Friday, March 9, 2012

Go Now

In re Chittenden Solid Waste District, 2012 VT 10 (mem.).

The first sentence of today’s case sounds an unmistakable tone of weariness. 

“This condemnation case was filed in July 1992, making it very, very old.” 

Indeed, anyone who has practiced law in Chittenden County in the past 20 years knows about the Chittenden Solid Waste case and the monumental amount of time it has taken to wend its way through the condemnation process.  For those that are unfamiliar with this war horse, here is a brief rundown.

In the late 1980s, the planners at the Chittenden Solid Waste District, which administers all of the solid waste needs for Chittenden County, realized that their existing landfill would soon be nearing capacity.  With no other landfills in the area likely to meet their needs, the District concluded that it would need to develop a new site to serve the growing population of the county for the next 50 years or more.  To that end, the District studied various locations throughout Chittenden and found what it believed to be a perfect spot for a landfill in Williston.  The site was a sandpit owned by Hinesburg Sand and Gravel.  Under Vermont state law, the District has the power to take private property for such uses, and the District notified the Owners of its intent. 

The Owners refused the District’s offer and lawyered up for the next stage, which began in 1992 with the commencement of a condemnation action in the trial court.

Condemnation proceedings have two parts.  The first part requires the government agency to prove that it is “necessary” for them to take the private property in order to fulfill a public reach capacity.  This is usually a straightforward process and many Owners do not contest this portion of the case.  This case took seven years and two appeals to the SCOV just to resolve the issue of necessity. 

The second part of a condemnation proceeding is damages.  Under the Fifth Amendment to the United States’ Constitution, private property cannot “be taken for public use, without just compensation.”  The damages portion of a condemnation proceeding puts the issue to a jury and asks them to decide what compensation is just.  This portion of today’s case took ten years to resolve and involved an initial jury award of $8.4 million, a court ordered reduction, and another appeal to the SCOV. 

In the end, the Owners of the sandpit were awarded $4 million dollars and the right to use all of the sand that the District pulled out of the sandpit.  In February 2009, the District tendered the check to the Owners and took possession of the sand pit.

Before you can say “end of story,” though, Owners are back for one last challenge.  It seems that when the issue of damages was put to a jury in 2003, the parties, by mutual agreement, valued the property based on numbers directed toward the value of the land as of January 1, 2000.  While that may have made tactical sense at the time, nine years later the Owners have had second thoughts.

Fortunately, the SCOV has adopted a process for parties seeking to raise their damage award because too much time has elapsed between the initial valuation and final award.  Unfortunately for Owners, this process is a limited pleading done through Rule 60(b).

Rule 60(b) grants relief from judgments for a limited number of reasons including mistakes, inadvertence, excusable neglect, newly discovered evidence, or fraud.  Such relief is by its nature limited, and courts considering such motions have broad discretion in considering whether to even allow the party the opportunity to reopen things. 

In this case, the SCOV has adopted a two-step process for someone claiming additional damages in a condemnation proceeding.  First, the property owner must show to the judge at the trial court level that there has been “been a material change in the value of the property between the date of the valuation and the date of the tender of compensation.”  Second, assuming that the trial court finds there to be credible evidence or basis for such a change, then the narrow issue of whether such a material change has occurred may be submitted to the jury with the purpose of awarding additional money. 

In other words, a party seeking such relief must in essence prove her case to a judge—perhaps not to the same level as to a jury but at least enough so that the judge can determine that there are grounds for such relief—then she must do it again for the jury. 

Owners in today’s case never quite clear the first bar.  In their first Rule 60(b) motion, Owners submitted no support for their request.  The trial court, while inclined to reject the motion on its face, gave the Owners 10 days to file additional evidence and support.  Owners did and submitted an affidavit from an appraiser who valued the property at $15.8 million as of 2009. 

The problem is that this new appraiser used an income-value method to arrive at this magic number.  This method was not only completely different from the method used by the experts from both sides at the 2003 trial; it was decried by Owners’ previous expert at trial as an invalid methodology. 

Owners did not dispute these points, but they submitted a supplemental affidavit from the appraiser stating that the value of the property had increased over the past nine years regardless of what analysis you used.  The Owners also submitted an unsigned, draft letter from another appraiser that indicated a rise in property values in the area over the past nine years.  Importantly, neither the first nor the second experts offered any corresponding opinion on the various values.  The first appraiser never offered his opinion as to the “income value” of the property in 2000, and neither appraiser offered a comparative sales analysis for the property in 2009.  This left the trial court with exactly one apple and one orange to compare.

Not unexpectedly, the trial court dismissed Owners’ Rule 60(b) motion without a hearing and without submitting the issue to the jury.  On appeal, Owners sought to reverse the trial court’s decision on the basis that the trial court dismissed the motion without a hearing, where Owners’ experts would have presumably flushed out their opinions and provided support for the dramatic ramp-up in prices that they claimed occurred over the past decade.  The SCOV is not sympathetic. 

While a Rule 60(b) motion usually trigger a hearing, the SCOV notes that the party must request such a hearing and one does not automatically follow.  In this case, the Owners’ motion did not specifically request a hearing, and the SCOV is unwilling to twist some of the implied and somewhat vague language regarding this issue into such a request. 

This proves fatal to Owners’ cause as the SCOV has no problem confirming the trial court’s conclusions that the filings were insufficient to establish grounds for relief under Rule 60(b). 

The trial court is affirmed and the odyssey ends with the District’s Ulysses in the arms of sandpit Penelope, and the people of Ithaca with somewhere to throw their Twinkie wrappers for the foreseeable future.  Only Hector, the poor Trojan, has to go home with his paltry $4 Million in compensation.

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