Saturday, February 27, 2016

Recondite Resolution

In re Willowell Found., 2016 VT 12

By Andrew Delaney

Yes, I used a thesaurus for the title. "Recondite" means "mysterious or obscure." It’s as close as I could get to "missing" and keep up my penchant for alliteration in titles. Don’t say we never teach you anything here. On to the story . . . .

So, somebody gets a permit and that makes the neighbors angry. That’s new, right?

The Willowell Foundation got a conditional-use permit “to build a community center and related improvements” on its 230ish-acre plot in Monkton. The plot is subject to Monkton’s Unified Planning Document (UPD), which combines the town’s zoning and subdivision regs. The plot is part of a subdivision, but apparently the approval resolution for the subdivision has disappeared, never to be seen again. At any rate, the plat outlines a “building envelope” on each lot. On Willowell’s plot, there’s an “agricultural reserve” that doesn’t appear to overlap with the “building envelope,” although the “building envelope” doesn’t appear to connect in at least one place—so it’s not a closed shape.

Willowell wants to put in “offices, a preschool with two classrooms, an art gallery, a multipurpose room, a library that incorporates an existing silo, a teaching kitchen, a farm stand, a garden, a farm-manager house, a relocated and rebuilt partially existing barn, a goat shed, two hoop houses, a widened existing access road, and a parking area.” Quite a bit of it is outside the building envelope. The farm-manager house, garden, septic system, and other infrastructure land in the “agricultural reserve.”

Saturday, February 20, 2016

Excuse Me, Did You Just Pass Gas . . . To Vermont?

State v. Atlantic Richfield Co., 2016 VT 22

By Thomas M. Kester

Every law student's favorite course (and I mean this sarcastically) is civil procedure. If you can imagine that a lawsuit is like a board game, then civil procedure is the rule book that nobody (save that one guy) likes to read. Reading the Rules of Civil Procedure is a bit like reading the dictionary—hardly anyone does it for fun. 

For a player to be a part of the game initially, the court must have personal jurisdiction and subject matter jurisdiction over that player (along with some other stuff ). If not, then they cannot play, cannot pass “GO,” and cannot collect $200.00. A lot of personal-jurisdiction questions come down to corporations arguing that they didn’t know (or couldn’t reasonably expect) that Product X it makes in State X would end up in State Y or that the connection between Product X and State Y is too tenuous to make a legitimate argument that it should be on notice of potential lawsuits.

First, I gotta drop some organic-chemistry knowledge on y’all: Methyl tert-butyl ether (“MTBE”) (and for you IUPAC nerds: 2-Methoxy-2-methylpropane) is a gasoline additive that raises the octane number. MTBE replaced tetraethyl lead in gas back in the late 70s (once someone realized that lead is a neurotoxin for humans) to reduce “knocking” in internal-combustion engines. What can happen is underground storage tanks begin to leak gasoline (with MTBE) into the soil. The problem with MTBE is that it likes to hang around as a ground pollutant, especially seeping into bodies of water and making drinking water taste funny. 

Compensation Litigation

Morisseau v. Hannaford Brothers, 2016 VT 17

By Amy E. Davis

This case is an appeal of the Commissioner of Labor’s decision to award summary judgment to the employer on whether the employer had to pay for voice-recognition technology, either as a vocational-rehabilitation benefit, or as a medical benefit.

In 2009, claimant worked for Hannaford as a baker, and for the Visiting Nurse Association as a personal care attendant, when she suffered a work-related injury to her right wrist. She had surgery and other treatment, but suffered a permanent impairment to her wrist, along with pain in her hand, wrist, and arm.

Claimant became eligible for voc rehab in 2011, and underwent a functional-capacity evaluation. Claimant was capable of full-time sedentary work with the right ergonomic equipment—one of those fancy split keyboards that do nothing but cause typos. Parties submitted a Return-to-Work Plan to the Department of Labor, which approved the plan. The idea was for claimant to work as a receptionist in a doctor’s or dentist’s office or as a customer-service rep somewhere. The employer was to provide work-readiness training, placement assistance, short-term computer skills training, software, and an ergonomic keyboard and mouse to support home practice. The plan included the possibility of additional assistive devices like voice-recognition software.

Monday, February 15, 2016

Prospective Permitting Puzzle

In re Treetop Development Co., 2016 VT 20

By Andrew Delaney

I am never buying a condo. Maybe they're great—I don't know. What I do know is that it seems like we have three primary case areas in Vermont: bail appeals, probation conditions, and condo disputes.

As the SCOV puts it, “This appeal is the latest chapter in an ongoing dispute between Treetop at Stratton Condominium Association” (Association) and four Stratton-affiliated companies (Stratton) over a stormwater-management system.

So, over a decade ago, the District 2 Environmental Commission issued an Act 250 permit to Stratton to build 25 three-unit townhouses, with necessary infrastructure, including a stormwater-management system. 

Friday, February 12, 2016

Three's A Crowd

McGee v. Gonyo2016 VT 8

By Thomas M. Kester

As a youngster, my daytime guilty pleasure was watching Jerry Springer and Maury Povich and the sensational, drama-fueled parental-DNA-testing pronouncements. I was always on the edge of the couch when the hush of the audience came on . . . as the envelope is torn open . . . the emphasis on “you ARE” and “you are NOT” the father rings out as the camera narrows in on the man’s face, and the audible gasping and cheering and bleeping that follows (“Jerry! Jerry! Jerry!#%&@*$!!!”). You would always hear the audience cheer when the man (although not the father) wanted to still remain in the child’s life and raise the child. So . . . is blood thicker than water?1 Can someone claim to be your biological parent without having a biological connection?

In May 2011, a baby girl was born. Plaintiff (mother) and Defendant (father) in June 2011 filed a Voluntary Acknowledgement of Parentage (“VAP”) with Department of Human Services (“DHS”). They both ascribed and swore that they were the “biological parents of the child” and the child’s birth certificate named both parties as the parents.

Thursday, February 11, 2016

Taxation Vexation

Adams v. Town of Sudbury, 2016 VT11

By Amy Davis

How do you tax a parcel of land that lies in more than one town? I like to think I might be able to come up with a way that involves less litigation and more common sense, but my job is to blog.

In this case, taxpayer owns three units in a condo community that lies in both Sudbury and Hubbardton. Taxpayer objects to Sudbury’s tax assessment and argues that the trial court erred in upholding the state law through which Sudbury did the tax assessment, the valuation of the portion within its boundaries, and Sudbury’s method of apportioning the tax burden among the condo owners.

The condo community—known as Wanee Villas and Resorts—consists of twenty-one individually owned units covering 26.9 acres. Two documents in the Sudbury land records (a 1978 covenant and a 1993 amendment) assign a percentage of ownership interest in the common land to each unit; state that each unit has a an easement to access the common land; and create a common-interest community and a condominium. Most of this land (including all of the privately owned units) lies in Hubbardton. Only 1.29 acres of common land lies in Sudbury. Three-hundred-eighty-five feet of that land is on Lake Hortina, which is more appealing to individually owned units. Taxpayer owns three units and a stake in Wanee Enterprises, which owns eleven units.

Sunday, February 7, 2016

Post-Probate Pickle

In re Estate of Holbrook, 2016 VT 13

By Andrew Delaney

One of my favorite Bill Burr lines is, “Daddy hides money in the wall because he doesn’t trust banks.” It’s a bit about what his hypothetical kids might say in school in response to a math problem. If you’re not easily offended, feel free to email me and I’ll send you a link to the entire bit. (You know it’s bad when we don’t link it directly here—you’ve been warned.)

Turns out here that Grandma Holbrook didn’t trust the banks very much either. But perhaps we’re getting ahead of ourselves.

Grandma Holbrook died in 2013. She was survived by six kids and seven grandkids.

In 2003, right before a surgery, she wrote a three-page letter titled “My Last Will & Testament” addressed “To all my children.” There’s a soap-opera joke just waiting to be made there, but we’ll skip it for brevity’s sake. The letter essentially said that if Grandma Holbrook didn’t make it through the surgery scheduled for the next day, she wanted things divided equally amongst the kids and grandkids. Grandma Holbrook did in fact survive her surgery and lived another ten years.

Saturday, February 6, 2016

Bail Revisited . . . Again

State v. Blow, 2015 VT 143 (mem.)

By Amy Davis

Here we are in the depths of bail troubles again. We’ve probably had more segments on bail than there are Harry Potter movies. We’ll call this one: Bail Problems & The Order of the SCOV. In this case, trial court denies bail to defendant in December 2014, and then denies home detention in October 2015.

Back in July 2014, the State charged defendant with second-degree murder. Defendant was arraigned and held without bail. The medical examiner opined that, while in defendant’s care, alleged victim A.H. died as a result of blunt impact injury to his head. Defendant admitted injuries, but gave some inconsistent statements on their cause—none of the stories explaining these types of injuries.

Another autopsy showed that A.H. got the injuries “days to weeks” prior to his death. However, the medical examiner could not determine if the injuries happened in one or multiple events, so the State filed a motion to review bail and probable cause. The trial court held that probable cause still existed even though it was “literally paper thin” and found that the State probably wouldn’t survive a motion to dismiss under 12(d). Based on the weak case, the court set bail at $25,000 and imposed conditions of release.

Monday, February 1, 2016

Connecting The Dots

In re JC, 2016 VT 9

By Elizabeth Kruska

SCOV ventures back into the wilds of juvie-land with this opinion. Here are the important people: Mom, Dad, KP, JC, and TF. JC is Mom’s child. TF is the child of Mom and Dad. KP is Dad’s child. All three kids, at the time of this case, were under the age of seven. They all live together in what is described as sort of a chaotic household. That’s probably for lots of reasons, but I’m guessing having 60% of a household in first grade or less is a contributing factor.

DCF filed a CHINS petition on JC and TF. There was a separate CHINS case with respect to KP, but that’s not the focus of this particular opinion. DCF got a report from a Head Start provider who came to do a home visit. The report said that Mom was stressed and agitated during some visits, and was cruel to KP. She said she wanted to paddle KP until she bled. She talked about not giving KP something to drink for days because KP was “stealing food from the refrigerator.” In short, things were not good with Mom and KP.

So, based on these observations, there was a CHINS petition filed with respect to the other kids in the home. There was a trial with testimony, and at the end the judge found that JC and TF were in need of care and supervision. The trial judge based its findings in part on Mom’s treatment of KP, and concluded that her treatment of KP led to a risk of harm to the other two children. There was also other evidence of Mom’s overall state of being stressed out and overwhelmed with the kids. There was also evidence that Dad had some substance abuse struggles; it doesn’t appear, though, that Dad was a big factor in the findings in this case. There was testimony about Mom putting JC on the couch, and doing it too forcefully.