Harrison CU ( 2013 )

State of Vermont
Superior Court—Environmental Division
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ENTRY REGARDING MOTION
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In re Harrison Conditional Use Permit Docket No. 155-11-12 Vtec
(Appeal from Berkshire DRB approval)
Title: Motion to Show Cause
Filed: August 6 and September 24, 2013
Filed By: Stacy Silloway
Response: None
Granted Denied X Other
Amy Harrison d/b/a Phoenix House Restaurant & Bakery obtained Conditional Use Approval
from the Town of Berkshire Development Review Board (DRB) for a restaurant, bakery, and rental unit
located at 7 Potato Hill Road, West Berkshire, Vermont (the Project). Stacy Silloway, the owner of an
adjoining parcel at 61 Potato Hill Road, appealed the DRB’s November 5, 2012 approval and raised five
questions for the Court to review. Both Applicant and Appellant represent themselves in this matter.
In a June 6, 2013 Order we affirmed the DRB’s November 2012 approval, including all findings,
conclusions, and conditions. Additionally we imposed screening requirements for the Project to satisfy
Section 5.8 of the Berkshire Land Use and Development Regulations. The additional screening
included a fence and plantings, the details of which resulted from an agreement of the parties. The
additional screening was to be completed by August 1, 2013.
On August 6, 2013, Ms. Silloway filed a letter requesting enforcement of our June 6, 2013 Order
and again on September 4, 2013 filed a Motion for Enforcement of Judgment Order. On October 8, 2013
we issued an order requiring that Amy Harrison d/b/a Phoenix House Restaurant & Bakery appear in
person before this Court on October 31, 2013, to show cause why she should not be found in contempt
of this Court for failing to comply with the Court’s June 6, 2013 Order.
12 V.S.A. § 122 provides for the initiation of contempt proceedings against any party that
violates a court order, regardless of whether the case is currently active. This section does not limit the
parties against whom contempt proceedings may be initiated, nor does it limit the persons that may be
punished for their actions that are in contempt of a court order. Vt. Women’s Health Ctr. v. Operation
Rescue, 159 Vt. 141, 145 (1992); Horton v. Chamberlain, 152 Vt. 351, 354 (1989).1 This Court is prepared
to impose such sanctions where a respondent is ignoring a court order.
1
Furthermore, imprisonment can be inflicted as a means to compel the party to do some act ordered by
the court. In re Sage, 115 Vt. 516, 517 (1949); see 12 V.S.A. § 123.
In re Harrison Conditional Use Permit, No. 155-11-12 Vtec (EO on Motion to Show Cause) (Nov. 12, 2013) Page 2 of 2.
During the October 31, 2013 show cause hearing, Ms. Harrison acknowledged that the screening
required by the June 6, 2013 Order had not been completed. Ms. Harrison explained that she rents the
subject property from the owner, Mr. George Ewins, and at that time he refused to allow Ms. Harrison
to install the screening fence and to plant the screening trees. Ms. Harrison asked for an opportunity to
communicate with Mr. Ewins in the hopes that Mr. Ewins would allow the screening to be
implemented. Ms. Harrison also asked that the show cause hearing be reset to allow for progress to be
made toward full compliance with the screening requirements.
The Court reconvened the show cause hearing on November 12, 2013. Ms. Harrison and Ms.
Silloway both appeared. Additionally, Mrs. Maxi Ewins appeared. Ms. Harrison and Mrs. Ewins
reported that fencing had been ordered, Mr. Jeff Lawyer had been retained to install the fence, and that
35 six foot tall cedar trees had been purchased from Drinkwater Nursery in Waterford, Vermont. The
parties agreed to have the line staked were the fence was to be installed so Ms. Silloway could raise any
concerns in advance of installation. The parties also agreed to have the fence builder and nursery
review existing trees to ensure the screening improvements would not be compromised by falling
branches or trees. Mrs. Ewins and Ms. Harrison expected that the fence and trees would be installed
and planted within the next one to two weeks.
Based upon the forgoing, it is ORDERED that:
1. All fencing and screening trees shall be installed and planted prior to December 13, 2013.
2. The parties shall cooperate in good faith to ensure the installation and planting proceeds
expediently.
3. Under the circumstances of this matter, the Court DECLINES to impose penalties. However,
movant’s costs incurred in this show cause hearing shall be reimbursed by Ms. Harrison.
These costs include $73.06 for service and $78.75 for to post-judgment filing fee. Thus, on or
before November 18, 2013, Ms. Harrison shall pay Ms. Silloway $151.81.
This completes the proceedings in this matter.
_________________________________________ November 12, 2013
Thomas G. Walsh, Judge Date
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Date copies sent to: ____________ Clerk's Initials _______
Copies sent to:
Appellant Stacy Silloway
Appellee Amy Harrison
FYI Only – George and Maxi Ewins