Thursday, December 18, 2014

Aesthetics Arguments

In re Goddard College, 2014 VT 124

By Elizabeth Kruska

Goddard College wants to build a woodchip heating system to replace its old system. Goddard’s neighbor thinks the plant will ruin the aesthetics of the area and wants to use Act 250 to make Goddard put the chip plant somewhere else on its property. Hey, I get it. Nobody wants to look out their kitchen window at what used to be a nice view of a mountain or a lake and see a power plant instead.

Part of the Act 250 permitting process requires that the aesthetic impact of a project be considered. If there is going to be an adverse aesthetic impact, there then has to be a consideration of whether it’s an undue impact. That is, whether the impact violates a clear, written standard meant to preserve the aesthetics of an area or whether the project offends the sensibilities of an average person. Plopping a giant industrial park in the middle of a historic neighborhood might be such a thing.

Monday, December 15, 2014

Development Disagreement

Highridge Condominium Owners Association v. Killington/Pico Ski Resort Partners, LLC, 2014 VT 120

By Elizabeth Kruska

When I was a junior in college, my dad asked me what classes I planned to take one semester. I told him I needed to find a social science course that fit my schedule and was interesting to me. He told me to take meteorology. I was confused for a second, since meteorology is a physical science. Without skipping a beat, my dad said, “of course meteorology is a social science. Get 2 people in a room together and they’re going to talk about the weather.” Ba-dum-bum. Everyone’s a comedian.

As true as it is that people will always talk about the weather, it is equally as true that people involved in condo associations will disagree about something.

Here, a group called North Ridge created a condo association called Highridge (this gets confusing with all the ridges) in 1983 in the Town Formerly Known As Sherburne. I didn’t know Sherburne changed its name to Killington in 1999 until I read the footnotes in this case. The things you learn in footnotes!

This Litigation Goes to Eleven . . . Days of Trial, That Is

Ring v. Carriage House Condominium Owners’ Assoc., 2014 VT 127

By Elizabeth Kruska

This case has to do with a “longstanding feud” (SCOV’s actual description of the situation) between a condo association and one of the individual property owners in the association. For those who have never lived in a condo association, lemme tell you, feuds are de rigeur in such associations. In fact, I wouldn’t be surprised if some had a clause in their bylaws requiring that there must be one or more ongoing feuds between various owners and the association at all times.

There are five different players in this case: Plaintiff Ring and the four defendants including the Association, Maroldt, Morrison, and Beck. Morrison and Beck were married; Mr. Morrison died.

Here’s the story. Way back in 1996, Ring buys two unfinished condo units in a building. There was an issue about development rightshe paid for the ability to develop without permission of the Association, although the neighbors thought the Association had to okay it. In any case, Ring got a permit to do some development, and the Association sued him. But he applied for a permit, and the permit was approved, so he started doing construction.

Saturday, December 13, 2014

Trees, Trucks, and Trouble

State v. Hinton, 2014 VT 131

By Andrew Delaney

Losing one’s driver’s license is a big deal—especially in Vermont. Public transportation is pretty much nonexistent and hitchhiking to and from work can get old in a hurry. So, if there’s a shot at getting a DUI tossed based on an unlawful seizure or some other violation, most people will take it.

At first I thought the defendant in this case might be Unknown Hinson, which would’ve been an interesting twist, but alas, we’re one letter off. So we probably won’t get a psychobilly ballad about trucks, trees, and troopers to accompany this opinion.

It all started with a tree. In late December of last year, the tree broke off about fifteen feet above the ground and partially blocked a roadway. An officer responded to the scene, decided the tree was a danger, called the highway crew, and drove a mile or two back to an intersection to (allegedly) warn drivers of the danger if they were headed up the road.
 

Sunday, December 7, 2014

Great Guilt?

State v. Theriault, 2014 VT 119 (mem.)

By Andrew Delaney

I don’t think “whether the evidence of guilt is great” is the best phrase to use in the criminal context. But it’s the phrase that’s used.

Mr. Theriault was charged with second-degree murder of two-year-old Jamaal (Munyon) Turkvan. The trial court held a weight-of the-evidence hearing, and determined the evidence of guilt was great. Mr. Theriault was held without bail under the statute that allows a defendant to be held without bail when the evidence of guilt is great and the offense charged is punishable by life imprisonment. He appeals.

The SCOV notes that the trial court hasn’t yet made a discretionary determination regarding whether Mr. Theriault should be released on conditions or whether he should continue to be held without bail, so the only issue on appeal is whether the evidence of guilt was great, or as I would phrase it, whether the evidence strongly indicates guilt. Alas, I don’t run the world . . . yet. 
 

Wild Water

Langlois v. Town of Proctor, 2014 VT 130

By Andrew Delaney

In the spirit of Félix Fénéon’s Novels in Three Lines: Potentially negligent landlord wins suit against town for town’s negligence without mention of her potential negligence and the SCOV reverses.

Of course, there’s a little more to it than that. Basically, plaintiff-landlord didn’t pay her water bill. She made some kind of an agreement with a town representative to shut the water off so that she wouldn’t incur any more charges. The town didn’t shut off the water, but landlord thought the town had. Landlord stopped heating the building. The pipes froze and burst, bada-bing, bada-boom, and in the words of Samuel Taylor Coleridge, “Water, water every where, Nor any drop to drink.”

So, landlord sued and made it to trial on negligence and breach-of-contract claims (consumer fraud and negligent misrepresentation got the boot on summary judgment). The jury found town negligent and awarded plaintiff almost $65K. The trial court didn’t give a comparative negligence instruction. Oopsie.

Tuesday, November 25, 2014

Deck, Deck, Use

In re Carrigan, 2014 VT 125

By Elizabeth Kruska

One of my favorite songs is “Go Back To Your Trailer” by the brilliant young country singer/songwriter Kacey Musgraves. The chorus goes (in part):
Keep your two cents
On your side of the fence
Girl, we ain’t friends, we’re just neighbors
This reminds me of a lot of the permitting and zoning dispute cases we read from SCOV, although the case opinions tend to be more full of words and less full of slide guitar. (Note to SCOV: more slide guitar, please. Although, I’m not sure how to make that happen.)

Anyway, as best as I can tell, this is the problem faced by the Carrigans. They bought a camp on or near Lake Champlain in the town of Addison sometime during the Reagan Administration. The camp is located fully within 100 feet of the shoreline, and under the Town’s bylaws, is a “nonconforming structure.” Whether the camp was there first or the rules were there first, I’m not sure. I’m guessing the camp predates the bylaws.

Sunday, November 23, 2014

Bail, Brought Back, Briefly

State v. Campbell, 2014 VT 123 (mem.)

By Andrew Delaney

Last round, Mr. Campbell got the SCOV to order an immediate bail-review hearing. This round, Mr. Campbell doesn’t fare so well.

As you may or may not recall, Mr. Campbell was charged with violating his probation. The underlying charge was violation of an abuse prevention order. When, months later, a different complainant applied for and was granted an abuse-prevention order, Mr. Campbell was charged with violating his probation. He was arraigned and ordered held without bail, which means he ended up in some state-subsidized Hotel California style housing. When he asked to review bail, the trial court just said that it had explained why he was going to be held without bail at arraignment and that was that.

So he appealed, and if you’re a regular reader, you know what happened: the SCOV ordered an immediate bail-review hearing. Here’s a link for you slackers.

Money Can’t Buy Me Love

Goodrum v. Vermont Dept. of Taxes, 2014 VT 128

By Andrew Delaney

But its pursuit can help qualify one for a tax exemption. Also, if I was a pirate I’d want my last name to be Goodrum, but that’s neither here nor there.

The Goodrums own just over 40 acres, and all but two acres is enrolled in Vermont’s Use Value Appraisal Program. The two acres at issue (presumably) house Turtle Hill Farm, a nonprofit corporation operating an animal sanctuary, funded almost entirely by donations. The Goodrums started Turtle Hill in 2008, and they provide most of the donations. The Goodrums lease four barns and two sheds to Turtle Hill for the taking-care-of-the-rescued-animals thing.

A few years back, the Goodrums applied to enroll the leased-to-Turtle-Hill sheds and barns in the Use Value Appraisal Program (UVA), which would exempt the buildings from property taxes. The Vermont Department of Taxes’ Division of Property Valuation and Review (PVR for short) found that the buildings were ineligible. The Goodrums appealed to PVR’s director, who found the same. The Goodrums then appealed to the superior court, and both parties went for summary judgment. PVR got it, with the superior court ruling “that the buildings are not eligible for enrollment because [Turtle Hill] does not operate for gain or profit” and doesn’t meet the statutory definition of farmer.

Tax law is weird. 

Friday, November 21, 2014

Slut Shaming: Don’t Do It

State v. Groce, 2014 VT 122

By Elizabeth Kruska

Sometimes SCOV takes an entire paragraph to call out some bad behavior. This is one of those times. Good on you, Chief Reiber. It’s not cool to call someone a slut. Just don’t do that. Don’t.

The thumbnail version of the story is this. Complainant (not Slut, as perhaps the State’s Attorney would prefer she be called) and her boyfriend Jason went out for drinks in downtown Rutland, and then ended up at a party at the home of some friends. Complainant and her boyfriend got into an argument because he was talking to other people at the party. He decided to cool off and walked home, leaving her there.

After he left, she went into a bedroom and made some phone calls, and then fell asleep. Her story is she woke up later to find a man who she did not know, performing oral sex on her. According to her she got up, ran into another bedroom and told the people at the party what happened. Then she got a ride home and her boyfriend took her to the police station and the hospital.