In re Highway Project Bennington Bypass South NH F019-1 (4) and Bennington Bypass North NH F019-1 (5), No. 101-3-06 Bncv (Wesley, J., Aug. 10, 2006) [The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the accompanying data included in the Vermont trial court opinion database is not guaranteed.] STATE OF VERMONT BENNINGTON SUPERIOR COURT BENNINGTON COUNTY, ss. DOCKET NO. 101-3-06 Bncv In re Highway Project Bennington ) Bypass South NH F019-1 (4) ) and Bennington Bypass North ) NH F019-1 (5) ) FINDINGS OF FACT , CONCLUSIONS OF LAW, AND JUDGMENT ORDER The above matter came on for hearing before the Bennington Superior Court, the Honorable John P. Wesley, Presiding Judge, on May 10 and June 29, 2006 pursuant to a necessity petition filed by the Vermont Agency of Transportation (“VTrans) under 19 V.S.A. Chapters 5 (Condemnation) and 17 (Limited Access Facilities). The purpose of the hearing was to determine the necessity of the State of Vermont’s acquisition of certain lands and rights in land in connection with the proposed construction of additional segments of Vermont Route 279, a state highway, in the Town of Bennington. The State’s proposed improvements are detailed in plans captioned “Highway Project Bennington Bypass South NH F019-1 (4)” and “Bennington Bypass North NH F019-1 (5),” copies of which were attached to the petition. VTrans was represented by Assistant Attorney General John K. Dunleavy. At the 1 commencement of the initial day of the hearing, the following interested parties entered notices of pro se appearance: John M. Baker (Parcel 46) Angela J. Cannistraci (Parcel 54) Anthony A. Cannistraci (Parcel 54) Janice E. Goodrich (Parcel 28) Steven H. Goodrich (Parcel 28) Francis E. (Butch) Greene, Jr. (Parcel 50) Joshua H. Greene (Parcel 50) Debra L. Harrington (Parcel 37) Lawrence Harrington (Mortgagee, Parcel 34) Michael L. Harrington (Parcel 37) Millie Harrington (Mortgagee, Parcel 34) Melody V. Niles (Parcel 26) George E. Prouty (Parcel 49) Catherine Smith, Co-Administrator, Estate of Scott O. Smith (Parcel 33) Cynthia W. Watson (Parcel 23) Ralph E. Watson (Parcel 23) Prior to the second day of the continued proceedings, John D. Toscano, Esq. entered his appearance on behalf of the following interested persons: Mark J. Bleau (Parcel 26) Christopher A. Harrington (Parcel 34) Debra L. Harrington (Parcel 37) Laurie L. Harrington (Parcel 34) Lawrence Harrington (Mortgagee, Parcel 34) Michael L. Harrington (Parcel 37) Millie Harrington (Mortgagee, Parcel 34) Garth A. Maxfield (Parcel 16) Melody V. Niles (Parcel 26) Rita C. Niles (Parcel 14) Philip J. O’Neill (Parcel 105A) George E. Prouty (Parcel 49) Joanne B. Prouty (Parcel 49) At the conclusion of the evidentiary hearing, the Court left the record open until July 21, 2006 to receive proposed findings of fact and conclusions of law, which were submitted by the State and by those parties represented by Attorney Toscano. Upon consideration of the petition, 2 the design plans, the representations of counsel and the evidence, the Court makes the following Findings of Fact, Conclusions of Law and Judgment Order. Sufficiency of Notice All interested parties were served with a notice of the highway condemnation proceedings pursuant to 19 V.S.A.§506(a). 1 The represented parties question the sufficiency of the notice as it did not include a warning of the default provision of §506(e), “[u]nless an answer denying the necessity or propriety of the proposed taking is filed by one or more parties served or appearing in the proceedings on or before the date set in the notice of hearing on the petition, the necessity and propriety shall be deemed to be conceded, and the court shall so find.” The Court concludes that the notices served on all parties complied with the statute. Represented parties have provided no authority that the notice is defective unless it references §506(e). In any event, as represented parties acknowledge, the State did not move for a default entry based on the lack of any written opposition by any party, and the Court treated the oral appearances of 1 (a) The agency shall prepare a notice of the necessity hearing. The notice shall include the names of the municipalities in which the lands to be taken or affected are located; the names of all interested persons within the meaning of subdivision 501(2) of this chapter; and a brief statement identifying the proposed project and its location, and the date, time and place of the necessity hearing. The agency shall make service of copies of the petition, the notice of hearing and the survey (for the purposes of this section, "survey" means a plan, profile or cross-section of the proposed project) as follows: (1) Upon interested persons in accordance with the Vermont Rules of Civil Procedure for service of process, except as stated in subsection (b) of this section and in section 519 of this title. The copy of the survey that is served upon interested persons need include only the particular property in which those persons have an interest. (2) One copy each upon the clerk, legislative body and board of listers of each affected municipality by certified mail. The clerk shall record the notice of hearing in the municipal land records, at the agency's expense, and shall enter the names of the interested persons in the general index of transactions affecting the title to real estate. 3 all interested parties who made them at the initial hearing as sufficient to place the burden on the State to produce evidence as to the necessity of the takings. The Court’s jurisdiction was unimpaired by any claimed defect in the formalities of notice. See State Highway Board v. Hazen , 126 Vt. 46 (1966)(property owner who received notice of hearing on necessity petition not prejudiced because notice refers in general terms to proposed improvement without specific reference to phase directly affecting property owner). Findings of Fact Introduction Although a significant number of interested parties appeared to contest the necessity of the project, most of those who had been served acceded to the petition by failing to formally oppose it. The opponents who entered appearances, including those who subsequently retained Attorney Toscano, focused their objections on the claimed disruption to their neighborhood which they believe will accompany the construction in that residential section of Bennington east of the downtown area of an interchange between the proposed limited access highway and existing Route 9. They principally dispute i) the claim that construction of the highway and interchange as designed will alleviate downtown traffic congestion, arguing that it will simply shift the congestion into their neighborhood; and ii) that the route as proposed is as effective for the claimed purpose as other routes, the consideration of which they claim was inadequate. Several of the interested parties gave testimony attesting to their opinions to this effect on the initial day of hearing. At the close of that first day of testimony, the Court informed the interested parties that they would have to make disclosure to the State of the identity of any expert expected to give testimony in opposition to the petition, together with a summary of the expected opinion evidence and the basis for it. The interested parties neither disclosed nor 4 proferred any expert witnesses. At the close of the State’s case, neither the represented parties nor other interested parties offered any further testimony. Their proposed findings are based either directly, or by claimed extrapolation, from the State’s evidence or asserted lack thereof. Having given due consideration to the testimony and exhibits, the Court concludes that all of the State’s proposed findings are supported by the evidence and adopts them by reference. Nonetheless, the Court will set forth hereafter its specific findings addressing the particular challenges to the necessity of the project which have been raised by the interested parties who appeared in opposition. Project Overview 1. The Vermont Agency of Transportation (“VTrans”), on behalf of the State of Vermont, has filed a petition in this Court under 19 V.S.A. Chapter 5 (Condemnation) and 19 V.S.A. Chapter 17 (Limited Access Facilities) seeking authority to acquire certain lands and rights in land in connection with “Highway Project Bennington Bypass South NH F019-1 (4)” and “Highway Project Bennington Bypass North NH F019-1 (5),” the plans of which were attached to the petition. The proposed projects involve construction of additional segments of Vermont Route 279 (also known as the “Bennington Bypass”). (Testimony of James W. Harris; Exhibits 1-29) 2. The purpose of the Bennington Bypass projects is to relieve significant traffic congestion in downtown Bennington and Old Bennington, thereby enhancing public access and use of the commercial center of the village and promoting public safety, to be accomplished by separating through traffic on U.S. Route 7 and Vermont Route 9 from traffic with a destination in the Bennington urban core. Existing U.S. Route 7 and Vermont Route 9 both follow historic highway alignments dating back to the late eighteenth century and early nineteenth century. The 5 Bennington Bypass projects, assuming all are completed, will eventually provide a limited- access facility along new alignments, beginning at a point on U.S. Route 7 about a mile north of the Pownal/Bennington town line and then sweeping around downtown Bennington to the east, north and west to Hoosick, New York. If the projects are not built, the transportation system in Bennington will continue to deteriorate. (Testimony of James W. Harris; Exhibit 36, pp.