority as well, which I believe has been covered by some of the other witnesses. First, the legislature has conferred on town’s the authority to regulate the use of its legal trails.  19 V.S.A. § 304(a)(5), “Duties of selectboard [regarding highways and trails] . . . (5) Grant permission to enclose pent roads and trails by the owner of the land during any part of the year, by erecting stiles, unlocked gates, and bars in the places designated and to make regulations governing the use of pent roads and trails and to establish penalties not to exceed $50.00, for noncompliance.” (Emphasis added). This authority has been repeatedly recognized by the legislature toallow municipalities to open legal trails to all-terrain vehicles (ATVs)(23 V.S.A. § 3506(b)(4)), snowmobiles (23 V.S.A. § 3206(6)) and electronic bikes (23 V.S.A. § 1136a(e)(4)). If you can regulate the use of trails, it is necessary to be able to maintain them for those uses.  In contrast, if towns open their trails to use by ATVs, snowmobiles, and others, that authority would be effectively useless if they could not also maintain them when they fall into disrepair.  If that were the case, municipal regulatory authority on trails would be illusory once the trail is no longer passable.
  • The legislature also conferred the authority to lay out new legal trials for both access or recreational use. See 19 V.S.A. § 301(8)(B). “Trail” means a public right-of-way that is not a highway and that: . . . (B) a new public right-of-way laid out as a trail by the selectmen for the purpose of providing access to abutting properties or for recreational use. Nothing in this section shall be deemed to independently authorize the condemnation of land for recreational purposes or to affect the authority of selectmen to reasonably regulate the uses of recreational trails.”  If you can lay out new trails for recreation, then it is necessary to be able to maintain them for that use or the authority again is illusory.

We think maintenance is an implied authority to each of these express grants of authority. Moreover, the legislature has expressly exempted towns from liability for maintenance of their trails. 19 V.S.A. § 310(c), “A town shall not be liable for construction, maintenance, repair, or safety of trails.” Why would the legislature need to exempt a town from liability for maintenance of its trails if they are not authorized to perform that maintenance? 

VLCT’s legal opinion is that the authority to maintain exists currently and these changes will add clarity to the existing interpretation and general practice that town’s can maintain their legal trails for their intended uses and they will provide the certainty municipalities and recreation groups are seeking at this moment.

Secondly, even if the court sides with the petitioner and rules landowners who hold an interest in the underlying property (abutters) have the exclusive right to maintain legal trails despite their public status, it’s not clear that municipalities that rely on these proposed provisions would be subject to a Takings claim for their maintenance. legal trails are either a downgraded former town highway or a trail laid out by the selectboard.  In either case, the town has condemnation authority and there is a damages and appeal process for impacted landowners through the process of laying out new highways. 19 V.S.A. §§ 708 et seq. If there is a legal trail running through or abutting a property, the landowner or a predecessor in interest either assented to or was compensated for the public right-of-way during the process of laying out the trail or the highway that preceded it. Any case involving a town performing maintenance in the right of way of a legal trail then will focus solely on the damages caused by the maintenance (the singular stick of rights at issue here) and not the use because the town retains that right within their public right of way. 

The purpose of the Takings Clause is “to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” Armstrong v. United States, 364 U.S. 40, 49, 80 S.Ct. 1563, 4 L.Ed.2d 1554 (1960). It’s unclear, if the petitioner is successful, whether a municipality improperly maintaining its legal trails is forcing the landowner who holds an underlying interest in the right-of-way to bear any burden since this is a public right-of-way to which the landowner has been compensated or otherwise assented. The determination of burden of course would depend on the level of maintenance. For general trail work this is unlikely to be significant and may be resolved with an injunction commanding the municipality to stop maintenance rather than a takings proceeding.  Larger maintenance projects such as road building are more likely to represent a burden. The Vermont Supreme Court, has repeatedly ruled that speculative damages are not compensable in inverse condemnation cases. In re South Burlington/Shelburne Highway, 184 Vt. 553 (2008).

I think a bigger concern is that, if this language is not added, and the petitioner in Tunbridge is successful, Towns are likely to utilize the highway reclassification process to either upgrade trails to class 4 highways, or to discontinue them altogether, because without maintenance authority what is a public right of way?  It’s just lines on a map.   

 

Kail Romanoff, Esq.
Staff Attorney I, Municipal Assistance Center, Vermont League of Cities and Towns

 

Attachments
Letter that was the basis of Kail Romanoff's testimony

Testimony to the House Transportation Committee Regarding Trails Language in H.488, 5/9/25

Member for

2 years 7 months
Submitted by iminot@vlct.org on
A two-track trail in wooded area

Testimony to the House Committee on Transportation
Attn: Chair Matt Walker
Re: VLCT Testimony on trails language in H.488 and the risk it may pose to municipalities if the Tunbridge case is resolved in favor of the landowner.
May 9, 2025

Dear Chair,

If the trails language included in H.488 is passed, VLCT’s Municipal Assistance Center (MAC) attorneys don’t think the threat of a takings claim against a municipality is very high for a couple reasons.

First, it has been the generally accepted legal interpretation that towns have the right to maintain their legal trails. The petitioner in the Tunbridge case highlights that there is no explicit municipal authority for the maintenance of legal trails in Vermont Statute. However, Dillon’s Rule, which guides the scope of municipal authority, is not so rigid as to require the Legislature to explicitly spell out each and every possible authority, and it accounts for additional functions that may be “incident, subordinate[,] or necessary to the exercise” of those explicit authorities (Hinesburg Sand & Gravel Co. v. Town of Hinesburg, 135 Vt. 484, 486, 380 A.2d 64, 66 (1977)). Maintenance authority for legal trails is clearly implied or incident to multiple explicit grants of authority related to legal trails:

  • Legal trails are public rights-of-way, and maintenance rights are necessary to preserve e intended use of the easement under common law. The holder of a dominant estate in an easement, though, is entitled to use an easement “in a manner that is reasonably necessary for the convenient enjoyment of the servitude.” As a public right-of-way, it is implied that the holder of the dominant estate (easement holder, e.g., the town) has the authority maintain it for its designated public use.
  • Authority to regulate the use of its legal trails. 19 V.S.A. § 304(a)(5), “Duties of selectboard . . . (5) Grant permission to enclose pent roads and trails by the owner of the land during any part of the year, by erecting stiles, unlocked gates, and bars in the places designated and to make regulations governing the use of pent roads and trails and to establish penalties not to exceed $50.00, for noncompliance.” (Emphasis added). If you can regulate the use of trails, it is necessary to be able to maintain them for that use.
  • Authority to lay out new legal trials for access or recreational use. 19 V.S.A. § 301(8)(B). “Trail” means a public right-of-way that is not a highway and that: . . . (B) a new public right-of-way laid out as a trail by the selectmen for the purpose of providing access to abutting properties or for recreational use. Nothing in this section shall be deemed to independently authorize the condemnation of land for recreational purposes or to affect the authority of selectmen to reasonably regulate the uses of recreational trails.” If you can lay out new trails for recreation, then it is necessary to be able to maintain them for that use.

VLCT’s legal opinion is that these changes will add clarity to the existing interpretation and general practice rather than cause a potential liability risk for our members.

Secondly, even if the court sides with the petitioner and rules landowners who hold an interest in the underlying property (abutters) have the exclusive right to maintain legal trails despite their public status, it’s not clear that municipalities that rely on these proposed provisions would be subject to a Takings claim for their maintenence. The purpose of the Takings Clause is “to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” Armstrong v. United States, 364 U.S. 40, 49, 80 S.Ct. 1563, 4 L.Ed.2d 1554 (1960). It’s unclear whether a municipality improperly maintaining their legal trails is forcing the landowner who holds an underlying interest in the right-of-way to bear any burden since this is a public right-of-way.

Moreover, legal trails are either a downgraded former town highway or a recreational trail laid out by the selectboard. For each, the town has condemnation authority and there is a damages and appeal process for impacted landowners. 19 V.S.A. §§ 708 et seq. The landowners either assented to the public right-of-way or were compensated for it in the process of laying out the trail or the highway that preceded it. Any case involving a town performing maintenance in the right of way of a legal trail then will focus only on the damages caused by the maintenance and not the use because the town retains that right in their public right of way. For general trail work this is unlikely to be significant and may resolve with a simple injunction commanding the municipality to stop maintenance.

Kail Romanoff, Esq.
Staff Attorney I, VLCT Municipal Assistance Center

Attachments
Letter to House Committeee on Transportation from Kail Romanoff

Effective BCA Property Tax Assessment Appeal Hearings - Recordings and Resources

Vermont property owners not satisfied with the assessed value of their properties may request a grievance hearing with the board of listers and may further appeal the listers’ decision to the town’s Board of Civil Authority (BCA). This training reviews the fundamental concepts of property tax assessment as well as the legal requirements and best practices for lister grievance and BCA appeal hearings. A mock BCA hearing provides legal requirements, best practices in action and possible scenarios.

Is the Board of Auditors an Advisory or Non-Advisory Public Body for Purposes of Vermont’s Open Meeting Law?

May 07, 2025

Vermont’s Open Meeting Law (1 V.S.A. §§ 310-314) provides that “[a]ll meetings of a public body are declared to be open to the public at all times, except as provided in section 313 of this title [on executive sessions].” 1 V.S.A. § 312(a). The intent of the law is to create transparency in government by requiring advance public notice and an opportunity for public participation in governmental decisions. The law applies to every “public body” of a municipality. A public body is any board, council, commission, committee, or subcommittee of a municipality, which includes the Board of Auditors. 1 V.S.A. § 310(4).  
 

The Distinction Between Advisory and Non-Advisory Public Bodies

With the passage of Act 133 in 2024, the law now draws a distinction between advisory and non-advisory (decision making) public bodies by imposing stricter requirements on the latter. The law defines an “advisory body” as a “public body that does not have supervision, control, or jurisdiction over legislative, quasi-judicial, tax, or budgetary matters.” 1 V.S.A. § 310(1). Though not explicitly defined by the law, a “non-advisory body” is a decision-making body, one that does have supervision, control, or jurisdiction over legislative, quasi-judicial, tax, or budgetary matters. An advisory body, by its very name, advises, which means that it lacks final statutory decision-making authority. If a body has final decision-making authority over any legislative, quasi-judicial, tax, or budgetary matter then it is categorically not an advisory body, which makes it, in turn, a decision-making body.  

The elected Board of Auditors plays an important role in preserving the democratic nature of Vermont’s local government by ensuring that local officials are accountable for their expenditures of taxpayers’ money. It is the auditors’ job to review the accounts of local officials and report their findings directly to the taxpayers for review. VLCT’s Municipal Assistance Center (MAC) considers a Board of Auditors to be a “non-advisory” body because, whether they exercise it or not, the auditors also have final statutory decision-making authority over the selectboard’s compensation. “When a town does not fix the amount of the compensation to be paid such officers and town employees, the selectboard shall fix and determine the same except as to their own pay which shall be fixed by the auditors at the time of the annual town audit…” 24 V.S.A. § 933. 

In contrast to advisory bodies, non-advisory bodies, such as the Board of Auditors, must electronically record their meetings and post the recordings in a designated electronic location for a minimum of 30 days following the approval and posting of the official minutes of the meeting that was recorded. They also must hold their meetings at a staffed, physical location, with the exception of emergency meetings or meetings held during a local incident or state of emergency, all of which may be held entirely remotely. Please see our 2024 Open Meeting Law Changes Act 133 FAQs for more information about the differences between advisory and non-advisory bodies. 
 

Some Meetings of the Board of Auditors Are Exempted

Not all meetings of the Board of Auditors though are open to the public. The Open Meeting Law does not apply to “[r]outine, day-to-day administrative matters that do not require action by the public body.” 1 V.S.A. § 312(g). Although not further defined in statute, “routine administrative matters” would seem to include activities such as reviewing financial statements and collecting information from other town officers. Actions and discussions that fall within 1 V.S.A. § 312(g) are not “meetings" under the Open Meeting Law, even if two or more of the elected auditors are present or participating. Therefore, if the elected auditors choose not to do their work individually, they may legally work in groups of two or three to conduct these activities and may do so outside of a publicly warned meeting.   

Be aware that not all of the auditors' activities will fall under this exception to the Open Meeting Law. The exception only applies to matters that “do not require action by the public body.” 1 V.S.A. § 312(g). As such, the exception does not apply to official actions that the auditors are required to take by statute. Examples of such official actions include adoption of the audit report and the meeting to “examine and adjust the accounts of all town officers" that is required by 24 V.S.A. § 1681. These official actions may only be taken within the context of a duly warned open meeting that meets all of the requirements of the Open Meeting Law.  

If the town has voted to eliminate the office of elected auditor and has hired a public accountant, the public accountant is not subject to the Open Meeting Law. 

Maintaining Town Roads from Winter Snow to Spring Mud

March 13, 2025

March can bring both snow and mud to town roads. VLCT has several resources to help with maintenance during this transitional time.  
 

Which Town Roads Must Be Plowed? 

Whether a town road must be plowed depends upon its classification. A town must keep its class 1 highways “in good and sufficient repair during all seasons of the year.” 19 V.S.A. § 310(a). Accordingly, class 1 highways must be plowed and maintained through the winter. 

On the other hand, a town may maintain its class 4 highways “to the extent required by the necessity of the town [or] the public good and the convenience of the inhabitants of the town.” 19 V.S.A. § 310(b). As such, a selectboard may decide which, if any, of the town’s class 4 roads will be plowed during the winter. We recommend adopting a class 4 road policy that lists which, if any, class 4 roads will be plowed in the winter. See our Model Class 4 Highway Policy. 

When it comes to the town’s class 2 and class 3 highways, the selectboard has some discretion over whether to provide winter maintenance in some cases. However, exercising this discretion must be based upon “safety considerations for the traveling public and municipal employees.” 19 V.S.A. §§ 302(a)(3)(B), 310(a). The process for making this decision is prescribed by state law, which we explain in detail in our Limiting Winter Town Highway Maintenance resource. 
 

When Can We Limit the Use of Town Roads Due to Mud or Other Reasons? 

Vermont law allows selectboards to restrict the use of a town highway or even close that highway for a period when necessity demands. Selectboards frequently use this authority to prevent damage that might otherwise occur during mud season. This authority is not seasonal, however; the selectboard may restrict or close a highway at any time when conditions are such that the traveling public, or the highway itself, might suffer harm caused by vehicles. 

See our Restricting Use of Town Highways resource for more information. 

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