Tuesday, May 31, 2016

Zoning. Failure to appeal decision of "zoning specialist" does not preclude review of later decision of zoning administrator.

In re Burns Two-Unit Residential Building, 2016 VT 63 (filed May 27, 2016)

DOOLEY, J. This case is about modifications to a two-unit residential building in Burlington. A group of Burlington residents (neighbors) appeal a decision of Environmental Division declining to reach the merits of neighbors’ claim that applicants converted their home into a duplex without a zoning permit on the grounds that the challenge was precluded by a prior decision under 24 V.S.A. § 4472(d). On appeal to this Court, neighbors argue that their challenge is not precluded under § 4472(d) because the prior decision had not been rendered by the zoning zdministrator as the statute requires. We agree and reverse.

A neighborhood property owner submitted a zoning enforcement complaint form to the city that stated applicants were conducting modifications to convert a single-family home into two apartments without any zoning permit from the city. A “zoning specialist” responded by letter dated May 15, 2014 that the Code Enforcement Office had determined that the use was presumed valid because the building had been used as a duplex since at least the time of adoption of the 1973 Burlington zoning ordinance. The letter stated that the decision was appealable to the Development Review Board, but neither the complainant nor any other interested party appealed.

On June 3, 2014, applicants obtained a separate “zoning “nonapplicability determination. Neighbors appealed this determination to the DRB and to the Environmental Division, which granted applicants’ motion for summary judgment. The court concluded that the use of the property as a duplex was “conclusively decided in [the] May 2014 letter,” a decision that became final and binding when it was not appealed under 24 V.S.A. § 4472(d).

Neighbors argue that their appeal from the DRB to the Environmental Division is not barred by 24 V.S.A. § 4472(d) because the letter to the original complainant was authored by an employee of the Code Enforcement and § 4472(d), by its terms, applies only to decisions of a zoning administrator.

Section 4472(d) provides that if any interested person fails to appeal to the appropriate municipal panel “under § 4465 of this title . . . all interested persons affected shall be bound by that decision or act of that officer.” Section 4465(a) states that an interested person “may appeal any decision or act taken by the administrative officer in any municipality” (emphasis added).

We are reluctant to apply a broad preclusion rule in this case. Neighbors had no way of knowing that a complaint to the Code Enforcement Office had been made and similarly no way of knowing how the complaint was addressed. Only when applicants filed the certificate of nonapplicability of permit requirements was there public notice of applicants’ plans and the zoning administrator’s approval of those plans and by then it was too late to contest the approval under the decision of the Environmental Division.

The Environmental Court erred in concluding that § 4472(d) applied and precluded review. The letter dated May 15, 2014 was not a decision of the zoning administrator. Because it is not a decision of the zoning administrator, the complainant did not have to appeal it to the DRB to avoid the invocation of § 4472(d). As a result, the letter did not preclude neighbors from requesting the zoning administrator to enforce the zoning ordinance against applicants and from appealing to the DRB from the zoning administrator’s decision that a permit was not needed.

Reversed

Friday, May 27, 2016

Statute of limitations applies to bar State's claim for groundwater contamination, notwithstanding exemption for state property.

State v. Atlantic Richfield Company, 2016 VT 61 (filed May 27, 2016)

ROBINSON, J. This interlocutory appeal calls upon us to decide whether the general six-year limitations has run on the State of Vermont’s claims against defendants for injury to state waters due to groundwater contamination from gasoline additives. The trial court dismissed the State’s claims on the basis of the statute of limitations, insofar as they are predicated on generalized injury to state waters as a whole. On appeal, the State argues that 12 V.S.A. § 462 exempts the State’s claims from the statute of limitations, and, alternatively, that the State’s claims arising under 10 V.S.A. § 1390, a statute that establishes a state policy that the groundwater resources of the state are held in trust for the public, are not time barred because that statute became effective less than six years before the State filed its complaint. We affirm.

Defendants moved to dismiss the complaint as time-barred under the general six year statute of limitations for civil actions. See 12 V.S.A. § 511. Defendants noted that the Legislature’s ban on MTBE in Vermont was enacted in May 2005. For this reason, defendants argued, the State was indisputably aware of the alleged injury to Vermont’s waters due to MTBE more than six years prior to its June 5, 2014 complaint.

In opposition, the State argued that: (1) its claims, which arise from injury to state lands and public trust resources, are exempt from any limitations period, see 12 V.S.A. § 462; (2) even if a limitations period did apply, the State’s cause of action based on 10 V.S.A. § 1390 accrued on June 9, 2008, when that statute became effective, and the State filed suit within six years of the Legislature’s creation of that new cause of action


(1) 12 V.S.A. § 462

12 V.S.A. § 462 provides: “Nothing contained in this chapter shall extend to lands given, granted, sequestered or appropriated to a public, pious or charitable use, or to lands belonging to the state.” The section appears in chapter 23 of Title 12, which includes the general six-year limitation for civil actions, 12 V.S.A. § 511.

The State argues that this statute relating to “lands belonging to the state” applies to groundwater held by the state in trust for the public. Second, the State contends that the statute’s bar to application of the statute of limitations extends beyond claims of adverse possession or prescriptive rights to claims based on environmental injuries.

Based on the history surrounding its enactment, our cases, the language of the statute, and policy considerations,we conclude that § 462 does not exempt the State’s claims from the statute of limitations because the State’s claims are not the kind of claims contesting property interests in land to which the statute applies.

Although we have never squarely considered the question, our decisions have consistently reinforced the understanding that § 462 was designed to prevent adverse-possession claims with respect to interests in state property, or property dedicated to a public, pious, or charitable use. Our longstanding understanding of § 462 is consistent with the language of the statute itself. Moreover, sound policy considerations reinforce our longstanding interpretation.

We conclude the trial court properly interpreted § 462 as limited to claims of adverse possession (or other claims of property interests arising by prescription). The exemption is thus inapplicable in this case


(2) 10 V.S.A. § 1390


10 V.S.A. § 1390 codifies the Legislature’s recognition that the groundwater of Vermont is a precious, finite, and invaluable resource. The following language of the statute is the basis of the State’s argument here: “The designation of the groundwater resources of the state as a public trust resource shall not be construed to allow a new right of legal action by an individual other than the State of Vermont . . .” 10 V.S.A. § 1390(5). The effective date of this statute was June 9, 2008.

We conclude that even if § 1390 did create a new cause of action that was retroactively enforceable, that would not empower the State to apply the statute to injuries discovered more than six years prior to its complaint. When the State filed its complaint on June 5, 2014, the general six-year statute of limitations precluded claims arising from injuries that were discovered more than six years before. Even if § 1390 created a new cause of action for the State, and even if the statute authorized retroactive application of this new cause of action—questions we do not decide—the six-year limitation would bar the State’s § 1390 claims to the extent that it relies on generalized harm to the groundwater’s of the state as a whole.


For the above reasons, we affirm the trial court’s determinations that 12 V.S.A. § 462 does not exempt the State’s claims from operation of the applicable statute of limitations, and its conclusion that the State’s claims under 10 V.S.A. § 1390 are not all timely as a matter of law. Affirmed.

Thursday, May 26, 2016

Twelve percent statutory interest passes federal constitutional muster.

Concord General Mutual Insurance Co. v. Gritman, 2016 Vt. 46 (filed April 22, 2016)

ROBINSON, J. Defendant Dylan Stinson appeals from a judgment finding him liable to plaintiffs for damage to their vacation home. Stinson contends that the pre and postjudgment interest rate awarded by the trial court was unconstitutional under the U.S. and Vermont Constitutions. We affirm.

Stinson argues that the trial court's award of statutory interest pursuant to 9 V.S.A. § 41a(a) (prejudgment interest) and 12 V.S.A. § 2903(c) (postjudgment interest) is unconstitutional, because it deprives him of property without due process of the law in violation of Fifth and Fourteenth Amendments to the U.S. Constitution. 


Stinson also raises a constitutional challenge under Articles 1, 4, 9, and 18 of the Vermont Constitution; however, he fails to provide any analysis tying his challenge to the statutory interest rates to those provisions. He simply raises the provisions and never elaborates on these contentions other than to list the provisions. We will not address state constitutional claims where they are insufficiently raised and inadequately briefed.

All parties agree that the rational-basis test applies to Stinson's Federal constitutional claim. If there are any reasonably conceivable state of facts that could provide a rational basis for the 12% rate, the statute must be upheld. Providing one contrary explanation does not in and of itself show that the 12% rate is not reasonably related to the statute's purpose. 


Although we acknowledge that the statutory rate is incongruous in the context of today's market conditions, we conclude that the 12% rate is reasonably related to making plaintiffs whole, and as a result, passes rational-basis review.

Attorney’s fees. Award of attorney's fees for public health enforcement was not authorized by statute nor warranted under an equitable exception to the American Rule.

Town of Milton Board of Health v. Brisson, 2016 VT 56 (filed May 6, 2016).

SKOGLUND, J. The Town of Milton successfully brought an action to enforce a town order requiring defendant to remediate problems with his residence that constituted a public health hazard. Defendant does not contest either the civil penalty or the compensatory costs for engineering fees assessed against him by the court, but contends that the court's award of attorney's fees was neither authorized under the applicable statute nor warranted under an equitable exception to the American Rule requiring each party to bear the cost of its own attorney's fees. We agree and therefore vacate the attorney's fee award.

The provision at issue in this case is 18 V.S.A. § 130(b)(5), which provides that the court may order "reimbursement from any person who caused government expenditures for the investigation and mitigation of the public health risk or the investigation, abatement, or removal of public health hazards." Id. § 130(b)(5). The Town argues that the plain meaning of the term "governmental expenditures" in § 130(b)(5) encompasses its attorney's fees incurred in its enforcement action against defendant. We disagree.

Attorney’s fees are a unique type of expense that is subject to special rules and treatment. Generally, when the Legislature has intended to authorize the award of attorney's fees in a particular action—beyond that permitted under the common law—it has done so explicitly. The American Rule disallows attorney's fees absent an express statutory authorization. Accordingly, we hold that § 130(b)(5) does not authorize the superior court to award attorney's fees as part of the reimbursement allowed therein.

The Town also argues that even if § 130(b)(5) does not authorize an award of attorney's fees, the superior court acted within its discretion in awarding the fees in the alternative based on an equitable exception to the American Rule. Again, we disagree.

The equitable power to award attorney's fees as an exception to the American Rule "must be exercised with cautious restraint . . . only in those exceptional cases where justice demands an award of attorney's fees." This is not a case where the interests of justice demanded an award of attorney's fees. The court made no finding of bad faith or of vexatious or wanton conduct on the part of defendant.

DOOLEY, J., dissenting. Because attorney's fees plainly fall within the statutory language allowing recovery of expenditures incurred in the enforcement of public health orders and because an award of such fees is in keeping with the statute's overall remedial purpose, I would hold that the statute allows recovery of the attorney's fees requested in this case, and affirm. I dissent from the majority's holding to the contrary.

The majority ignores a relevant line of cases beginning with Key Tronic Corp. v. United States, 511 U.S. 809, 811 (1994), (addresing the availability of attorney's fees for private plaintiffs, as part of pollution “response costs”). See also United States v. Chapman, 146 F.3d 1166 (9th Cir. 1998)(addressing whether government agency can recovery attorney’s fees as part of s remediation expenses) To the extent we look to persuasive authority to decide this case, we should follow Chapman and Key Tronic. I am authorized to state that Justice Eaton joins this dissent.

Torts. Concerted action liability. Teenager who was present and partying with others is liable for their negligent conduct causing a fire.

Concord General Mutual Insurance Co. v. Gritman, 2016 Vt. 46 (filed April 22, 2016)

ROBINSON, J. Defendant Dylan Stinson appeals from a judgment finding him liable to plaintiffs for damage to their vacation home from a fire started in an outdoor fireplace on their deck by a group of teenagers who were there without their permission. Stinson contends that there was insufficient evidence to find him liable for the damage under a concerted-action theory. We affirm.

On May 26, 2009, a group of teenagers gathered at a vacation house owned by the plaintiffs. As the night progressed, it became chilly and the teens decided to build a fire. Stinson was present on the deck partying with the group while the fire was burning. Around 9:46 p.m., Stinson left the property. Nobody added additional wood or fuel to the fire after Stinson left. At 4:09 a.m., a fire was discovered at the property. The fire burned the house to the ground.

Stinson argues first there was insufficient evidence that he knew of any negligent conduct that could cause the house to catch fire. Second, even if he did know of any negligent conduct, he argues he did not give substantial assistance or encouragement in building the fire.

We have adopted the definition of concerted action lability as stated in the Restatement (Second) of Torts § 876 (1979). This section provides, in part, that a person is subject to liability for harm to a third person from the tortious conduct of another if the person “knows that the other's conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct [himself or herself].” Restatement (Second) of Torts § 876 (b). See Lussier v. Bessette, 2010 VT 104, ¶¶ 7-11, 189 Vt. 95, 16 A.3d 580; Montgomery v. Devoid, 2006 VT127, ¶ 33, 181 Vt. 154, 915 A.2d 270. This theory of liability requires both knowledge that another's conduct constitutes a breach of duty, and substantial assistance or encouragement to the other.

We conclude that there was ample evidence to support the jury's inference that Stinson knew of a negligent act. A jury could find from the evidence that Stinson not only sat by the fire throughout the evening, but was present during the times when it was burning too hot. Moreover, there is no evidence that Stinson took any steps ensure that his peers would fully extinguish the fire before they left. This evidence supports the inference that Stinson knew, or had reason to suspect, that one or more of his peers was or would be negligent in managing and extinguishing the fire.

Similarly, there was ample evidence that Stinson gave substantial assistance or encouragement to his peers.  To determine whether a defendant's conduct rises to the level of substantial assistance or encouragement, the Restatement calls for consideration of five factors: (1) the nature of the wrongful act; (2) the kind and amount of the assistance; (3) the relationship between the defendant and the actor; (4) the presence or absence of the defendant at the occurrence of the wrongful act; and (5) the defendant's state of mind. Restatement (Second) of Torts § 876 cmt. d.


The jury could have reasonably inferred from the facts that the teenagers built, maintained, and ultimately left the fire while they were substantially impaired, and that Stinson was as much a part of this group endeavor as any other. Stinson was one of five youths present on the deck for most of the evening, having left only fifteen minutes prior to the other teens. He participated in the gathering as much as anyone, was present when the fire was so hot that the youths could not sit right next to it, and left while the fire was still burning. Based on these facts, the jury had sufficient evidence to support a finding that Stinson substantially assisted or encouraged the activities of his peers, including building a too-hot fire and leaving without fully extinguishing it.


SKOGLUND, J., dissenting. No evidence demonstrated that Stinson substantially assisted or encouraged others' tortious conduct. Accordingly, I respectfully dissent.

The only evidence upon which the jury could have concluded that Stinson acted in concert with a negligent act was testimony indicating that he was present and participating in the party on the deck when the fire was burning and/or that he said nothing to the people remaining when he left to ensure that they extinguished the fire properly. The majority appears to presume that the negligent act was the manner in which the fire was made and maintained. But there was no evidence that Stinson had anything to do with starting or maintaining the fire. Further the evidence indicated that, by the time the youths left, there were, at most, just smoldering coals left. Hence, the size of the fire or flames was not the cause of the house fire. Logic and the responses to the special verdict form strongly suggest that the jurors considered the negligent act to be not extinguishing the fire properly.

The question, then, is whether Stinson substantially encouraged or assisted in the negligent act that caused the fire, so as to be liable under § 876(b), by being present on the deck while the fire was burning and/or by failing to tell those remaining when he left to extinguish the fire before they left. In my view, this evidence fails, as a matter of law, to establish Stinson's in-concert liability. 


The Restatement cautions that "the encouragement or assistance" must be "a substantial factor in causing the resulting tort." Restatement (Second) of Torts § 876 cmt. d (1979). There is no evidence to suggest that any comment by Stinson warning the others to make sure that the fire was extinguished properly before they left would have made any difference as far as their efforts to douse it. Failing to advise the others before he left to make sure the fire was extinguished properly, in my view, is conduct too attenuated as a matter of law to impose liability on him under § 876(b).

Act 250: City entitled under Rule 34 to amend conditions restricting use of Waterffont Park

In re Waterfront Park Act 250 Amendment, 2016 VT 39 (filed 4/15/2016)

ROBINSON, J. This case requires us to apply Act 250 Rule 34(E), which establishes a framework for determining whether a party may seek to amend an Act 250 permit. Neighbor appeals from the Environmental Division's award of summary judgment to the City of Burlington. The Environmental Division ruled that the City is entitled to seek an amendment to its Act 250 permit covering the Waterfront Park located on the shores of Lake Champlain. We affirm.

The sole issue on appeal is whether the amendment violated Act 250 Rule 34(E). Neighbor makes two arguments First, neighbor challenges the trial court's conclusion that the City was not merely trying to relitigate a prior condition. Second, neighbor contends the trial court did not properly balance finality with flexibility.

The City sought to amend a number of conditions in the 1994 permit, which set rules that apply to events held in the Waterfront Park. The district commission granted the City's request and deleted certain conditions restricting dates, total days, and weekend days of events in the Park; extended the cutoff time for music; and substituted new noise regulations. On appeal, the trial court on summary judgment ruled that the application did not violate Rule 34.

We review the trial court’s summary judgment ruling anew and without deference, applying the same standard as the Environmental Division We note however that the proper standard of review is not entirely clear. Because we reach the same conclusion as the trial court even affording its ruling no deference, the resolution of this case does not turn on the applicable standard of review.


I

Rule 34 (E) (2) states “the district commission shall consider whether the permittee is merely seeking to relitigate the permit condition or to undermine its purpose and intent.” In Stowe Club Highlands, we stated: "Permit applicants should consider foreseeable changes in the project during the permitting process, and not suggest conditions that they would consider unacceptable should the project change slightly."  166 Vt. 33, 39. The trial court correctly observed, however, that "[f]oresight alone does not overcome the conclusion" that circumstances might change to such a degree that an amendment is warranted. Here, the City hoped for a robust waterfront that would serve as a focal point for the community and the region. The extent of its success in achieving these hopes was not so foreseeable at the time of the 1994 Permit that the City was forever precluded from seeking amendments to the permit if its hopes were realized. We conclude that the changes in and around the Park since 1994 have been so extensive that it would be improper to characterize the City's application as a mere effort to relitigate the 1994 permit, or to undermine the purposes of the conditions in that permit.


II

Rule 34 calls for the district commission to consider a nonexclusive list of factors in balancing the need for finality against the need for flexibility.

On balance, we agree with the Environmental Division's conclusion that the factors supporting flexibility in this case outweigh those calling for finality. The Park has been a dynamic resource to the City, and its increased use has been and will continue to be important to the City's cultural, recreational and social life, and its prosperity. While neighbor's reliance on the prior permit limitations carries some weight, in this case it is outweighed by other factors so that it is not unreasonable to consider proposed amendments to the permit.

Affirmed.