Sunday, December 20, 2015

Opioid-Addicted at Birth

In re M.M. and C.M., 2015 VT 122

By Donald M. Kreis

Cases generally reach and are decided by appellate courts at roughly the speed of molasses, so it is rare that a decision of the Supreme Court of Vermont speaks directly to the headlines of the day. But that’s exactly the case here, with respect to the epidemic of opioid and opiate abuse in Vermont and its effect on the most vulnerable among us—our children.

A boy, identified here only as C.M., was born on June 25, 2014, already dependent on opioids as the result of his mother’s prenatal abuse of Suboxone. In these times especially, it is only common sense that the state should take custody by adjudging the infant to be, in the parlance of Vermont law, CHINS—a child in need of supervision. Right?

At issue in the case are actually two children, C.M. and his older sister, M.M. Writing for a 4-1 majority, Justice Eaton affirms the trial court’s determination that both M.M. and C.M. were CHINS in light of undisputed evidence that mother had been in and out of drug treatment for nine years, had been kicked out of such a program at the time she became pregnant with the younger child, was purchasing Suboxone off the street, and had been convicted of driving while intoxicated in connection with one of two incidents in which police found mother driving M.M. around without required child-safety restraints.

Saturday, December 19, 2015

Pizza Payment Problems

Panagiotidis v. Galanis, 2015 VT 134

By Andrew Delaney

Mr. Galanis bought a pizza business from the Panagiotidises (hopefully that’s the correct way to pluralize—I’m stumped). Part of the deal was that Mr. Galanis pay rent so that the Panagiotidises could keep paying the mortgage on their building (where, as I’m sure you’ve already deduced, the pizza business was housed). Mmm . . . pizza.

Things were apparently fine for about nine months. Then, Mr. Galanis decided that he wasn’t thrilled with the deal. So he had his attorney send some letters seeking to renegotiate terms and Mr. Galanis started to have his attorney put the rent money into the attorney’s escrow account.

The Panagiotidises were not impressed with this turn of events. They filed suit to evict Mr. Galanis, got a default judgment, and a writ of possession. Mr. Galanis got the case reopened and filed a counterclaim. He argued that he was fraudulently induced into entering the agreement and the lease should be void. He alternatively argued that any breach was cured because he’d paid the rent into an escrow fund.

Monday, December 14, 2015

Annoying Does Not Equal Tortious

Weinstein v. Leonard, 2015 VT 136

By Elizabeth Kruska

This opinion, unfortunately, is a result of the intersection of the two things that apparently drive a huge percentage of Vermont jurisprudence: poorly-drafted land use documents, and neighbors who don’t like each other. I have never been in the inner offices of the Vermont Supreme Court, but I like to assume there’s a whiteboard hanging somewhere, showing a running tally of SCOV greatest hits. I imagine there’s a column marked “HOAs” and it’s got several marks below it, and is right next to the column marked “cases on probation conditions,” which has so many marks they had to start a new pen and/or continue onto the floor below.

Anyway, whatever. The Weinsteins (plaintiffs) own Lot 9 and Leonard and Sayour (defendants) own lot 10. The Weinstein Group is a third party defendant, which I’ll get to in a second, or in a few paragraphs.

The defendants decided they wanted to build a barn. The plaintiffs were apparently not hip to this idea. Defendants got a zoning permit to build. Plaintiff, because she’s a neighbor and she can do this, appealed to the Manchester development review board (DRB), and the permit was upheld. After the permit was upheld, there was some sort of, ah, interaction between Plaintiff and Defendant that involved Plaintiff shouting out a window, and also Plaintiff confronting Defendant(s) on their property and bringing a “very large dog.” Two things: I live in Vermont and am familiar with two Vermont phenomena—barns and big dogs. Part of me wishes this opinion also involved a Subaru to complete the Vermont trifecta. As a horseplayer I’d call it a Vermontfecta, which is a fun word but sort of offensive-looking in print.

Saturday, December 12, 2015

Problems with Pollution

Whitney v. Vermont Mutual Ins. Co., 2015 VT 140

By Andrew Delaney

If you’re not familiar with the total-pollution exclusion in insurance policies, click here for some background. As the SCOV notes, this is the second time this year that the SCOV is called on to interpret the total-pollution exclusion in an insurance policy.

The Whitneys are foster parents, and after a new DCF-initiated foster placement, noticed they had bedbugs. So, at DCF’s behest, a pest-control company came in and soaked the house in a banned chemical. “Chlorpyrifos is a toxin that can cause ‘nausea, dizziness, confusion, and, in very high exposures, respiratory paralysis and death.’” Yummy. The feds have banned it for residential use and the spraying “violated federal and state law.”

The Whitneys were concerned. They got in touch with the Vermont Department of Agriculture, which told them to stay out of the house until testing could be done. When the testing was done, the levels were 665 times the EPA-cleanup-required levels. The Whitneys haven’t been able to live in their house since April 2013.

Sunday, December 6, 2015

In Equity and In Estate

Simendinger v. Simendinger, 2015 VT 118

By Amy Davis

Husband and wife got married in May of 1987 and divorced in February of 2014. The divorce decree included a stipulation between the parties which ordered the husband to pay wife about $2.25 million—$50,000 within 30 days and the balance of $2.2 million within a year. Wife got her $50,000 but did not receive the balance and husband did not secure the unpaid amount in real estate.

In March 2014, after the 30 days had come and gone, wife filed a motion for contempt and enforcement, as well as a motion for attorney’s fees. The court scheduled a hearing date for August. Unfortunately, husband unexpectedly died on July 14, 2014. Wife filed a motion to substitute his estate.

In September, the family court denied the contempt motion but granted the motions for substitution and attorney’s fees. It also enjoined the estate from disposing of or encumbering any real estate held by the estate that could be used to pay the wife her $2.2 million. The husband’s estate appeals the injunction, the family court’s inclusion of “business properties” in that injunction, and the award of attorney’s fees.

Attorney’s Fees and Consumer Fraud

McKinstry v. Fecteau Residential Homes, Inc.2015 VT 125

By Thomas M. Kester

First, a lawyer joke:
A new client had just come in to see a famous lawyer. 
"Can you tell me how much you charge?” said the client. 
"Of course," the lawyer replied, "I charge $200 to answer three questions." 
"Well that's a bit steep, isn't it?" 
"Yes it is," said the lawyer, "And what's your third question?"
Lawyer's fees are always a fun conversation to have with potential clients. If a lawyer got a nickel every time someone balked at their hourly rate . . . let’s just say I will probably still die with law school debt in either case.

Lawyers and clients generally like it when a statute allows them to collect attorney's fees if they prevail, like the Consumer Protection Act (fun fact #1: under the “American rule,” traditionally, each side bears their own attorney’s fees unless otherwise stated). Let’s examine the case at hand.

Ruminations on Relevance

State v. Gotavaskas, 2015 VT 133

By Andrew Delaney

Two defendants. Different facts. Same issue.

Mr. Gotavaskas was charged with burglary in one case and providing false information and operation without the owner’s consent in another case. He raised the issue of his competency, was evaluated, and found competent to stand trial. During a competency hearing, the State tried to get the evaluation into evidence. Mr. Gotavaskas was like, “Whoa, whoa—only the relevant parts. Here’s a redacted version.” The State was like, “But, but, but . . . we want the whole thing.” The trial court went with Mr. Gotavaskas’s version.

Mr. Gotavaskas again raised the competency issue. This time, the evaluating doctor (same one as before) changed his tune and found Mr. Gotavaskas incompetent. Again, there was a hearing; and again, the defense tried to keep some of it out and the State asked for the whole enchilada. The report was filed under seal. Mr. Gotavaskas was found incompetent and the parties stipulated to issuance of an order of nonhospitalization. 

Saturday, December 5, 2015

Nothing to See Here

In re Christopher Sullivan, Esq., 2015 VT 141 (mem.)

By Andrew Delaney

Attorney Sullivan resigns from the practice of law and the SCOV therefore disbars him. That's it. Fin.

Sunday, November 29, 2015

Mama Tried

State v. Lucas, 2015 VT 92

By Jeffrey M. Messina

There are generally certain probation requirements placed on a defendant who enters into a deferred sentence. For those not "in-the-know," a deferred sentence is one where a defendant pleads guilty, then jumps through a series of court-imposed hoops for a predesignated amount of time, and upon successful completion of said hoop-jumping, has the charge(s) dismissed from his or her record. Some requirements are specific to the particular defendant while others are more or less universal. This case is an appeal from a trial court ruling finding that defendant violated two conditions of his probation, which resulted in the revocation of his deferred sentence.

The defendant in this case was charged with sending inappropriate pictures to the wrong audience. He pled guilty to a misdemeanor, accepting a deferred sentence for two years, with specific probation requirements relevant to this appeal, that: (1) required him to notify his probation officer within two days of a change of address; and, (2) that he could not change his address without the prior permission of his probation officer.

The State filed a probation violation against defendant based on these facts: defendant’s mother and probation officer (PO) played a bit of phone tag, but the initial call from mom was meant to tell the PO that her son had moved in with her. The PO subsequently investigated and approved the residence. After hearing, the trial court determined that that defendant moved to his mother’s home before PO approved the new residence. On such basis, the court denied defendant’s motion to dismiss, struck the deferred sentence and imposed a zero-to-one-year suspended sentence. 

Blurred Lines

In re Bove Demolition/Construction Application, 2015 VT 123

By Andrew Delaney

The Boves (father and son, I’m guessing from “Richard J. Bove, Sr.” and “Rick Bove”) own adjoining lots in Burlington and want to put a development on the combined lot. So what’s the problem?

Well, a zoning-district-boundary line runs right through the middle of things, and there’s supposed to be a fifteen-foot buffer between the zoning districts. The Boves applied for a permit to the Burlington development review board (DRB), which denied the application. The Boves appealed to the Superior Court, Environmental Division, which found that the merger of the lots eliminated the property line, but didn’t get rid of the zoning-district-boundary line.

As mentioned, the Boves own two adjoining parcels. One is fully within the downtown-transition district; one is fully within the residential-high-density district. This means that the zoning-district-boundary line is the same as the property line between the two parcels. The Boves propose to merge the parcels, eliminate the property line, demolish several existing buildings, and put in a single twenty-three-residential-units-and-one-commercial-unit development. There would be an edge of a building within the fifteen-foot-buffer zone.

Saturday, November 28, 2015

Messing with Future Plans

In re Petition of VTel Wireless Inc., 2015 VT 135

By Andrew Delaney

What do you do when someone else’s plans are going to mess with your plans? Is the future impact on your plans enough to put you in a position to stop the other’s plans? Of course "it depends." I hope you weren't expecting a straight answer.

Back in May 2014, VTel Wireless sent a statutorily required prefiling notice that it intended to seek a certificate of public good (CPG) for a planned telecommunication project in Bennington. The notice was sent to various agencies and all adjoining landowners. The idea was to bring high-speed wireless internet to unserved and underserved homes and businesses in the area. The proposed project consisted of a 90-foot cell tower (with attached antennas), a storage container on a concrete pad, and underground power lines.

Various illustrative aids and documentation were attached, which VTel claimed showed that the project would have a minimal aesthetic impact, and was compliant with town and regional plans and FCC regs.

Friday, November 27, 2015

A Divorce to be Reckoned With

Felis v. Downs Rachlin Martin, PLLC, 2015 VT 129

By Ember S. Tilton

Divorces are not fun.

But like many things, they can get worse. Mr. Felis sued his ex-wife's lawyers and an appraisal company after his divorce. Mr. Felis claimed that they racked up unnecessary bills and dragged things on just to take more of his money. There're so many lawyer jokes here, but I'm going to try to show some restraint.

The trial court in the divorce found the in-excess-of-one-million-dollars-in-fees incurred unreasonable, but still awarded some money from the marital estate to pay Mrs. Felis's legal fees and expenses for the appraisal work Gallagher Flynn & Company (GFC) did. Mr. Felis also claimed that Downs Rachlin Martin (DRM) submitted false sworn statements to the court to show Mrs. Felis's debt. Mr. Felis filed suit against DRM.

DRM filed a motion to dismiss. It asked the court to throw out the lawsuit because it was positively ridiculous. GFC went one step further and asked the court to "strike" portions of it pursuant to a Vermont law designed to protect people from vexatious litigation. This would involve removing certain allegations from the record. The trial court granted the motions to dismiss filed by both defendants but denied the motion to strike.

Boathouse Blowback

LeBlanc v. Snelgrove, 2015 VT 112

By Andrew Delaney

I’ve always thought that lakefront property is really nice. But from what I can gather from this case, it can be a giant pain in the arse.

Here’s the skinny on this little slice of heaven on Lake Memphremagog. Mr. LeBlanc (Dad or occupant) and his three kids are the neighbors and the plaintiffs. Mr. Snelgrove is the landowner and the defendant. At least that’s how the SCOV sets it up. I’m too lazy to reinvent the wheel here.

At any rate, there are these two closely related disputes. First, there’s Mr. Snelgrove’s replacement of his boathouse and construction of retaining walls that encroached on the neighbors’ property. There’re injunctions and trespass damages going on there. Second, there’s Dad’s vandalism of the disputed boathouse. 

Monday, November 23, 2015

Burden Shifting Tennis

Gauthier v. Keurig Green Mountain, Inc.2015 VT 108

By Elizabeth Kruska

I had completely forgotten about the three-part burden-shifting test from McDonnell Douglas v. Green until I read this opinion. Then I distinctly remembered being in first year constitutional law as a law student and reading the case. For those who went to Vermont Law School before the 2003ish renovation, you’ll recall that the Old Classroom Building, or OCB, as it was often called, had sort of a distinct musty smell. My con law class was in that building, and immediately memories of that musty smell came flooding back to my brain. It was a very Marcel Proust-type moment for me right there, except for a distinct lack of tea and madeleines.

In any case, McDonnell Douglas set forth a three-part test to be applied when a person alleges that an employment action was taken against him or her for discriminatory reasons. It goes like this: first, the employee has to make a prima facie case showing that there was a retaliatory action. Second, the burden shifts to the employer to show that there was a legitimate, non-discriminatory reason for the action. Third, the burden shifts back to the employee to show that actually that proffered non-discriminatory reason was actually just a mere pretext. It plays out like a tennis match of burden shifting.

Mr. Gauthier worked for Keurig Green Mountain, which used to be known simply as “Green Mountain.” Whether the company’s name will next be changed into an unpronounceable glyph or a reference to World Peace remains to be seen. Anyway, he worked for the coffee people in Waterbury doing maintenance on overnight shifts starting in May of 2007. He didn’t have his own computer for work, but he did have access to a computer and had a login name and password. According to Mr. Gauthier, sometimes he’d log in and then have to go do something, and when he’d return, would find his settings—including his desktop background picture—had changed. My desktop photo right now is one I took of American Pharoah; I’d be annoyed if someone came in and changed it to something else, but then I’d probably just change it back. I would know that someone did something to my computer while I wasn’t there. Along the lines of I think what Mr. Gauthier was trying to say, it would show that someone else was accessing his account.

Sunday, November 22, 2015

Termination Confusion

In re R.B., 2015 VT 100

By Elizabeth Kruska

I’ve spent the last couple years doing, among other things, lots of juvenile court cases. I’ve come to a few conclusions. First, juvenile cases are really hard; everybody really wants what’s best for kids. Getting to what’s best isn’t always easy, though. Second, the juvenile statutes are really complicated, which sometimes doesn’t reveal itself until a case is waist-deep in litigation and suddenly nobody knows what part of the statute applies (this happens more than you’d think). Third, because the proceedings are confidential and purely created by statute, it’s hard to understand context for opinions like the one in R.B.

Here’s the situation. Mom and Dad had three kids: R.B., O.B., and K.C. These kids are little, like under 8. It appears that R.B. might have had a different dad than the other two kids. Families can be a little complicated. Anyway, Mom and Dad apparently were on the radar of child services in Tennessee, where they lived in 2010. Then they moved to Vermont. In August of 2012, DCF filed a petition alleging the kids were in need of supervision (CHINS), and the parents stipulated to some facts to support that petition. Initially the kids were placed with their paternal grandmother, but were later placed with father’s cousin Kristin with a conditional custody order.

Here’s where stuff starts to get complicated. A conditional custody order (CCO) is an order from the court transferring custody from parents to someone else, but with conditions that must be fulfilled. It doesn’t remove or terminate a parent’s rights to the kids. Also, the kids are not in the custody of DCF. If kids are in DCF custody, DCF controls everything, including where kids are placed. It’s very possible that DCF could place kids with relatives – they do that all the time, and it’s generally how they like to do it. But it isn’t required, and sometimes there aren’t suitable relatives available to take kids for whatever reason. That’s how kids end up in foster homes. When there’s a CCO, DCF still has the ability to monitor the situation, but they don’t have custody. If something goes wrong in the CCO household, DCF has to take the situation back to court to have the judge issue a different order.

Saturday, November 21, 2015

Who's the Boss?

State v. Trowell, 2015 VT 96

By Andrew Delaney

The State certainly seems to think Mr. Trowell was in charge.

Mr. Trowell was convicted of one count of assault and robbery and one count of kidnapping. He argues that the trial court screwed up when it determined that he’d “opened the door” to certain cross-examination of a defense witness; that the trial court should’ve given his requested jury instructions; and that the trial court should’ve granted his motion for judgment of acquittal on the kidnapping charge.

Let’s look at how this all came about.

Mr. Trowell and his friend, Mr. Manning, encountered Ms. Moses at a grocery store. Mr. Trowell and Ms. Moses had met in the past. They quickly exchanged friendly greetings. Ms. Moses then went to the bus station to meet her fiancée, Ms. Tirrell.

Friday, November 20, 2015

Menacing Mortgages and Marital Distress: A Bona Fide Mismatch

EverBank v. Marini2015 VT 131

By Thomas M. Kester

If someone makes you an offer “you can't refuse,” you probably should take it unless you want something bad to happen (what ever happened to that Jimmy Hoffa guy by the way?). While most people have distress about their mortgages, they enter into them because houses are wicked expensive and it's not like houses grow on trees—well, not entirely at least.

Anyway, it’s one thing to sweat about your mortgage payments every month and another to make someone sweat about entering into a mortgage. The law doesn’t like it when one party uses high-pressure tactics on the other party when contracting (however, it brings in the ratings for The Bachelor, like when Chris ultimately chose Whitney over Becca—or so I’ve heard from a friend). However, duress can be raised as an affirmative defense to the enforcement of a contract if one party was coerced into contracting (kind of like annulling a “shotgun marriage” over the “shotgun” aspect).

In this case, Caroline (wife) was not interested in refinancing their home while Gary (husband) was all about it. Caroline believed it is was “financially unhealthy” and refused to sign any documents to that effect. Gary told Caroline that “he would mortgage the family home ‘whether [she] liked it or not,’ and regardless of whether she agreed,” and started the paperwork with LendingTree Loans in mid-March 2009. Caroline contacted LendingTree Loans and told them “she did not want the loan, that she and [Gary] were in marital counseling, and that the mortgage was ‘a very bad thing for [them].’” The loan officer advised Caroline not to sign anything but that the loan officer couldn’t do anything to stop Gary’s loan application.

Thursday, November 12, 2015

Criminal Conditions

State v. Putnam, 2015 VT 113

By Amy Davis

On a beautiful spring day in 2013, Defendant’s neighbor was driving along the dirt road to his house at a leisurely 10 m.p.h. with the music turned up and the windows rolled down—the perfect start to a country song. Just then, Defendant raced up behind him faster than Kyle Busch, pulled ahead of him, slammed on his brakes, and skidded down the road. Defendant got out of the car, yelling for the neighbor to turn down his music. For this, Defendant was charged with and convicted of grossly negligent operation and disorderly conduct.

Defendant appeals the court’s denial of his motion for judgment of acquittal. Defendant contends that the State needed to show that he “exercised no care due to others in a situation where there is great potential for immediate danger” and the State failed to do that. Under the applicable statute, gross negligence is a “gross deviation from the care that a reasonable person would have exercised in that situation.” Sometimes it’s hard to tell the difference between negligent operation and gross negligent operation, but even mere inattention can suffice for grossly negligent.

In this case, the court instructed the jury that the State needed to show that Defendant “disregarded a risk of injury or death” and the State rose to that challenge. If you pass on a narrow road, then turn your car sideways in said road causing another car to slam on its brakes to avoid hitting you, that’s gross negligence—so don’t do that. Defendant says, "Well I didn’t run him off the road or drive him into oncoming traffic, so it’s not that bad."  The SCOV says it is still bad and upholds the denial of Defendant’s motion for judgment of acquittal.

Wednesday, November 11, 2015

Striking Out

State v. Fucci, 2015 VT 39

By Timothy Fair

In honor of my hometown team making it to the World Series, this installment of SCOV Law is dedicated to our favorite perpetual underdogs, the N.Y. Mets

Today’s case involves a rather familiar issue for the Court: the validity of a plea agreement. The story begins with Mr. Fucci being involved in a civil lawsuit, but then takes a rather Grisham-esque turn. While the details of the original civil litigation are not available, one can assume that Mr. Fucci was not doing so well based on the allegation that at some point in the proceedings he decided to try and hire a hitman to take out a witness for the other side. 

Not the smartest play, because as it turns out, the hitman who Mr. Fucci attempted to hire was actually a confidential informant working for law enforcement. Next thing you know, Mr. Fuccifound himself behind in the count, charged with attempted first-degree murder and inciting to felony. The State eventually amended the charges, and Mr. Fucci eventually found himself facing two counts of inciting to felony and one count of obstruction of justice. On March 15, 2013, as part of a negotiated plea deal, Mr. Fucci pled guilty to one count of obstruction of justice and was sentenced to 10-15 years imprisonment. This appeal follows.

Saturday, November 7, 2015

Fault for Fire?

Terry v. O’Brien, 2015 VT 119

By Andrew Delaney

Back in the days of big hair and bad metal, the O’Briens bought a property in the Old North End of Burlington. The property included a two-story house and a brick building (“the creamery”) with a common wall. The creamery doesn’t have fixtures and has never been lived in. The O’Briens lived in the house for a year; then families in a refugee-resettlement program occupied the space for several years; then some family members lived there.

And then the plaintiffs moved in. The Terrys house was being foreclosed on, and the O’Briens let them move in and stay rent-free “for the time being.” Mr. O’Brien was an attorney and had represented members of the Terry family, including in the foreclosure proceedings, over the past fifteen years. After the first year in the property, the Terrys started paying monthly rent in an amount that varied over the years. Eventually, the relationship deteriorated due to the O’Briens’ unhappiness about the Terrys’ late or nonpayment of rent.

From 2005 to 2008, there were some code inspections, some violation citings, and some repairs. In November 2008, the O’Briens replaced the furnace with a big ol’ space heater on the first floor, but apparently it didn’t get enough heat to the second floor. So, the Terrys started using electric space heaters on the second floor at night.

Friday, November 6, 2015

Show Up

State v. Stanley, 2015 VT 117


Woody Allen is credited with having said that eighty percent of success is showing up. There are times when showing up isn’t all that important; you know, those things where you think, “meh, maybe I’ll go, maybe I won’t.” Then there are times when it’s super-important, like for your wedding or heart surgery. Also when you’re on trial for sexual assault. That’s an important time to show up.

But, a defendant is allowed to not show up for trial if he or she wants. Our rules of criminal procedure specifically say that defendants have to show, but that there is a procedure for waiving appearance. There are also times when appearance is impliedly waived.

Mr. Stanley was charged with sexual assault. The facts are not especially sympathetic here. The victim in the case was his own biological adult daughter. When she was a child she was adopted by a different family after having been placed in foster care. When she grew up she reconnected with Mr. Stanley and came to Vermont to visit him. One night she, her boyfriend, and he stayed up late talking. Eventually she fell asleep on the couch and awoke to Mr. Stanley sexually molesting her. She was understandably freaked out and went and sat in the bathroom, trying to figure out what to do. The next day she dropped off Mr. Stanley at a store and reported the incident to the police. She said she waited until the next day because she was scared.

Saturday, October 31, 2015

Where do we go now?

Moran v. Vermont State Retirement Board, 2015 VT 119

By Andrew Delaney

As has been said once or twice before, “The devil is in the details.” Not that we ever let that slow us down ‘round here.

No exciting facts in this one, folks. At some time there may’ve been, but we’re down to the vagaries of administrative law and appellate procedure at this point.

Ms. Moran stopped working at the Vermont State Hospital and applied for ordinary disability-retirement benefits. The Medical Review Board denied benefits, and Ms. Moran requested an evidentiary hearing (pursuant to this statute). The Board again denied benefits. Ms. Moran then filed a Rule 75 complaint in superior court (V.R.C.P. 75 is a rule that allows review of “governmental action” “if such review is otherwise available by law” when the situation doesn’t fit into other rules). The superior court dismissed the case for lack of jurisdiction. It concluded that Ms. Moran’s case was a “contested case” under the Vermont Administrative Procedure Act (VAPA), and that the proper forum for her appeal was the SCOV, due in part to this statute.

Thursday, October 29, 2015

Everybody Stand and Party: Understanding Standing and Party Status

In re Application of Beach Properties, Inc.2015 VT 130


By Thomas M. Kester

Everyone and everything enjoys fun in the sun—raisins, our bodies’ Vitamin D production, and solar panels. But to concerned lakefront owners, the sun can be the enemy—especially when it is being reflected from a photovoltaic net-metering system.

But this case doesn’t involve just sunshine and happiness; it involves party status and standing. You may be thinking of “party status” like asking your college roommate what is happening tonight at the local fraternity house or “standing” as in “am I going to be standing after taking all these Jell-O shots?” but you would be wrong (side note: the “bar examination” doesn’t involve knowing how to concoct alcoholic drinks either, in case you were wondering). Before getting to the issues, let’s recount the facts.

In August 2014, the Basin Harbor Club (BHC) applied for a certificate of public good (CPG) for installation of a solar metering system in Ferrisburgh, Vermont (I have always wondered if there is an opposite “certificate of public bad” you can apply for). The proposal was for twenty-five solar panels, about twenty-feet tall, and situated on one-and-a-half acres of a property bordered by the private Mile Point Road. 

Saturday, October 24, 2015

A Crash Course in Road Design and State Liability

Vanderbloom v. State of Vermont, Agency of Transportation, 2015 VT 103

By Thomas M. Kester

If two cars crash in the Town of Berlin and no one is around, does it make a sound? My guess is—probably (philosophical arguments aside). But is the State liable for allegedly negligent design and construction of the road?

The main thrust of the plaintiff’s case (the plaintiff being one of the people hurt in the car crash) is that the State “had a duty to exercise reasonable care in the design, construction, and maintenance of highways, including Route 63,” and that the State’s design created “freezeback.” I initially thought “freezeback” was one of powers Mr. Freeze had in the Batman & Robin movie. “Freezeback,” as it is known in the road-design arena, is the process where melted snow and ice refreeze in the “travel” portion of the road rather than flowing into the shoulder. Plaintiff asserts that the State gave the cold shoulder to the road shoulder when designing Route 63 and is liable.

It will be a cold day in hell when the State doesn’t assert some sort of sovereign immunity and they did just that in this case. The State asserted that they have sovereign immunity from “[a]ny claim arising from the selection of or purposeful deviation from a particular set of standards for the planning and design of highways” under the Vermont Tort Claims Act. The superior court agreed with the State, ruling that they were entitled to judgment as a matter of law on summary judgment. So, onto the appeal.

Riding the Bench

State v. Tracy, 2015 VT 111


By Ember S. Tilton

There are some words that shouldn't be said in certain places. Not everything that is permissible to say is advisable to say. 

This case  sets out what type of speech is protected and when speech goes too far. Mr. Tracy was upset with his daughter's basketball coach and wanted to speak to her after the game. His daughter didn't get to play and he wasn't too happy about it. So, he walked to the parking lot and up to the coach's car. He started with the simple questions, like: "Why didn't you play my daughter in the game?" 

The coach explained that what's best for the team isn't always what's best for an individual player. This did not please Mr. Tracy, and he became agitated. He got louder. His voice tensed and became more angry in tone. He began to use profanity and even told the coach, "This isn't the f*ing NBA!" Finally, he called her a "bitch" and the coach drove away saying, "This conversation is over!" and Mr. Tracy proclaimed for all to hear, "This will never be over!" Mr. Tracy was then charged with disorderly conduct and assault by menace. 

Tuesday, October 20, 2015

Construction Confusion

State v. Richland, 2015 VT 126

By Elizabeth Kruska

Back in 2013, a 16-year old got a hold of some gin, went for a ride on his ATV, crashed the ATV, and died. As it turns out, the minor had texted the defendant, Kent Richland, earlier in the day, asking Kent to get him some alcohol. Kent was going to do it, but couldn’t find his ID. So, Kent arranged for a friend of his to get the alcohol. After the crash Kent got charged with enabling the 16-year old’s consumption of alcohol. He had a trial and was found guilty.

Kent appealed the conviction, and made four different arguments about why the case should be remanded for a new trial. SCOV didn’t even get to three of his arguments, because as it turns out, the first argument was enough to cause SCOV to reverse and remand. It was about statutory construction and jury instructions, and that was enough for SCOV to say there was a problem and to send it back for a new trial.

The problem here is with how the statute is written, how it was amended, and what the legislature actually meant when it changed the statute. The statute says, in pertinent part, “no person shall… knowingly enable the consumption of malt or vinous beverages or spirituous liquors by a person under the age of 21.” Criminal acts are made up of a mental state and an action. Mens rea + prohibited activity = you better call Saul.

Sunday, October 18, 2015

Sure Thing?

Tillson v. Lane, 2015 VT 121

By Andrew Delaney

Summary judgment can be an abrupt end to a case. If it’s granted, you never get to see a jury; your case never really gets heard in court. A judge simply reviews the file and decides one way or another who wins. But sometimes, summary judgment is premature.

Mr. Tillson got a cataract in his left eye surgically removed by Dr. Lane. Mr. Tillson’s eye showed signs of infection within 24 hours. Dr. Lane presumptively diagnosed endopthalmitis but didn’t make a referral, and within 48 hours of the surgery, Mr. Tillson was permanently blind in his left eye.

So, Mr. and Mrs. Tillson filed a medical malpractice suit for pain and suffering, stress, medical bills, loss of consortium, and economic losses. They alleged that Dr. Lane and Lane Eye Associates “breached their duty of care by failing to ‘adequately and timely recognize, diagnose, and treat the infection.’”

Saturday, October 17, 2015

Coming Back for More

State v. Winters, 2015 VT 116

By Andrew Delaney

I’m usually pretty good about avoiding the really long opinions. It’s mostly because I’m lazy. And truth be told, this isn’t a really long opinion, but between the majority and the dissent, it does weigh in at 40 pages. So, you know . . . bear with me.

Mr. Winters was parked at a rest area sleeping in the driver’s seat of a vehicle at 1:00 in the mornin’. A woman with a suspended license owned the car. A state trooper was checking license plates and found that out. But the trooper didn’t confront Mr. Winters at that time.

The trooper went back to his cruiser and after a little more police-database digging learned that Mr. Winters—who also had a suspended license—lived at the same address as the suspended-license lady. So, the trooper woke Mr. Winters up and asked him why he was driving a car with a suspended license. Mr. Winters admitted it was his girlfriend’s car. He said he’d been driving and hit a deer, and busted a headlight, and a Massachusetts trooper had told him to park overnight at the rest area rather than drive with one headlight. He also said his girlfriend was going to pick him up in the morning. The trooper told Mr. Winters to “rack out” and took off.

Realistic Reliance

Glassford v. Dufresne & Associates, P.C., 2015 VT 77

By Elizabeth Kruska

Mr. and Mrs. Glassford bought a house from D&L Homes By Design (D&L), which appears to be a construction contractor. D&L hired Dufresne to certify that the sewage disposal system on the Glassford’s home site satisfied state law with respect to various permitting requirements. As I understand it, the rule says that a permit gets issued but doesn’t become valid until a wastewater disposal installer or licensed designer certifies that the wastewater system meets the plans and criteria.

In 2005, the Agency of Natural Resources issued a sewage disposal system construction permit for the Glassford site. Several months later, Dufresne certified that, in their professional judgment, the system fit the plans and it passed the performance tests. The Agency, satisfied with this certification, issued a notice indicating the permit conditions were satisfied.

A month or so later—in late December 2005, the Glassfords signed a purchase and sale agreement for the house. They never saw the actual certificate regarding the wastewater disposal permit. They hired a lawyer to help with the closing on the house. That lawyer did a certificate of title and included that the wastewater system was acceptable, as there was a permit and the certification from Dufresne. The closing moved forward and occurred on January 17, 2006.

Thursday, October 8, 2015

Among Other Things, A Signal

In re: M.O, Juvenile
2015 VT 120

By Elizabeth Kruska

M.O. was Mom’s first child, born when Mom was twenty-one. The opinion makes clear that Mom has some cognitive delays, and maybe also has a learning disorder. Before M.O. was born, she got services from a visiting nurse to help prepare for the baby. The nurse found that Mom was engaged in the preparation (Dad less so). The nurse, in hindsight, thought that maybe she should have called DCF before the baby was born so they could help with safety planning.

In any case, M.O. was born, and while Mom and the baby were in the hospital, the hospital social workers and nurses observed that Mom was having some difficulty with pretty basic things. Feeding, waking up when the baby cried, that sort of thing. The hospital workers, as mandated reporters, called DCF because they were concerned that there was a risk of harm to M.O. if there wasn’t some intervention. DCF stepped in and took M.O. into custody.

Wednesday, October 7, 2015

Grandma Got Run Over By Judicial Notice

In re: A.M., Juvenile
2015 VT 109
By Amy Davis

The fall of 2011 bore a child by the initials A.M. Unfortunately, A.M.’s parents struggled with going substance abuse, and the summer before A.M.’s second birthday, DCF filed a CHINS petition after an indication that A.M. was in a hotel room with Mom, Dad, and some heroin. A.M. was placed with his maternal grandmother pursuant to a temporary-care order.

In November 2013, A.M. was adjudicated CHINS based on his parents’ stipulation of their history of drug use.  But the big question was if Grandma was suitable to take care of A.M. given that she was not licensed as a foster parent.  Mom moved to transfer temporary custody to Grandma, and the court indicated it would maintain status quo until an evidentiary hearing.


Tuesday, October 6, 2015

Extraneous Email Effect?

Labate v. Rutland Hospital, Inc. d/b/a Rutland Regional Medical Center, 2015 VT 128

By Andrew Delaney

Juries are supposed to be free of outside influence. This appeal boils down to whether an email sent to hospital employees over the course of a trial influenced the jury. The trial court concluded that it did not and the SCOV concurs for the most part.

The Labates filed suit against Rutland Regional Medical Center (RRMC) (and related entities) and an individual doctor alleging medical malpractice associated with the birth of their daughter. Eventually, the case went to trial.

During voir dire—which translated from French means “to see to speak,” is pronounced differently all over the U.S., and just means “jury selection” but sounds a whole lot fancier—one of the prospective jurors disclosed that he worked for RRMC in security. He wasn’t kicked out of the jury pool by either side preemptively or for cause.

Wednesday, September 30, 2015

The Principal Principle



Every person who stands accused of a crime is entitled to a vigorous defense, no matter how horrible are the acts that person may have committed.  Standing firmly upon that heroic principle is the case of the notably unheroic Cherie Hyde.

There is no glossing over what Hyde did from 2003 to 2005, at least according to the facts as recited by the SCOV.  Hyde had a daughter, just ten years old in 2005.  She also had a 34-year-old male friend named who needed a place to stay on Sunday and Monday nights.  On numerous occasions Hyde had her friend bunk with the little girl, sharing her bed. Hyde routinely saw him in bed with her daughter as the mother closed the door to her daughter’s room.  The child would later tell her therapist that her mother had witnessed the man sexually molesting her on at least six different occasions.

Friday, September 18, 2015

Non-Attorney Representation

Michael Bandler, MB&Co, Ltd. a/k/a Michael Bandler & Company v. Cohen Rosenthal & Kramer, LLP, 2015 VT 115


Mr. Bandler (Bandler) is the sole shareholder of a corporation, Michael Bandler & Company. He’s not an attorney.

Sometime in 2003, Bandler and his company sued Charter One Bank due to some issues involving an account. As often happens with civil cases, there was arbitration, and the case went back and forth between arbitration and court a few times. At some point, the case headed to class-action arbitration.

In 2012, Bandler, on behalf of the company, signed a retainer agreement with Cohen Rosenthal & Kramer (CRK), which I assume is a law firm, agreeing that CRK would represent the company at the arbitration. It was unclear whether CRK also represented Bandler individually, and according to the opinion, this is a point of dispute. In any case, Bandler and the company sued CRK surrounding this representation.

Monday, September 7, 2015

Breath-Test Blowback

State v. Perley, 2015 VT 102

By Andrew Delaney

To blow or not to blow? For most DUI defendants that is the question. Mr. Perley decided not to.

Mr. Perley was handed a bouquet of charges stemming from his involvement in a car accident. Get it? That’s right—I’m a dork. Anyway, there was the car accident; Mr. Perley took off. Two hours or so later, he showed up at the courthouse in his father’s car. He showed signs of impairment. He was arrested at the courthouse. During processing, he refused a breath test. He was charged with leaving the scene of an accident, violating conditions of release, and operating with a suspended license; he pled no contest to those.

He was also charged with criminal refusal and DUI#3. On those two, he filed a motion to dismiss. The trial court reasoned that the DUI#3 wasn’t going to fly and tossed it, but the criminal refusal would stick. Mr. Perley was in an accident, he fled the scene, showed signs of intoxication when he was found, and therefore the police officer had a reasonable basis to request an evidentiary test. Basically, the deal is that if you have a prior DUI, and you refuse a law-enforcement officer’s reasonable request for an evidentiary test, you may be found guilty of criminal refusal.

Saturday, September 5, 2015

"Collapse," Coverage, Clarity?

Equinox on the Battenkill Management Assn., Inc. v. Philadelphia Indemnity Ins. Co., 2015 VT 98

By Andrew Delaney

The parties in this case have really long names, so we’re just gonna nickname them Equinox and Philly right from the get-go. Equinox manages a condominium complex—say that ten times fast—and Philly insures it. A number of the condo units have cantilevered balconies. I’d imagine they’re a little nicer-looking than (though as you’ll soon learn, perhaps not as sturdy as) the ones in the picture, but the selection of you-really-don’t-have-to-pay-to-use pictures on the interwebs isn’t limitless.

Anywho . . . the balconies had some issues. The 2012 policy pretty broadly excludes defective workmanship, but covers “collapse” under an “additional coverage” endorsement. Collapse is not defined save for a few exclusions. I could get into the specific language but then we’d be here all day and I have to mow the lawn. You can always read the opinion for that.

When Equinox started a deck-replacement program in 2007, it found structural problems “including water damage to sheathing and studs behind lower-level exterior clapboards and cracking in several exposed joists” in one unit, and similar problems in other units. So they strengthened the balconies on the outside, but they didn’t do any inside work. 

Monday, August 31, 2015

Round Two: Vote for SCOV Law!

Thanks to you fine folks, we made it to round two of the best legal blogs contest we were nominated for back in July.

Now that we've made round two, we need all of you to step up again and give us another interwebs click.

This panda wants you to vote for SCOV Law. Don't disappoint the panda.

Click here to vote for us unless you want the commies to win.

Sunday, August 23, 2015

Restitution Blues

State v. Vezina, 2015 VT 56

By Timothy Fair

The old adage goes, “Crime doesn't pay.” Well, as the petitioner learned here, not only doesn't it pay, it can actually get pretty expensive. As opposed to most appeals, petitioner does not dispute his guilt, or argue that the trial court failed to suppress some critical piece of evidence, nor does he challenge the competency of his attorney, the judge, the jury, or the sweet woman selling coffee on the first floor. Instead, the issue which brings us to the SCOV is cold, hard cash.

On Sept. 20, 2013, Mr. Vezina pled guilty to one count of petit larceny. The charge stemmed from the theft of seven pieces of musical equipment—from an avid collector of rare percussion instruments—the previous year. The plea agreement required, in part, that the defendant pay restitution to the owner of the stolen property. The agreement did not, however, specify the exact amount of restitution to be paid. A few things you need to understand before we go any farther: (a) In Vermont, statutes mandate that restitution be considered whenever a victim of a crime suffers a material loss—material loss is defined as any uninsured out-of-pocket monetary loss (often an insurance deductible), uninsured property loss, uninsured lost wages and uninsured medial expenses; and (b) SCOV case law has established that only easily ascertained and measured amounts are recoverable under the restitution statute. Damages that are not readily ascertainable, such as pain, trauma and emotional trauma are not recoverable as restitution. 

So, what happens when the State and a defendant disagree on the amount of restitution to be paid? A contested hearing!

Monday, August 17, 2015

Fair Enough?

In re Brown, 2015 VT 107

By Andrew Delaney

In civil procedure a Rule 11 violation generally means that a lawyer filed something of questionable (if any) merit. In criminal law, it generally means that the trial court screwed up a plea colloquy (a fancy-lawyer way to say “conversation”). So, both rules deal with screw-ups, though in vastly different areas. Civil procedure is a really, really important class in law school most lawyers-to-be sleep right through.

This case falls into the intersection of criminal and civil law, known as post-conviction-relief (PCR) land. It really has little to do with civil Rule 11, but it does have a lot to do with criminal Rule 11 and civil Rule 56. I know those aren’t proper citations and my law review brethren are probably losing their proverbial you-know-what right now, but I’m trying to make this easy to understand.

In 2003, Mr. Brown pled guilty to some heavy-duty offenses, including aggravated sexual assault of a minor and lewd and lascivious conduct with a minor. He agreed to “a five-to-fifteen-year split sentence, with two years to serve, as well as the imposition of sex-offender probation conditions.” The court accepted the guilty plea but held off on sentencing until a presentencing investigation (PSI) was completed.

D.O.C.N.O.V.O.P.

State v. Cavett, 2015 VT 91

By Jeffrey M. Messina

Most criminal defense attorneys get frustrated with the Department of Correction’s (DOC) apparently unfettered autonomy. Here's a case where the Vermont Supreme Court gives some power back to the trial courts.

This case comes on appeal of a superior court decision which concluded that Defendant violated a condition of his probation requiring him to complete the Vermont Treatment Program for Sexual Abusers (“VTPSA”). The trial court found Defendant failed to complete the program, though it refused to review the underlying disciplinary action taken by the DOC that resulted in removal from the program.

Defendant was charged with aggravated sexual assault and sentenced to a term of 5 to 15 years, all suspended except 4 to serve. At sentencing, the court imposed Condition 34, which states: "You shall participate fully in the [VTPSA] during the course of your suspended sentence. Failure to complete said program while incarcerated may result in a violation of your probation."

Good fences make good neighbors, unless only one person pays for them

Birchwood Land Co. Inc. v. Krizan, 2015 VT 37

By Jeffrey M. Messina

This case finds its way to SCOV's door on an appeal of a superior court decision denying plaintiff’s motion for attachment and granting defendant’s motion to dismiss for failure to state a claim.

Plaintiff Birchwood Land Company’s (“Birchwood”) complaint alleged that Defendant Krizan was unjustly enriched by Birchwood’s construction of an access road and other infrastructure to her property so she was able to develop the property without contributing to the cost of the improvements. We should all be so lucky.

Defendant purchased a vacant and landlocked parcel over 30 years ago. The deed to the parcel made reference to a recorded plat, so Defendant acquired an implied access easement over the portion of the adjacent parcel depicted on the plat (now owned by Birchwood) as a matter of law. (Until recently), this was the sole means of access to her property. Without frontage on a public road or access to utilities and other related infrastructure, the property was undevelopable and, importantly, in those 30 years of ownership, she made no effort to develop the property.

Clean-up Conundrum

In re Bilmar Team Cleaners, 2015 VT 10

By Jeffrey Messina

This case involves an appeal of the superior court’s decision to uphold the Burlington Board of Tax Appeals’(“Board”) appraisal of Taxpayer’s commercial property.

Taxpayer and her business partner purchased a commercial lot in 1987. In 1993, petroleum was discovered to be contaminating the property’s groundwater, likely due to leaky underground storage tanks from when the property was a gas station. In response, Taxpayer spent over $20,000 on various engineering studies and installed several wells to monitor the contamination. The Department of Environmental Conservation (DEC) requested an additional $10,000 of monitoring on the property before it would issue a “Site Management Activities Completed” designation for the property—indicating remediation efforts had come to a close. Instead, the property remains listed as an un-remediated petroleum pollution site due to an inability to pay for the additional monitoring or obtaining funds from the Vermont Petroleum Cleanup Fund (PCF). The PCF provides up to $990,000 in remediation costs once a property owner has paid the initial $10,000. Taxpayer did not believe the PCF was in her best interest, fearing that it would leave her liable for additional expenses if remediation costs exceeded the $990, 000 cap, or if the fund ran out of money.

As a result, Taxpayer held the position that the contamination rendered her property valueless, and failed to pay city property tax for many years.

Tuesday, August 11, 2015

Vote for SCOV Law!

From the shameless-self-promotion desk

SCOV Law has been nominated for this Best Legal Blogs contest. We work hard to keep you entertained, so if you would kindly click on the link and toss us a nomination, we'd appreciate it. Thanks!

Monday, August 10, 2015

Pythagoras’s Theorem After High School

State v. Wisowaty2015 VT 97

By Amy Davis

Exactly two years ago today, at 9:00 p.m., Wisowaty was riding his motorcycle on Dorset Street in South Burlington, in a 40 m.p.h. zone. Wisowaty was traveling southbound toward the Vermont National Country Club on his right. Peter Yee, driving a truck, prepared to turn left out of the country club to go north on Dorset Street. Yee testified that he looked both ways, but as he was halfway through the turn, he saw Wisowaty’s motorcycle headlight. Yee’s truck took up most of the southbound lane, so Wistowaty crossed into the northbound lane to avoid a collision. His attempt did not succeed and the two vehicles collided.

The State charged Wisowaty with operating a motor vehicle on a public highway in a negligent manner under this statute, and operating a motor vehicle at or above sixty miles per hour and at least thirty miles per hour in excess of the speed limit under this statute.

Wisowaty had a three-day bench trial with expert witness testimony, Wisowaty’s testimony, Yee’s testimony, and the State's and defendant's accident-reconstructionists' testimony. The judge found Wisowaty guilty on both charges, but did not rely entirely on either experts’ opinions. Instead, he took pieces of all of the data, did some of his own calculations, and decided that Wisowaty’s top speed was between 75 and 84 MPH. This mishmash factfinding is now challenged.

Sunday, August 9, 2015

Now, hold on just a second . . .

State v. Aiken, 2015 VT 99

By Andrew Delaney

Mr. Aiken was pulled over for speeding just before midnight. “The police sergeant observed that defendant’s eyes were bloodshot and watery, and he detected a faint odor of alcohol coming from inside defendant’s vehicle.” I like to imagine there’s a parrot at a police station somewhere going, “Brawk . . . bloodshot and watery . . . brawk . . . odor of alcohol.”

Anyway, Mr. Aiken admitted he’d consumed alcohol before driving. Preliminary breath and field sobriety tests indicated Mr. Aiken was on the tipsy side of legal, so he got a ride to the police barracks that he probably didn’t really want, but had to go on anyway. Mr. Aiken was told of his statutory right to counsel before taking the evidentiary breath test, which he thought sounded like a good idea. The sergeant called the on-call public defender, but didn’t get through. The sergeant was able to get the backup public defender on the line, handed the phone to Mr. Aiken, left the room, and turned off the audio on the recording.

Mr. Aiken tells it like this: he and the backup public defender exchanged pleasantries, after which the lawyer said “hold on” and placed Mr. Aiken on hold. Mr. Aiken then waited about ten minutes before he called the sergeant for help. The video feed seems to show Mr. Aiken not talking for about ten minutes.

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.