Thursday, August 22, 2013

Out from Beneath the Sword

In re McCarty, 2013 VT 47

Cicero did not specify how long the proverbial sword hung by a thread of a single horse-hair over the head of Damocles, but it surely was not the nearly 12 years it took to resolve today’s case.

On the other hand, Damocles was just an obsequious courtier in ancient Syracuse who thought it would be fun to occupy the king’s throne, in all its sybaritic glory, regardless of what dangled overhead.  In contrast, this is a disciplinary proceeding involving an attorney whose conduct of August 17, 2001 produced enduring misery for all involved.

The underlying events involved a landlord-tenant dispute.  But regardless of the nature of the controversy, from a purely literary standpoint you know you are in for an unusually compelling read when a quick scan of an appellate opinion reveals this concise sentence:  “Chaos ensued.”

Wetland Woes

ANR v. Persons, 2013 VT 46

When the SCOV classifies the basis of your appeal as being “for a host of reasons” it’s not necessarily a good thing. 

Defendants here are a landowner and the Trust “A” of that landowner.  Without getting too far into the nitty-gritty details regarding ownership, sales, and so on, there was a 152-acre plot of farmland, which was subdivided into seven lots.  This case involves three of the lots—two of which are owned by a non-party—because the landowner replaced a water line that went through all three.   

There is a Class II wetland located on the lot owned by the Trust, and wet soils on the other two lots abut the wetland.  When the land was first subdivided in the late 1990s, landowner got in a little hot water (pun totally intended) for excavating and filling within the wetland and its buffer zone.  He eventually admitted to violations of applicable wetlands-protection laws and entered an assurance of discontinuance with the Agency on Natural Resources (ANR). 

Flash forward several years, when the owner of the other lots learns of the administrative order against landowner . . . he contacts ANR’s Waterbury office to ask about what excavation he, the neighbor, can do to prepare his lots for sale.  He also asked whether there were any outstanding requirements from the 2001 assurance of discontinuance that required attention.  

So ANR officials come a-callin’.  They determine that the wet soils constitute an additional wetland as evidenced by the surrounding vegetation, soil, and hydrology.  They also note that landowner had recently cleared a swath of trees and excavated soils from a strip of land that cut across the three lots to replace a damaged water line that supplied water to the Trust-owned lot. 

Get a Room

In re Beliveau NOV, 2013 VT 41

One of the pleasures of practicing law is the opportunity to argue for what we like to call a “good faith extension of the law.”  In practice, this occasionally translates to “weasel out of it however you can, even if all you’ve got is a misshapen club legal foot to stand on.”  Today’s homeowner-petitioner to the SCOV may not have more than a spider’s filament on which to rest his argument, but I’d give him a high five for creativity.

Beginning in 2008, homeowner began renting out rooms in his home in Fairfax, where he lived, for a flexible monthly fee.  The Town of Fairfax caught wind in May of 2008, and issued a citation to homeowner for converting his single-family home to a rooming-and-boarding house without a permit.  The Town gave him a choice: get a permit and Town approval, or quit it.  He chose Option C: ignore them.

The Fairfax Zoning Bylaws define a boarding house with a one-two-three test: 1) a home occupied by the owner; 2) where people are provided with and charged for meals and/or sleeping accommodations; and 3) for a fixed period of time.

The Zoning Administrator turned the citation into a formal notice of violation (or “NOV”).  Homeowner appealed to the Fairfax Development Review Board.  The Board found homeowner had changed the use of his home to a boarding house, without a permit.  Homeowner appealed to the environmental court.

How Things Are Holding Up

In re Wood NOV, 2013 VT 40

We’ve all been there: you just want to get something done, then you run into bumps along the way and everything takes a little longer than you expected.  And we all know the saying, “if at first you don’t succeed, try, try again.”  However, it is a little known fact that this is only an abbreviated version of the adage, like Emerson’s quote on consistency.  Today’s case illustrates, that the saying should actual go: “if at first you don’t succeed, try, try again . . . .  Then, at a certain point, cut your losses and quit!  Your call when, but definitely not ten!

Bear with me.

This case arises from a decade-long dispute between the Town of Hartford and a landowner concerning two parcels of land.  It all started when landowner decided to level a portion of the property in order to increase the amount of developable land.  To this end, landowner hired an engineer to design a 35-foot, concrete retaining wall.  The engineer provided detailed specifications for the wall, which landowner then submitted as part of his proposal to the Town.  Based on that design, the Town approved the application and issued a permit, upon the condition that the engineer would later certify that the wall was constructed in accordance with the approved design.