Monday, August 31, 2015

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From the shameless-self-promotion desk

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Saturday, August 1, 2015

Requirements Revisited

State v. Provost, 2014 VT 86A

By Andrew Delaney

This is an amended opinion. If you notice a few similarities between this summary and last year’s, you’re probably not alone. The amended opinion issues based on Mr. Provost’s motion for reargument, but the end result is the same—the SCOV majority concludes that Mr. Provost violated his probation.

Among other things, Mr. Provost pled guilty to an aggravated domestic assault. One of his probation conditions was that he participate in the “Domestic Violence (DV) Solutions program.” His intake—which took a couple tries to get to because defendant canceled twice when he didn’t have the required fee—did not go well.

According to the intake counselor, Mr. Provost was belligerent from the get-go, starting with a hostile response when she called his name for the appointment. When asked about convictions, Mr. Provost accused her of going through his records. He refused to admit to committing the offense, and the intake counselor said she was going to terminate the interview. Mr. Provost then allegedly blocked the doorway. The intake counselor called for a probation officer (PO) to help. Then Mr. Provost began yelling at the PO.

Thursday, July 30, 2015

Condominium Wizardry

Arapaho Owners Association Inc. v. Alpert, 2015 VT 93

By Elizabeth Kruska

You just know you’re in for a good SCOV (or any court) opinion when it starts with “[t]he case began its journey through the legal system . . .” It starts at Platform 9 ¾. No, actually it starts at the beautiful Woodstock courthouse. This case involves not only a condo association, but one formed in 1979. We’re talking over thirty-five years of potential condo problems.

This goes sideways kind of early on, actually. The condo plan and declaration was to create 50 condo units. In reality, 54 units were constructed; two were split, and one was an additional townhouse-type unit that never got built. The thing to do at that point would have been to amend the declaration so it conformed to what was actually built, but that didn’t happen.

Thirty or so years go by, and in 2008, some issues were raised because not everyone in the association was paying the same share of common expenses. The ownership share should get recalculated, but due to condo rules, bylaws, statutes, vagaries of syntax, Mercury in retrograde, and whatnot, changing ownership shares required a 100% approval vote by the owners. Now, I live in a condo association. I can tell you from firsthand experience, there just simply is no way to get 100% of condo owners to agree to something. You could say you’re giving away ice cream and free snuggles with fuzzy puppies and that still wouldn’t get 100% agreement.

Monday, July 27, 2015

On The Highway To Hell: No Way It’s A Highway

Kirkland v. Kolodziej, 2015 VT 90

By Thomas M. Kester

I think the Doobie Brothers summed this case up somewhat in their song “Divided Highway” when they sang “divided highway stranded at the crossroads, of what’s wrong and who’s right, divided highway cuttin’ through the darkness.” But the question arises: is this a highway? Or is this case of a highway to the danger zone? Or a highway to hell? More specifically (and on point), is it a public highway under Vermont law?

I’ve copied the hand-drawn map that is included in the opinion for ease of knowing specific landmarks and for those of us that are geographically illiterate:

Sunday, July 26, 2015

Antagonistic Arguments About Access

Post and Beam Equity Group, LLC v. Sunne Village Development Property Owners Association, 2015 VT 60

By Andrew Delaney

If you base your judgment of property owners associations on SCOV opinions alone, it’d seem that they’re more trouble than they’re worth. I, for one, won’t be looking to buy anything in a subdivision anytime soon.

Post and Beam (P&B) owns a couple adjacent commercial parcels in West Dover. On one parcel, it’s got a couple restaurants and some parking. The other parcel is used for parking for restaurant patrons. Here’s the twist: the second parcel is made up of three lots, all of which are part of the Sunne Village Development and include a “perpetual right of way and easement for lot owners over Sunne Village Lane.” Owning those lots makes P&B a member of the Sunne Village Development Property Owners Association (POA).

The restaurant parcel, which is not part of the subdivision, has access from Route 100 and Sunne Village Lane. The parking-lot parcel has access from Sunne Village Lane and No Name Road. The SCOV threw in a schematic to help visualize, but I can’t find it anywhere now—sorry. 

Fanfare in Ferrisburgh: Part deux

In re Champlain Oil Company Conditional Use Application, 2014 VT 19

By Hannah Smith
In the second installment of the thrilling two-part series Fanfare in Ferrisburgh, the Court considered the permissibility of a conditional use permit granted for a combo gas station-convenience store-restaurant, again slated for that fateful stretch of Route 7 in Ferrisburgh.

The proposed construction was to take place along the Route 7 corridor, half a mile south of the town center, in a Highway Commercial/Rural Agricultural Zoning district still searching for an identity (you’d be conflicted too, if you were zoned both commercial and rural). The character of the neighborhood, while home to some private residences, is described by the Court early in the decision as “more commercial in character.” This innocuous observation of the Court proved important, if not definitive, in this case. In the complicated and contentious world of land use, apparently it sometimes requires the highest court in the state to objectively answer the simple question “what is the character of this neighborhood?”

In this particular case the town granted a conditional use zoning permit to Appellee Champlain Oil Company, to construct their gas station complex on the site of a former roadhouse restaurant. The Environmental Division upheld the town’s decision, and a group of individuals, along with the Ferrisburgh Friends of Responsible Growth, Inc. appealed the Environmental Court’s decision. The appeal was based on the following arguments: (1) That the proposed uses are prohibited by the town zoning ordinance and inconsistent with the town plan; (2) that the visibility of the parking spaces permitted for the project would result in an “incremental . . . shift in the character of the neighborhood; and 3) that the septic system for the project would be outside the required setback zone. Again, the SCOV found little merit in any of these arguments.

Fanfare in Ferrisburgh: Part I

In re Group Five Investments CU Permit, 2014 VT 14

By Hannah Smith

In 2014, the SCOV decided two cases regarding proposed development along the (apparently very controversial) Route 7 corridor in Ferrisburgh. In both cases, the proposed development and outraged opposition were eerily similar in nature.

In the first of this two-part series, unhappy neighbors appealed an Environmental Division decision affirming the Town of Ferrisburgh Zoning Board of Adjustment (ZBA)’s grant of a conditional use permit to build a Dollar General. Appellants in this case threw every argument they could think of at the wall, and not one stuck.

In 2011, the Ferrisburgh ZBA granted Applicant a conditional use permit to build a Dollar General store on Route 7, in Ferrisburgh’s Highway Commercial District. Far from a fly-by-night rubber-stamping of Applicant’s request; the permit imposed seventeen additional conditions (beyond the standard requirements of the recipient of a conditional use permit) on the Applicant. Neighbors of the proposed project appealed the permit to the Environmental Division. The Environmental Division affirmed the ZBA’s decision, imposing the additional requirement that the Applicant build a crosswalk across its parking lot, for the safety of customers. The unsatisfied neighbors appealed the Decision to the SCOV.

Friday, July 24, 2015

F-35A Jet Planes Ain’t Noise Pollution

In re Request for Jurisdictional Opinion re: Changes in Physical Structures and Use at Burlington International Airport for F-35A2015 VT 41

By Andrew Higley

Everyone knows the old saying “you can’t fight city hall.” Well, in this case, it seems to be that you can’t fight the federal government either. The outcome of this case is certainly one of those that leave non-lawyers scratching their heads. How can there be no remedy for such an intrusive, apparently “ear-splitting” harm? The case takes place in the context of an ongoing battle between the City of Burlington and local residents over the placement of F-35A airplanes at the National Guard air force base adjacent to the Burlington International Airport, and the noise pollution they create.

The Vermont Air National Guard occupies the based adjacent to Burlington International Airport. However, the United States Air Force (USAF) leases from the City of Burlington the land itself. The current lease extends to June 2048. The City has an Act 250 land-use permit for an airport hanger, facilities, and runway.

In December of 2013, USAF decided to place 18 large F-35A aircraft at the Vermont Air National Guard base. The Guard and USAF share the runway to the airport with civilian and commercial airplanes. Although a number of Act 250 permits relate to the runway, there were no proposed structural changes to the runway. However, there were proposed structural changes to other parts of the base in order to accommodate the arrival of the F-35As.

Thursday, July 23, 2015


Falanga v. Boylan, 2015 VT 71

By Elizabeth Kruska

Chris Falanga (Dad) and Kerry Boylan (Mom) have a child (Child) who is, at this point, about three years old. Child was born in January, and the family lived together as a family unit until fall of that same year. Then Mom asked Dad to move out, which he did, and moved in with his own parents in the next town over. Dad filed a parentage action in the Family Court. They were never married, so this is the correct procedural step for establishing custody and visitation.

Ultimately, the Family Court ordered that Mom would get physical and legal custody of Child, and that Dad would get visitation that essentially amounted to a quarter of Child’s time.

A little over a year later, Mom decided she wanted to move to Georgia. She had a boyfriend, and their plan was to relocate there and to take Child with her. Dad filed an emergency motion to give him full custody because Mom was moving away, and as far as Dad was concerned, this was going to be a “real, substantial[,] and unanticipated change of circumstances.” You guys, the opinion quotes the statute, so I went to look at the statute. Apparently the legislature doesn’t use the Oxford comma.

Monday, July 20, 2015

Breaker, Breaker - Come In Good Buddy… Are You An Employee Or Not?

Bradford’s Trucking, Inc. v. Department of Labor2015 VT 85

By Thomas M. Kester

To prepare for this summary, I didn’t actually start off by reading the case. Instead I watched the Smokey and the Bandit trilogy to understand what is an “integral” and “necessary part of doing business” for a trucking operation. I didn’t learn much, other than that Trans Ams were badass in the 1980s. I also watched Optimus Prime in the Transformers films, but Optimus Prime never hauls any freight so I am like 90% sure Transformers is fictional.

This case arose from Bradford’s appeal from a Department of Labor assessment that three workers were employees of Bradford, and an evidentiary hearing where an administrative law judge (ALJ) upheld the Department’s determination. Bradford then appealed to the Employment Security Board (Board), which adopted the ALJ’s findings. The ultimate finding (and the meat-and-potatoes of the case) was the three workers were "employees" for purposes of assessing unpaid unemployment-compensation contributions by Bradford.