¶ 82. concurring and dissenting. In this case, we are asked to decide whether the Common Benefits Clause, Vt. Const, ch. I, art. 7, is self-executing and under the facts presented entitles Rhodes to bring a claim for money damages. The majority answers both questions affirmatively, concluding that the selectboard’s actions unconstitutionally discriminated against Rhodes and remands for a damages award. I wholly concur that Article 7 is a self-executing provision and that a plaintiff disparately treated by a government official motivated by personal ill will may recover monetary damages for a violation of Article 7 under certain circumstances. Considering the unchallenged findings in this case, it is uncontroverted that selectboard members discriminated against Rhodes in preference for his neighbors. Nonetheless, I disagree that a damages action is appropriate because in this case there was an alternative avenue of relief available to Rhodes to cure the constitutional violation. Therefore, I dissent from the majority’s decision to remand this case for an assessment of damages.
¶ 83. In Shields v. Gerhart, this Court first recognized the availability of a state constitutional tort action for money damages. 163 Vt. 219, 658 A.2d 924 (1995). We set forth a two-step process for determining the availability of such an action, inquiring first whether the constitutional provision is self-executing and second “whether monetary damages are available as a remedy for a violation.” Id. at 222, 658 A.2d at 927. We cautioned against creating such a private damages remedy where there existed alternate means for relief “even where the Legislature has provided no alternative civil remedy.” Id. at 232, 658 A.2d at 933. Despite the majority’s reiteration of this cautionary principle and its pronounced commitment to engaging in “a careful inquiry” of *276the facts, ante, ¶¶ 35-36, it has not followed this fundamental holding of Shields that money damages are not available when there is another adequate remedy. 163 Vt. at 234-35, 658 A.2d at 934. Here, such an alternative was available in the form of injunctive relief.
¶ 84. Though the history of this case is lengthy and complicated, it is important to emphasize at the outset that the court awarded damages solely for one reason — to compensate Rhodes for the selectboard’s decision to classify the Unnamed Road as a trail. In analyzing alternative remedies, the majority decision goes awry by looking for a remedy for all of the selectboard’s actions with respect to Rhodes. Thus, it bases its damages remedy on “the selectboard’s intentional abuse of office over the course of more than a decade through decisions concerning the Unnamed Road and TH #20 that prevented, obstructed, and delayed [Rhodes’s] efforts to access his property.” Ante, ¶ 46. I do not believe that the selectboard’s longtime favoritism related to Town Highway #20 (TH #20) should determine whether damages are appropriate for wrongful action with respect to the Unnamed Road. But see ante, ¶ 45 (emphasizing “selectboard’s repeated failure to provide fair and impartial decisionmaking”). It is instead the selectboard’s relatively recent and singular decision to classify the Unnamed Road as a trail that is at issue.11
¶ 85. I thus focus on whether such classification could be remedied in an alternative fashion, and conclude that this is not the type of case “[w]here damages must be recognized to give a plaintiff some remedy.” Shields, 163 Vt. at 233, 658 A.2d at 933. This principle in Shields reflected the reasoning of Bivens v. Six Unknown Named Agents that damages may be awarded for constitutional violations when those violations cannot be remedied by other means. See 403 U.S. 388, 410 (1971) (Harlan, J., concurring).
¶86. The illustration in Shields of such a circumstance was where a state official breached an individual’s right to be free *277from unreasonable search or seizure. 163 Vt. at 233, 658 A.2d at 933 (citing Moresi v. Dep’t of Wildlife & Fisheries, 567 So. 2d 1081, 1093 (La. 1990)). In that type of case, the deprivation of the constitutional right to be protected against unreasonable searches could not be undone or remedied through any other means and therefore a monetary award was appropriate. Id. Bivens presented a similar factual scenario where the petitioner alleged that federal agents under color of law subjected him to an unconstitutional search and seizure. 403 U.S. at 389. In his concurrence, Justice Harlan explained that the issue was whether there was “power to authorize damages as a judicial remedy for the vindication of a federal constitutional right.” Id. at 401-02 (Harlan, J., concurring). He reasoned that such a remedy was necessary for someone like Bivens because “it is apparent that some form of damages is the only possible remedy for someone in Bivens’ alleged position. It will be a rare case indeed in which an individual in Bivens’ position will be able to obviate the harm by securing injunctive relief from any court.” Id. at 409-10.
¶ 87. Here, Rhodes asserted no lasting damage from the trail classification that could not be remedied by a decree reversing that decision. He alleges no damage to his land or his economic interest. While he plans at some point to develop this land, he has no concrete plan to do so. In fact, Rhodes’s amended complaint sought a declaration undoing the selectboard’s classification and monetary damages “[i]n the alternative.” Thus, for Rhodes, in contrast to Bivens, there is means for him to “obviate the harm by securing injunctive relief.” Id. at 410.
¶ 88. The main case cited by the majority in support of damages further illustrates this distinction. In Brown v. State, 674 N.E.2d 1129 (N.Y. 1996), a group of nonwhite plaintiffs sued police officers alleging state constitutional violations for stopping and interrogating them without cause and based solely on their race. The New York Court of Appeals held that the plaintiffs could bring a cause of action to recover damages against the state for violations of the equal protection and search and seizure clauses of the state constitution. Id. at 1138-39. Brown emphasized that damages were available when other remedies, including injunctive or declaratory relief, were inadequate. Id. at 1141. In Brown, the court explained that no injunction or declaration could correct the invasion that the plaintiffs had already experienced, and, therefore, damages were the “appropriate remedy for the invasion of personal interests in liberty.” Id.
*278¶ 89. In contrast, courts decline to recognize a monetary action where an alternative remedy could address the asserted violation of the plaintiffs particular constitutional right. See Shields, 163 Vt. at 234, 658 A.2d at 934 (noting general rule that a private damage action under the constitution will not be recognized “where the plaintiff has an administrative or common-law remedy to obtain the governmental benefit or license sought or the restoration of employment or the like”); see also Sunburst Sch. Dist. No. 2 v. Texaco, Inc., 2007 MT 183, ¶ 64, 165 P.3d 1079 (concluding that there was no action against oil company for violation of state constitutional right to clean and healthful environment where common law provided an adequate remedy); Corum v. Univ. of N.C., 413 S.E.2d 276, 289 (N.C. 1992) (holding that direct claim may be brought to vindicate state constitutional rights “in the absence of an adequate state remedy”).
¶ 90. An alternative remedy includes the ability to seek redress through judicial decree. Katzberg v. Regents of Univ. of Cal., 58 P.3d 339, 356 (Cal. 2002) (concluding that no action for damages was available where plaintiff could have sought to remedy the alleged violation of his due process liberty interest by seeking declaratory or injunctive relief). As the U.S. Supreme Court recognized in Correctional Services Corp. v. Malesko, 534 U.S. 61, 74 (2001), “injunctive relief has long been recognized as the proper means for preventing entities from acting unconstitutionally.” As an example of a case in which an alternative remedy was available, Shields discussed Kelley Property Development, Inc. v. Town of Lebanon, 627 A.2d 909, 919-24 (Conn. 1993), in which a developer alleged that the town had violated his state constitutional due process rights in denying his subdivision application. The court held that no private damage action was appropriate because the developer had other available avenues of relief, including bringing an equitable claim to undo the town’s wrongful conduct. Id. at 923. The majority identifies this principle and, in fact, cites such cases where no private damage action is recognized because the injury resulted from an ongoing policy or administrative decision that could be cured by an injunction. Ante, ¶ 42 (citing Rockhouse Mountain Prop. Owners Ass’n v. Town of Conway, 503 A.2d 1385, 1388-89 (N.H. 1986) (denying damage remedy for town’s alleged equal-protection violation in refusing to lay out village roads where adequate alternative relief was available)); ante, ¶ 47 n.5 (citing City of Hueytown v. Jiffy Chek Co. *279of Ala., 342 So. 2d 761 (Ala. 1977) (affirming use of equitable relief in response to equal protection violation); Herrick’s AeroAuto-Aqua Repair Serv. v. Dep’t of Transp. & Pub. Facilities, 754 P.2d 1111, 1116 (Alaska 1988) (denying action for damages because injunctive relief was available and could right the violation of equal protection asserted by plaintiffs)). Nonetheless, the majority fails to acknowledge the similarity to this case where judicial decree can cure the selectboard’s unconstitutional action classifying the Unnamed Road as a trail.
¶ 91. At first blush, it might appear that our law does not have a preference for an equitable remedy over the legal remedy of damages generally and, therefore, one can argue that there should be no such preference in providing a remedy for a Vermont constitutional violation. Indeed, the general maxim is that “[e]quity will not afford relief where there is a plain, adequate, and complete remedy at law.” Gerety v. Poitras, 126 Vt. 153, 155, 224 A.2d 919, 921 (1966). This maxim is very limited, however, because “the legal remedy ‘must be competent to afford relief on the very subject matter in question, and be equally convenient, beneficial and effective’ as the equitable remedy which would otherwise be available.” In re C.B., 147 Vt. 378, 381, 518 A.2d 366, 369 (1986) (quoting Poulin v. Town of Danville, 128 Vt. 161, 165-66, 260 A.2d 208, 211 (1969)). The remedy at law must be “‘practical and as efficient to the ends of justice and its prompt administration as the remedy in equity.’ ” Poulin, 128 Vt. at 166, 260 A.2d at 211 (quoting Hall v. Vill. of Swanton, 113 Vt. 424, 428, 35 A.2d 381, 384 (1944)). Also relevant here, “one of the primary functions of equity is to afford complete relief while avoiding multiplicity of litigation.” C.B., 147 Vt. at 381, 518 A.2d at 369.
¶ 92. As Professor Douglas Laycock noted in his seminal work on the availability of equitable remedies: “[r]emedies that prevent harm altogether are better for plaintiffs.” D. Laycock, The Death of the Irreparable Injury Rule, 103 Harv. L. Rev. 687, 689 (1990). In making this point, he quoted Pomeroy’s treatise Equity Jurisprudence: “ ‘a remedy which prevents a threatened wrong is in its essential nature better than a remedy which permits the wrong to be done, and then attempts to pay for it.’ ” Id. (quoting 3 J. Pomeroy, Equity Jurisprudence § 1357, at 389 (1st ed. 1887)). Professor Laycock concluded that courts have analyzed the adequacy of damage remedies such that the preference has become reversed: “our law embodies a preference for specific relief if *280plaintiff wants it.” Id. at 691. He noted from examining decisions that courts “find damages adequate . . . only when there is some identifiable reason to deny specific relief in a particular case.” Id. A holding that an equitable remedy is preferable to a damages remedy in this case is entirely consistent with our general law.
¶ 93. I recognize that I am arguing that the lack of preference between equitable and legal remedies in our remedies law generally should become a required preference when we are enforcing Vermont constitutional rights without an implementing statute. I believe that the unique nature of constitutional enforcement requires that we leave a damage remedy as a last resort.12 Our own precedent in Shields, the Bivens line of cases, and the decisions from other states support this principle.
¶ 94. The majority acknowledges that an injunctive remedy is not “invariably inadequate,” ante, ¶ 47 n.5, but says it is inadequate in this case because “it does not cure the personal harm inflicted in an exceptional case such as this, involving a lengthy pattern of invidious delay, obstruction, and discriminatory decisionmaking.” Id. ¶47. This statement falsely assumes that constitutional damages will necessarily result when the alternative remedy does not completely compensate the injury. Indeed, under the majority’s standard, there will never be an adequate alternative.
¶ 95. That the alternative remedy is less generous than the damages available from a constitutional tort does not negate the alternative and automatically mean that a damages action is viable. The two need not be wholly congruent. As we explained in Shields, since Bivens the U.S. Supreme Court has retreated from its initial stance and does not recognize a remedy for damages where there are other available civil remedies, even if those do not *281fully compensate the plaintiff for the harm suffered. Shields, 163 Vt. at 228-30, 658 A.2d at 931-32; see Kelley, 627 A.2d at 921 (“It is no longer sufficient under federal law to allege that the available statutory or administrative mechanisms do not afford as complete a remedy as a Bivens action would provide”). Following these cases, most courts agree that damages are not awarded to compensate an individual to the fullest extent possible, but to provide a deterrent effect and to ensure that there is some relief available for the constitutional violation.
¶ 96. Even if the majority’s new adequacy standard were the law, I do not believe it would require any greater remedy than an injunction in this case. Rhodes did not allege or prove — and the superior court did not find — that the selectboard’s decision classifying the Unnamed Road as a trail caused him any physical or emotional damage. His sole complaint was that the selectboard’s decision harmed his property interest by restricting his access to his property.13 At trial, Rhodes’s theory was that the classification decreased the value of his property because he no longer had road access to part of his land and therefore could not develop that part. He sought damages, based on a comparable sales approach, in the amount of the difference in the property’s value with and without road access.
¶ 97. As the majority holds, the trial court’s damages award based on Rhodes’s theory was inappropriate because the court treated the Town’s action as a taking, giving Rhodes an amount equal to the loss of value of his land caused by the prohibition on vehicular access. We held in Whitcomb v. Town of Springfield, 123 Vt. 395, 397, 189 A.2d 550, 552 (1963), that the downgrading of a town road to a trail does not involve taking more land from abutting landowners and, therefore, cannot be the cause of takings damages. See also Ketchum v. Town of Dorset, 2011 VT 49, ¶ 13, 190 Vt. 507, 22 A.3d 500 (mem.) (reaffirming Whitcomb). We added in Perrin v. Town of Berlin, 138 Vt. 306, 307, 415 A.2d 221, 222 (1980), that the loss of town maintenance that resulted from the downgrade to a trail “is not a right in the landowner, but is a *282right held in common by all the citizens” and, thus, cannot be the basis for compensation to the abutting landowner. The superior court damage remedy ran afoul of these holdings. I therefore agree with the majority that if Rhodes were entitled to damages, the measure used by the superior court cannot be affirmed.
¶ 98. If Rhodes has any entitlement to damages for a difference in the value of land, it would be for the temporary deprivation of development potential “for the period of time the [discriminatory land use decision] actually delayed the development of the project.” N. Pacifica LLC v. City of Pacifica, 526 F.3d 478, 486 (9th Cir. 2008); see also Town of Orangetown v. Magee, 665 N.E.2d 1061, 1068-69 (N.Y. 1996). A key requirement is that damages will be appropriate only if the discriminatory action caused “actual delay” in development. N. Pacifica, 526 F.3d at 487. Since plaintiff had no concrete plans to develop the area of his property reachable by the Unnamed Road, there was no actual delay, and, therefore, he is entitled to no damages. Further, it makes no sense to award damages for loss of development potential when an injunction will stop the loss.
¶ 99. The majority suggests alternatively that Rhodes may be entitled to two types of damages — emotional distress damages because of his treatment by the Town selectboard and damages representing the difference between the cost of upgrading the Unnamed Road at the time damages are measured and the cost Rhodes would have paid to upgrade it when the selectboard classified it as a trail. I would not hold that these damage elements are recoverable.
¶ 100. As stated above, plaintiff never sought or proved that he suffered any emotional damages and specifically never sought damages for “anguish and inconvenience.” Ante, ¶ 49. No damages are due without proof of “actual injury.” Farrar v. Hobby, 506 U.S. 103, 112 (1992). This may include economic, physical, or emotional injury, but the mere violation of a constitutional right without any proximate injury is insufficient to warrant damages. Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 307-08 (1986). If plaintiff is to recover damages based on emotional distress, he must prove that “such injury actually was caused.” Carey v. Piphus, 435 U.S. 247, 264 (1978) (discussing emotional distress *283damages based on a claim of a due process violation). He never did so here.14
¶ 101. For this reason, I am at a loss to understand what will occur in the remand ordered by the majority. The Town appealed the award of damages and the amount and prevailed on the amount issue. The majority acknowledges there must be “proof of actual injury.” Ante, ¶ 51. There was no such proof, and, thus, Rhodes has waived any claim of emotional distress damages. Thus, the trial court must award no damages unless the testimony is reopened to allow Rhodes to prove an element of damages he never sought. It would be a manifest injustice to the Town to allow Rhodes, who never appealed and lost on his measure of damages theory, a new opportunity to prove damages he did not claim. See Havill v. Woodstock Soapstone Co., 2007 VT 17, ¶ 10, 181 Vt. 577, 924 A.2d 6 (mem.) (explaining that issues not raised in original appeal are beyond scope of remand and therefore, on remand, no new evidence should be taken on an element of damages not previously sought).
¶ 102. The second damage element — the differential cost of upgrading the road — should not be recoverable in light of the superior court’s finding that Rhodes has no specific plans for development. Rhodes is not entitled to the difference in the cost of road improvements between the cost at the time of the selectboard’s classification decision and the cost today. Because he has never had specific plans to develop the property, he never would have expended the lesser amount. Further, any plans to develop the road in the future are speculative, and the costs of developing the road will presumably be covered by the proceeds from selling the developed lots.
¶ 103. If the superior court had issued an injunction against the classification of the Unnamed Road as a trail in 2010, this case would have been over, and Rhodes could have developed his property if he desired. Because the issuance of the injunction is a complete alternative remedy to damages, I would reverse the compensatory damages award, and remand for the trial court to issue an injunction. In all other respects, I concur in the majority decision.
*284¶ 104. I am authorized to state that Chief Justice Reiber joins in this concurring and dissenting opinion.
While the majority claims that Rhodes generally sought relief in his complaint for damages, ante, ¶ 51, when read in context, the phrase of the trial court’s order cited by the majority plainly delineates that the damages were for the selectboard’s decision to classify the Unnamed Road as a trail. The full quote reads: ‘When one considers the Town’s classification of the unnamed road, two factors stand out. First, the Town’s decision is part of a consistent pattern of discriminatory conduct that has lasted for more than twelve years.”
One source of the underlying law for this choice is our policy with respect to creating a damage remedy for violation of statutory rights. In Dalmer v. State, 174 Vt. 157, 167-68, 811 A.2d 1214, 1224 (2002), we held that we would apply § 874A of the Restatement (Second) of Torts to the question of whether to create a civil damages remedy for violations of the Juvenile Procedures Act. That section provides that a “civil tort remedy for violation of a statute is proper only if the statute ‘protects a class of persons by proscribing or requiring certain conduct’ and ‘the remedy is appropriate in furtherance of the purpose of the legislation and needed to assure the effectiveness of the provision.' ” Dalmer, 174 Vt. at 167-68, 811 A.2d at 1224 (quoting Restatement (Second) of Torts § 874A (1979)). Similarly, the question here is whether a civil damages remedy is necessary to ensure the effectiveness of Article 7.
Given that Rhodes’s request for damages was limited to compensating him for damage to his property interest, it is therefore perplexing that the majority would conclude that Rhodes is entitled to “an award of civil damages for the mental or emotional distress resulting from” the Town’s misconduct. Ante, ¶ 51. Rhodes did not plead, or present evidence of, emotional harm. Consequently, the trial court made no finding regarding mental injury.
1 repeat my earlier point that liability is based on the reclassification of the Unnamed Road and not on the interactions between Rhodes and the selectboard concerning TH #20 or other subjects.