Senate Transportation hears legal risks if bill grants towns explicit trail-maintenance authority

Members of the Senate Transportation Committee heard legal analysis April 22 on S.4, the bill that would address municipal authority over trails previously classified as town highways and the risks of clarifying or granting towns the right to maintain them.

The committee received the briefing from Tucker Anderson and Damian (Damien) Leonard of the Office of Legislative Council, who outlined the statutory history, ongoing litigation, and drafting options. "This is not a court and that we're not rendering decisions," said Tucker Anderson, Legislative Counsel. "We're going to give you the language of the law and then key you up for your policy decisions."

The memo summarized how trail-related provisions originated in Act 121 (1921), were recodified and altered in later statutes (including a 1967 change and Act 269 of 1986), and how the statutes use differing terms — for example, "liable" and "responsible" — without an explicit grant of authority to maintain trails in every relevant provision. Anderson told the committee that recodification in 1986 left ambiguities that have produced conflicting interpretations.

Damian Leonard, Legislative Council, said litigation is already pending in superior court over whether the General Assembly intended in 1986 to remove municipalities' authority to maintain trails. "There are cross motions for summary judgment filed and finished briefing them," Leonard said. "If the court finds that it was an attempt of the General Assembly in 1986 to take away that authority to maintain, . . . the landowner is entitled to compensation." He added that S.4, as drafted, does not provide a compensation mechanism if a court finds prior municipal authority was eliminated.

The council staff explained two competing statutory interpretations that the court must weigh: (1) the 1986 language reflects an affirmative decision to remove municipal authority to maintain trails, which would leave maintenance rights with landowners; or (2) the 1986 language was intended to limit municipal liability while leaving implied authority to maintain in place. Leonard emphasized that courts — not Legislative Council — must resolve that statutory construction. "If the plaintiffs prevail on the case, then passing S.4 as it's written right now would be you in a position where the law had taken a property right, and the towns would then need to compensate for that," he said.

Because the litigation outcome is unresolved, Legislative Council recommended drafting S.4 with contingency and process language rather than simply inserting an unconditional maintenance grant. Tucker Anderson and Leonard offered drafting options the committee could pursue: (a) a prospective clarification granting municipalities express authority for trails created after an effective date; (b) a contingency provision that, if a court determines municipalities lack the right, authorizes municipalities to acquire that right through existing condemnation procedures; or (c) adding an explicit compensation or condemnation process tailored to trails.

Counsel warned that condemnation proceedings are time-consuming, expensive and emotionally fraught and that existing statutory condemnation procedures do not clearly address trails. Leonard noted, "There is a procedure set up in statute for that, which would likely need to be updated because it doesn't deal with trails very clearly or well." The staff recommended considering whether to require towns to show necessity and other typical condemnation prerequisites if condemnation becomes required to secure maintenance rights.

Committee members asked practical drafting questions: whether clarifying maintenance would be retroactive, what "maintenance" should be defined to include, and how other statutes interact with trail law. Counsel answered that statutes generally operate prospectively and that a legislative clarification would not change the legal analysis of a case filed under existing law; instead, it could either clarify a previously existing right (if courts accept that interpretation) or it could create a new right that might trigger constitutional takings concerns and compensation obligations. Anderson explained, "If the court rules in favor of the towns, the language in S.4 becomes essentially a clarification. If the court rules in favor of the landowner, the language in S.4 becomes granting a new right."

The memo noted related statutory provisions that complicate the issue, including provisions that allow the Commissioner of Forests, Parks and Recreation to request that select boards reclassify or preserve access to highways that provide access to state forest lands; those provisions do not resolve the maintenance-authority question. Counsel also pointed to statutes that sanction removal of obstructions and permit recovery of repair costs (cited in the briefing as 19 V.S.A. §1105 and related sections), which the parties interpret differently regarding whether they imply a municipal right to repair.

Committee members said timing matters. Several members observed that moving S.4 now could have limited near-term effect because the bill, if advanced, would likely wait for House committee review after crossover; counsel agreed timing influences whether to finalize complex, contingency-heavy statutory language during the current session. Staff promised to provide written materials, scans of historical acts, and answers to follow-up drafting questions.

No formal action was taken; the committee closed the briefing by asking Legislative Council to produce draft language options and additional answers to technical questions. The chair and members signaled they want more time to weigh the policy trade-offs and potential fiscal exposure before deciding whether to advance S.4.