Deso Leduc PUD (Highgate) ( 2017 )

STATE OF VERMONT
SUPERIOR COURT ENVIRONMENTAL DIVISION
Docket No. 16-2-16 Vtec
Deso Leduc PUD (Highgate)
ENTRY REGARDING MOTION
Count 1, Municipal DRB Planned Unit Development (16-2-16 Vtec)
Title: Motion (verified) for Contempt & Enforcement of Prior Order (Motion 3)
Filer: Deso Leduc Properties, LLC
Attorney: Lisa B. Shelkrot
Filed Date: June 16, 2017
Response in Opposition filed on 06/28/2017 by Attorney Edward G. Adrian, for
Interested Person Town of Highgate
Reply filed on 07/24/2017 by Attorney Lisa B. Shelkrot for Appellant Deso Leduc Properties LLC
The motion is GRANTED IN PART and DENIED IN PART.
Appellant/Applicant Deso Leduc Properties, LLC (“Applicant”) began this action to contest
the denial of its preliminary plat application for a twelve-lot subdivision by the Town of Highgate
Development Review Board (“DRB”). The Town of Highgate (“Town”) appeared as an Interested
Party and actively participated in this appeal. After the parties attempted to voluntarily resolve
their legal disputes, the Court set this matter for a trial to begin on September 15, 2016.
Once the trial date had been set, the parties renewed their settlement efforts and arrived
at a somewhat unique arrangement that would result in Applicant receiving both preliminary and
final plat approval, subject to specified conditions that the parties incorporated into a Stipulation
and Consent Order, which the Court then approved, signed, and filed on August 10, 2016. The
principal terms of the parties’ Stipulation were that:1
(1) Applicant’s application for preliminary plat approval for its twelve-lot subdivision
would be immediately approved;
(2) Applicant was to pay $2,000.00 to the Town to offset the Town’s expense “of
obtaining an independent evaluation of the Appellant’s Project.”
1
The numbering systems we employ in this summary is different than the detailed numbering system the
parties employed in their Stipulation.
Deso Leduc Properties, LLC PUD Appeal, No. 16-2-16 Vtec (EO on Motion for Contempt) (10-02-2017) Page 2 of 5.
(3) Applicant pledged to apply for and secure a state land use (“Act 250”) permit and a
state stormwater permit prior to applying for final subdivision plat approval;
(4) Upon satisfaction of the above, the Town agreed that “the DRB shall APPROVE the
final plat application within 30 days,” subject to several conditions. The condition in
the parties’ Stipulation most relevant to the issue now before us states that “[t]he
Applicant submits all supporting documents required by Section 610.2 of the 2008
[Town of Highgate Subdivision] Regulations.”
Stipulation and Consent Order, filed Aug. 10, 2016, at 3–4 (emphasis in the original).
Section 610.2 of the 2008 Regulations provides that certain items “shall” be submitted by
a major subdivision applicant, and that certain other items “may be required by” the appropriate
municipal panel.2 Most relevant to Applicant’s pending contempt claim are Regulations
§§ 610.2(2) and (5), which provide that:
(2) A certificate from a Town Consulting Engineer as to the satisfactory completion of
all improvements may be required by the [DRB], or in lieu thereof, a performance
bond to secure completion of such improvements and their maintenance for a
period of two years, with a certificate from the legislative body that it is satisfied
either with the bonding or surety company, or with security furnished by the
applicant.
. . ..
(5) Bonding may be required, sufficient to cover the completion of required
improvements and maintenance for a period of two (2) years after completion.
The amount of the bond shall be established by the [DRB] based upon the
applicant’s estimate, bids or other information deemed necessary by the [DRB],
but shall not exceed 150% of the projected improvement and maintenance cost.
Id (emphasis added).
After the Court accepted and issued the Consent Order, Applicant paid the required
$2,000.00 to the Town. The parties do not make clear from their most recent filings whether the
Town had the independent evaluation of Applicant’s subdivision plan completed and whether
that evaluation recommended acceptance of Applicant’s plan. We assume that these details
have not been provided because the parties see no issue in whatever the evaluation
recommended, if it even has been completed.
Applicant applied for and received the necessary Act 250 and stormwater permits and
then submitted its application with the DRB for final plat approval. With its final plat application,
Applicant also submitted certain documents required under Regulations § 610.2, such as copies
of proposed deeds and other subdivision documents (pursuant to § 610.2(1)); any documents
required as a result of the preliminary plat approval (pursuant to § 610.2(3)); and a Certificate of
2
Regulations § 610.2 speaks to the Planning Commission serving as the appropriate municipal panel that
reviews subdivision applications, but both the Stipulation and other regulatory provisions not germane to this appeal
empower the DRB to review this subdivision application.
Deso Leduc Properties, LLC PUD Appeal, No. 16-2-16 Vtec (EO on Motion for Contempt) (10-02-2017) Page 3 of 5.
Title showing ownership of all property and easements impacted by the proposed subdivision
(pursuant to § 610.2(3)).3 The Town has not asserted that the documents submitted by Applicant
were somehow deficient or that such a deficiency led to the additional conditions that the DRB
imposed within its final plat approval.
The DRB then approved the final plat application, as anticipated by the parties’
Stipulation. However, the DRB attached 18 conditions to its final plat approval.
The parties’ Stipulation is silent on the matter of the DRB exercising its discretion to add
conditions to its approval of Applicant’s subdivision plan. Also, Applicant does not appear to
contest several of the conditions imposed by the DRB, and even suggests that several of the other
conditions that it may contest could be resolved through future negotiations with the Town. See
Applicant’s Reply in Support of Verified Motion for Contempt and Enforcement, filed July 24,
2017, at 4 (“Based upon conversations between counsel . . ., Deso-Leduc expects that the parties
could successfully address any issues surrounding the property documents . . ..”). However,
Applicant objects to the DRB condition requiring Applicant to secure a bond equal to the
estimated construction cost for the project, plus two years of maintenance costs. See Conditions
1 and 2 contained in the DRB Decision on Final Plat Approval, dated April 17, 2017, at p. 6; a copy
of this DRB Decision was filed with Applicant’s Contempt Motion as Exhibit B.
We therefore turn our attention to the propriety of these first two permit conditions
imposed by the DRB and Applicant’s claim that it represents a contemptuous action against this
Court’s Stipulated Order of August 10, 2016.
Discussion
The parties focus their legal analysis on competing arguments about whether the
applicable regulatory language is permissive or mandatory. We start our analysis with the
requirements that the parties imposed upon themselves through the language used in
Regulations § 610.2 and the parties’ Stipulation, later adopted by this Court in the Consent Order.
Specifically, the Stipulation and Order directs that Applicant submit with its final plat
application “all supporting documents required by Section 610.2 of the 2008 Regulations.”
Stipulation and Consent Order, filed on Aug. 10, 2016, at p. 4, ¶ 8(a) (emphasis added). The Town
appears to argue that § 610.2 provides discretion to the DRB to require additional
documentation, such as a construction bond estimate, and that anything that the DRB directs
within its discretion is a required submission. We reject the Town’s argument, since it is contrary
to the plain language of the applicable provisions of Regulation § 610.2.
In all instances, parties are to be commended when they reach a voluntary resolution of
their legal disputes. Such resolutions provide important advantages, including minimizing the
use of scarce judicial resources and the opportunity to provide an efficient final resolution to the
parties’ legal disputes. In fact, the parties here memorialized the importance of their voluntary
3
Section 610.2(4) further requires that the Certificate of Title “must be approved by the Town Attorney.”
The parties dispute whether Applicant formerly requested that the Town Attorney approve the submitted Certificate
of Title. However, it does not appear that the Town relies upon the absence of a request or approval in its
justification for the additional conditions imposed by the DRB.
Deso Leduc Properties, LLC PUD Appeal, No. 16-2-16 Vtec (EO on Motion for Contempt) (10-02-2017) Page 4 of 5.
resolution by specifically stating that “[t]o avoid delay, uncertainty, inconvenience, and expense
of protracted litigation in this matter the Parties reach a full and final agreement pursuant to
th[eir] Stipulation and agree that the Court may impose the Consent Order set forth” in their
Stipulation. Stipulation and Consent Order, filed on Aug. 10, 2016, at p. 2.
Based upon these representations, we conclude that the parties’ Stipulation, relied upon
by this Court in issuing its Consent Order, represented a full and final resolution of their legal
disputes.
When we are asked to interpret a land use regulation, we conduct an examination similar
to that which we are directed to use to interpret statutory language: we first look to the plain
meaning of the words employed and, if that language is clear, we look no further. In re Vt. Nat’l
Bank, 157 Vt. 306, 312 (1991) (When construing a zoning ordinance, courts “use the same rules
as in the construction of a statute . . . [by] constru[ing] words according to their plain and ordinary
meaning.) (citations omitted); see also In re Irish Const. Application, No. 44-3-08 Vtec, slip op. at
4 (Vt. Envtl. Ct. Nov. 2, 2009) (Durkin, J.).
With this direction in mind, we turn to the task of determining what documents a
subdivision applicant is “required” to submit with their final plat application. The parties’
Stipulation directs an applicant to “submit[] all supporting documents required by Section 610.2.”
Stipulation and Consent Order, at p. 4, ¶ 8(a). Since that regulatory provision contains five
subsections, some of which direct what documents “shall” be submitted and others that advise
what additional submissions the appropriate municipal panel “may” require, we conclude that
the parties’ Stipulation only required Applicant to submit the documents “required” by § 610.2.
Since references to a bond estimate or performance bond are only stated within the discretionary
subsections of § 610.2,4 we conclude that it was improper for the DRB to craft additional
conditions in its final plat approval that were not required by the parties’ Stipulation.
We are somewhat troubled by the terms of the parties’ Stipulation, since it has resulted
in the removal from the DRB of the discretionary powers that are often necessary in permit
approvals. But due to the importance of allowing parties to voluntarily resolve their legal
disputes, we choose not to disturb the plain meaning of the parties’ Stipulation. We therefore
conclude that by allowing the DRB to issue a final plat approval that went beyond the terms of
the Stipulation and Consent Order, the Town is in contempt of that Order.
For these reasons, we GRANT Applicant’s motion for contempt and do hereby STRIKE the
additional conditions imposed by the DRB in its approval of the final plat application. We are
encouraged by the suggestion made by Applicant’s attorney that some conditions, beyond the
bond estimate or bond posting conditions, could be resolved through further voluntary
negotiations. Therefore, before we impose further remedies in light of our contempt finding, we
direct that the parties attempt to reach an agreement, within the next thirty days (i.e.: by no
later than Wednesday, November 1, 2017), on which additional conditions may be included in
the final plat approval.
4
See Regulations §§ 610.2(2) and (5), both of which describe bonding requirements that “may be
required.”
Deso Leduc Properties, LLC PUD Appeal, No. 16-2-16 Vtec (EO on Motion for Contempt) (10-02-2017) Page 5 of 5.
Lastly, we wish to make clear that by reserving our decision on what further remedies
should be imposed in light of our contempt finding, we caution that monetary remedies or
penalties for contemptuous acts in litigation are often reserved only for those instances where
the contemptuous actions are also determined to be in bad faith. See, Lawson v. Brown’s Day
Care Center, Inc., 172 Vt. 574, 576 (2001) (A party to be sanctioned is “entitled to some
explanation why the reasons for the disclosure were not only wrong, but so wrong that they were
advanced in bad faith.”); see also Old Lantern Non-Conforming Use, No. 154-12-15 Vtec, slip op.
at 3 (Vt. Super. Ct. Jul 7, 2017) (reconsidered on other grounds).
So ordered.
Electronically signed on October 2, 2017 at Newfane, Vermont, pursuant to V.R.E.F. 7(d).
________________________________
Thomas S. Durkin, Superior Judge
Notifications:
Lisa B. Shelkrot (ERN 2441), Attorney for Appellant Deso Leduc Properties LLC
Edward G. Adrian (ERN 4428), Attorney for Interested Person Town of Highgate
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