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By: Elizabeth Kruska
We here at HQ got a little behind. We’ve got 3 fairly dense opinions in the last two weeks. It’s dark and we’re wearing sunglasses. Wait, no, that’s someone else. Anyway, let’s start off with Land Use Review Board (LURB) v. 3643 VT Route 103, N, LLC et al, 2026 VT 39.
This is an Act 250 permit case. Briefly, there is/was a quarry in Chester called Chandler Quarry. It’s been in operation for many years – since before Act 250. Because it preceded the existence of the act, it wasn’t required to have permits under Act 250. Business was booming (get it? Dynamite joke) and the owners of Chandler bought some other quarries down the street, referred to a the North Quarry and South Quarry. The owner decided to consolidate quarrying operations by taking stone out of North and South and finishing it down the road at Chandler. They bought equipment, and built a building and had lots of employees. They worked seven days a week.
This seems great. Except the neighbors didn’t love the increased with traffic and noise related to increased quarrying and stone production. They went to the Natural Resources Board to find out if there was a permit for this expanded operation. Spoiler alert: there wasn’t. An opinion was issued saying they needed a permit. The landowner appealed, and the Environmental Division affirmed the lower ruling, saying that the expanded operations were a substantial change and needed a permit.
Then the Land Use Review Board (formerly known as the Natural Resources Board) issued an order saying the landowners violated Act 250, imposed a big fine, and ordered operations to cease. The landowner asked for a hearing and also cut its operations to earlier levels. They also terminated most of their staff. The landowners appealed.
SCOV affirms. First, they review whether there was Act 250 jurisdiction. The landowners argued because they didn’t originally need a permit at Chandler, the act of reducing their work to earlier levels should do the trick. SCOV says no. The increase and change of work at Chandler made it such that a permit was needed. Earth extraction operations also include reclamation issues, so they need to get a permit.
Next they turn to the stop-work order. An administrative order requiring a business to stop work until a permit is issued must also include an analysis of the economic impact of such an order. The landowners argue there was no attempt to ameliorate the economic impact before issuing the stop-work order. SCOV points out this is reviewed only for an abuse of discretion and finds that the Environmental Division did not abuse its discretion. SCOV notes that the landowner could have applied for an Act 250 permit and worked to prevent the harm.
So – SCOV affirms the LURB.
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Up next is Bourdeau Bros., Inc., v. Melissa St. Pierre and Jason St. Pierre, 2026 VT 38. We started with stones and now we move on to cows. This is a very Vermont week here at HQ.
This case involves a divorce and a novation of a contract. Ultimately SCOV reverses this and sends it back to the trial court to sort out a breach of contract claim.
The St. Pierres – Melissa and Jason – were married. They owned and operated a dairy farm. Dairy farms involve cows, and cows need to eat. A lot. Melissa and Jason bought grain from Bourdeau (BBI) to feed the cows. Jason and Melissa were both on the original credit application for BBI. Often they’d order grain on credit, it would be delivered, and they’d make small payments. If the debt balance got too big, they’d make a big payment to bring down the balance.
They split up in 2018. They took out a separate loan to pay down the then-existing BBI balance, but going forward from there the farm expenses were all on Jason. Melissa had nothing to do with the farm. BBI knew they split, and Jason made a deal that he’d make payments but not pay off the full balance until the divorce was final. He’d take out loans or sell some equipment to satisfy his debt at that point. They moved forward and so did the debt. At one point they created a “credit account” for Jason and he put $18,000 into it. At his divorce hearing they reflected a debt of over $90,000 but said nothing about the credit account. (uh oh!) After the hearing but before there was a final order, Jason unexpectedly died. Melissa inherited the farm. She sold the equipment and cattle. Four days after he died BBI sued Melissa for the debt.
Motions for summary judgment were filed by both sides, part of which was granted and part wasn’t. Essentially, the court ruled that Melissa had the benefit of a novation. That is, she was let out of the contract so she shouldn’t be on the hook for Jason’s debt. This felt inconsistent, though, because the document she initially signed was a credit application, and it wasn’t even clear that it rose to the level of being a contract at all. Was there a contract or not, and if so, was there a novation? Melissa also argued BBI had unclean hands since it helped Jason to conceal some assets during the divorce proceeding.
Following a bench trial on the remaining issues, BBI appealed, arguing the court’s findings were clearly erroneous. SCOV finds the trial court was wrong in initially finding a novation occurred, and then continued to be wrong by sticking to that ruling. First, a novation happens only when a whole new contract is created by the parties. SCOV says it’s not clear that BBI actually agreed to release Melissa from the original contract, so there can’t be a novation. This, SCOV says, is clear error, so back this goes to the trial court.
SCOV acknowledges that the trial court had to stick with this because of the concept of the law-of-the-case. That happens when there’s a ruling on an issue. The parties (and court) then have to stick with that ruling because it shapes the rest of the case. SCOV says this was error because the initial summary judgment ruling wasn’t well-founded. It’s like if you make cookie dough and accidentally spill ½ cup of salt into the bowl, and instead of scooping out the extra salt you continue with the process because it’s all in the bowl. Two mistakes.
There’s also an unjust enrichment claim, but BBI didn’t preserve it, so SCOV doesn’t consider it.
Last we’ve got Vermont State Colleges v. Department of Labor, 2026 VT 37. Briefly, there’s an unemployment benefits claimant (Claimant) who taught as an adjunct instructor at one of the Vermont State Colleges for nearly 20 years. VSC divides its year into trimesters. Claimant regularly taught fall and spring, and often taught in the summer, but not always. In at 2023 and some other years he didn’t teach summer classes. When Summer 2024 rolled around and he didn’t have a contract to teach, he applied for unemployment benefits. His claim was denied, because it was reasonable to expect he’d be back for the fall trimester, even though he didn’t teach in the summer. He appealed and this was affirmed, because he had a pattern of not teaching in the summer. He appealed that to the Employment Security Board, which reversed. ESB said that since summer was immediately following spring, and that VSC didn’t ensure he could teach in the summer, he’d be eligible for summer term benefits. VSC appealed and SCOV reversed.
SCOV points out that it generally gives a lot of deference to decisions made by boards, as they have more specialized subject matter knowledge than does SCOV. However, this case presents a question of statutory construction, so SCOV reviews de novo. There’s a statute directly on point for unemployment in the academic instruction area, and that statute address specific periods when an academic instructor is not eligible for unemployment benefits. Relevant here is the provision that prohibits payment of benefits for non-employment between “two regular but not successive terms.”
Nobody disagrees that Claimant taught in Fall and Spring and that it was anticipated that would happen. But there was no contract for Summer. And given the facts as they unfolded, Claimant would have had no reasonable assurance that there would be a contract for teaching in the summer. And because there’s nothing in the statute to suggest an exception to require payment of benefits to him, SCOV reverses the ESB.
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