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 Permit2014 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.

Turn! Turn! Turn! (To Every Roadway There Is a Natural Course)

State v. Hutchins, 2015 VT 38

By Christopher A. Davis

The SCOV presents a question at the outset of this case: Do all turns require a turn signal? As its subsequent analysis makes clear, however, the better question in this instance is: Are all turns actually turns? The answer, says the High Court, is no.

What can I say? If you don’t want your mind blown, best watch the sky for the SCOV knowledge-bomber, and take shelter. Duck and cover, son. Duck and cover.

The catalyst for this intellectual exploration is Mr. Hutchins, who was observed by two law enforcement officers to be operating a motor vehicle on Park Street in Brandon, Vermont. He piqued their interest when they ran the plates of his vehicle—this is legal—and discovered one of the registered owners of the vehicle had a suspended license. Mr. Hutchins stopped at a stop sign at the intersection of Park Street, Country Club Road, and Smalley Road, activated his right-turn signal, and then proceeded across Country Club Road onto Smalley Road. 

Limited Condition

State v. Bostwick, 2014 VT 97

By Ember S. Tilton

In this probation violation case, the SCOV continues to search for that elusive perfect condition of probation that will stand up to legal challenges and be clear to judges, defendants and probationers alike. Again, the Court fails to find it in the language, "You shall reside where your supervising probation officer directs."

See, simply by way of background, defendant was charged with violating the condition before he was released from jail. Yeah, that's right. 

You must live where your probation officer directs—even when you are incarcerated. How does that work!?! Well, the trial judge, being the curious yet practical type, wanted to know too. The State argued that he was getting close to his release date and had not found suitable housing. The trial judge was understandably not convinced and dismissed the violation complaint. SCOV does not have any issue with this ruling or comment further on it. So why do they even mention it? My humble guess would be this is just setting the stage to show how bad this probation officer (PO) was trying to violate Mr. Bostwick. The PO couldn't even wait for this guy to be put on probation to violate him. He filed a preemptive violation. Harsh.

Saturday, July 18, 2015

Derivative Disability Dollars Deux

LaMothe v. LeBlanc, 2015 VT 78

By Andrew Delaney

We’ve talked about this case before, though it’s been a few years. Though there's already been one reversal, things have not changed a whole lot. This  is a parentage case that’s gone through a few permutations. The bottom line is that dad still wants mom to pay him.

Originally, mom and dad agreed that mom would have the kid most of the time and dad would pay child support. Then dad got in a motorcycle accident, became disabled, and they agreed neither would pay child support. Then—because mom was the kid’s representative payee and dad got a substantial retroactive benefit payment from social security—mom got a substantial derivative lump-sum benefit payment from social security. She continues to get a monthly payment to child through dad’s disability.

Dad filed a motion asking for mom to pay him child support from the derivative monthly payment, and to apply the lump-sum payment to his share of the kid’s braces. He also asked the family division to impute income to mom. The trial court denied the motion in its entirety, and dad appealed. The SCOV reversed, holding that without a deviation, dad was entitled to child support in an amount equal to the derivative-benefit payment minus his guideline-based child-support obligation. The SCOV also said to apply the lump-sum to dad’s share of the uninsured dental expenses. The SCOV said that the decision not to impute income to mom was fine though.

Friday, July 17, 2015

Another Day, Another Dollar Store

In re Zaremba Group Act 250 Permit, 2015 VT 88

By Elizabeth Kruska

Chester is a lovely town in southern Windsor County. It’s got a pretty downtown with New England buildings and homes. The Zaremba Group has a 10 acre plot of land about half a mile outside the village center, and wanted to build a Dollar General store on that plot of land. It’s outside the historic downtown district, sort of heading out of town. Or, maybe into town, depending on which way you’re going. The neighborhood has some woods, but also has buildings you would expect to see on the outskirts of town, like a gas station/convenience store, a church, an American Legion building, and a self-storage place. If this is where I think it is, I think I’ve been to a wedding reception at that American Legion building. While I don’t remember all the buildings in the neighborhood, necessarily, I certainly remember that the cake was crème brulee-flavored, and it was delicious. I also wore peacock blue sandals that I like very much and should really wear more often.

In any case, the Zaremba group decided they wanted to build a new Dollar General store on their 10 acres. The proposed building design is so that the building looks like a barn with a cupola sort of toward the front of the center of the roof. There are faux windows on the front, but no actual windows on the sides. The way it’s described, it sounds like a big box store sort of dressed up a little bit to look like a New England barn.

Thursday, July 16, 2015

Sentencing Surprise

State v. Delisle, 2015 VT 76

By Elizabeth Kruska

Mr. Delisle and his associate, Mr. Lacross, burgled a house in Enosburg, where they assaulted someone and stole some prescription drugs. Mr. Delisle pled guilty to the charge and wanted to have a sentencing hearing. Before the hearing, a pre-sentencing investigation was done and filed with the court. The hearing was held, evidence was presented, and the court imposed a sentence of 10-20 years to serve.

Here’s the problem. During the hearing, the trial judge mentioned that he also heard the co-defendant’s case, and was pretty familiar with the facts. The trial judge disagreed with evidence presented in Mr. Delisle’s hearing because he thought it didn’t exactly coincide with his view of the evidence as presented in Mr. Lacross’s hearing. Mr. Delisle presented a psychologist who said he was a follower, not a leader. The judge said he didn’t think that was the case due to things he learned in Mr. Lacross’s hearing.

Nobody knew the judge was going to do that. Mr. Delisle didn’t have notice that the judge was going to use information he used from the Lacross hearing, and he certainly didn’t have time to prepare a response. So, Mr. Delisle appealed.

Workin’ At The Carwash

In re Appeal of MDY Taxes, Inc. and Village Car Wash, Inc., 2015 VT 65

By Elizabeth Kruska

We’ve got a gas station (Jolley) and we’ve got some neighbors—MDY and Village Car Wash. Jolley owns a gas station, and not far from the gas station, in an adjacent parking lot is MDY’s H & R Block Tax Office and Village’s car wash.

Jolley filed a permit application so it could change its then-existing setup to remove some diesel pumps and to add a drive-through car wash. The town’s review board (DRB) published a notice in the local paper saying this would be up for review at a public meeting. It was also posted on a bulletin board and on the town’s website. The meeting was held and there was discussion about the plan. Neither MDY nor Village attended or participated in the meeting. At the meeting it was determined that although car washes generally aren’t allowed in that particular district, it might be okay if they did a planned-unit development (PUD). The board considered the application as a PUD and approved it.

About a month and a half later, MDY and Village appealed the town’s decision to the Environmental Court. They asked for party status. Jolley objected to their appeal and their request to become parties. The Environmental Court determined that MDY and Village couldn’t be parties, and because they couldn’t be parties, they didn’t have standing to object, so the matter was dismissed.

Sprechen Sie Vermont Residency Requirements?

Gosbee v. Gosbee, 2015 VT 82

By Thomas M. Kester

Wieviel Uhr ist es? (translation: what time is it?) Time to learn about Vermont’s residency requirements for filing divorce actions. This case involves a couple who globetrotted between Vermont and Germany. And while “home is where the heart is,” that argument won’t fly with the Vermont Supreme Court, especially when factual circumstances point you to living elsewhere. Grab some schnitzel, a wurst, and let’s get this summary rolling like a
Panzerkampfwagen VI Tiger I.

Mom and Dad lived together starting in 2005 in Berlin, Vermont. In 2007, they moved to East Montpelier, and in 2009 their child was born. In October 2010 the parties decided to say Auf Wiedersehen to Vermont and Guten Tag to Germany. As the trial court found, “their hope was to return to the United States when they had saved enough money for a down payment on a house. The parties never intended to relocate to Germany or another foreign country on a permanent basis.” Sounds like a pretty simple plan. But like all simple plans, there are little glitches that get in the way.

Prejudice Problems

State v. Madigan, 2015 VT 59

By Elizabeth Kruska

Prejudice. I wrote a post about it. Wanna read it? Here it goes.

When I’m talking prejudice in this sense, I’m talking about rules-of-evidence-type prejudice. The kind that results when juries hear inflammatory evidence that makes them decide cases not based on the facts of the case, but based on that inflammatory information. If a jury hears a case about a defendant where the evidence is shaky, but then hears that the defendant is a hundred and twelve different kinds of irrelevant bad, they might just convict based on the irrelevant bad. “I didn’t think he was guilty but then I learned he kicked a puppy when he was in grade school. He should fry.” That kind of thing. (Which, by the by, I do not condone kicking puppies.)

SCOV found that all the sins of the prosecutor in this particular case were too prejudicial, and reversed.

Sunday, July 12, 2015

Who's Covered Here? Round Two!

Hemond v. Frontier Communications of America, Inc., 2015 VT 67

By Andrew Delaney

Stop me if you’ve heard this one before . . . corporation gets sued along with some other codefendants, so it argues that the codefendants are really at fault and should foot the bill. If this sounds like the same summary we wrote last week, it’s because it’s pretty much the same case (in fact, it’s the exact same underlying case), with almost the same issues.

As we explained last week, indemnification is a fancy legal term that essentially means “pick up the tab.” Express indemnification means there’s an agreement ahead of time; implied indemnification applies when it’s “only fair” to make a particular entity foot the bill.

Plaintiff and his wife sued Frontier and a number of other entities after he “suffered a tragic electrocution injury while working on an electrical switch.” The switch that injured Mr. Hemond wasn’t properly installed or grounded by the time he was told to open it and he was injured severely by an electrical arc. So they sued for “negligence in the design, manufacture, installation, and construction of the Richford substation, and of the switch in particular.” Frontier owned the equipment. You can read about the factual basis here. Relevant to this particular appeal, Stantec Consulting, Inc. provided consulting services to Frontier in connection with the reconstruction of the Richford substation; Turner Electric Corporation manufactured the switch; and Graybar Electric Company distributed the switch. 

A Probationer Doesn’t Kiss and Tell

State v. Galanes2015 VT 80

By Thomas M. Kester

The fact pattern of this case reads a bit like Romeo and Juliet, or for the more contemporary, like a Fifty Shades of Grey novel (but better written) and is filled with lovers' trysts and forbidden acts. This case pushes the notion of whether “A rose by any other name would smell as sweet” when it comes to interpreting “sexual or romantic relationships” under Vermont law.

Defendant was convicted of several felony and misdemeanor offenses and, after two separate probation violations, he had his conditions regarding sexual relationships tightened. Condition 45 (a.k.a. the “chastity belt” condition) states:
You must inform your [probation officer] of the name and contact information of any person with whom you are planning to have a date or with whom you are planning to begin a dating, sexual or romantic relationship, prior to the date or beginning of the relationship.
I'd imagine nothing is sexier to a woman than you having to tell your probation officer that you have the hots for herforget “Facebook-official” relationships; you now have “Probation-Officer-official” relationships. I can only imagine how weird the Tinder conversations might be (“I want you to save that thought because I gotta go tell my probation officer about itbrb”). 

Thursday, July 9, 2015

This is The Pits

In Re: Application of Lathrop (I, II, III), 2015 VT 49

By Elizabeth Kruska

This case is really long and really complicated. Bear with me.

When I think of Bristol, I think of it as a lovely town with a great brewery that serves possibly the best burger in the state (other than this one, this one, and this one). And this is where I admit pretty publicly that I love a good cheeseburger. Note any other top burger contenders in the comments and I’ll happily go eat them.) I also once picked cherries, raspberries, and blueberries there all on the same day. Bristol is tasty.

Bristol also is apparently perfectly suited, geologically-speaking, for quarrying sand and gravel. And that’s where the Lathrops come in. The appeal here combines 6 issues (none of which have to do with cheeseburgers), and consolidates three separate dockets from the Environmental Court. It’s probably easiest if I try to break each down separately.

Neighbors: The Root of All Evil?

Alvarez v. Katz, 2015 VT 86

By Thomas M. Kester

This case boils down to a tree—but not just any tree—a sixty-five-year-old maple tree located on the Alvarez property. Berger and Katz  want to do some construction but the construction will require cutting into half of the tree’s roots. Alvarez is all like, “Hey man, save the trees” while Katz is like, “Tttimmmbbbeeerrrrr.” 

At any rate, let’s get to the "root" of the case.

Katz and Alvarez are neighbors in South Burlington in the Shelburne Bay area. So, the entire tree sits on Alvarez’s property but the trunk is about two feet from Katz and Berger’s property. The tree decided that “the grass was greener” on the Katz and Berger side and half of its branches and roots grew over (and under) the property line. Dumb move for the tree because Katz and Berger now want to expand their house and the expansion will require cutting into the roots.

Saturday, July 4, 2015

Who's Covered Here?

Hemond v. Frontier Communications, Inc., 2015 VT 66

By Andrew Delaney

This appeal is about indemnification. Indemnification can be express or implied. I think of express indemnification as a formal agreement to “pick up the tab.” It’s like two buddies decide to go out for dinner, but before they leave, they write up a formal agreement that says one of them is going to pay for the meal, the tip, parking fees, and anything else associated with the meal. The buddy who agrees to pay ahead of time is expressly indemnifying the other. Implied indemnification would be like when one of the buddies invites the other out, picks the restaurant, orders filet mignon and a dozen drinks, and brags about what a financially productive week last week was.

This is a dispute between two defendants—Frontier Communications, Inc. and Navigant Consulting Group, Inc.—in a case “arising after plaintiff Michael Hemond suffered a tragic electrocution injury while working on an electrical switch.” Frontier owned the equipment. Navigant was a consultant. Navigant was hired to help Frontier get a certificate of public good, and provided testimony at the Public Service Board (PSB) about how an upgrade plan—which is what plaintiff was working on when he was injured—would be a good thing for Frontier’s customers. (You can read about the underlying facts here.)

The switch that injured Mr. Hemond wasn’t properly installed or grounded by the time he was told to open it and he was injured severely by an electrical arc. He and his wife sued Frontier and Navigant, among others, for “negligence in the design, manufacture, installation, and construction of the Richford substation, and of the switch in particular.”

Wednesday, July 1, 2015

Custody Considerations

Frazer v. Olson, 2015 VT 84

By Elizabeth Kruska

Ms. Frazer (Mom) and Mr. Olson (Dad) were married in 2000, had 2 kids, and separated in 2011. They filed for divorce in April of 2013, and the final divorce hearing happened over the course of a couple days in late 2013 and early 2014. Early on they had a hearing where the magistrate created a temporary order awarding parental rights and responsibilities to Mom. Dad had time with the kids after school a few days a week and overnight on Fridays. The magistrate made findings in the case and issued the temporary order. There’s a statute that sets forth various factors a court is supposed to consider in determining where kids should be; the magistrate took the evidence and made findings consistent with that statute. One of the things the magistrate found was that Mom was the primary caretaker for the kids.

The final hearing rolled around, this time before the Family Court judge. The Family Court judge saw things a little bit differently than did the magistrate. Nevertheless, she still awarded sole parental rights and responsibilities to mom, and made a visitation schedule for dad.

Mom appeals.