Town of Hartford v. Wood & Wood NOV & Permit App. - Entry Regarding Motion to Recuse ( 2018 )

STATE OF VERMONT
SUPERIOR COURT ENVIRONMENTAL DIVISION
Docket No. 1-1-11 Vtec &
Docket No. 138-8-10 Vtec
Town of Hartford v. Wood
and
Wood NOV and Permit Applications
ENTRY REGARDING MOTION
Title: Motion to Recuse (Motion 21)
Filer: Marc Wood
Attorney: [Self-Represented Litigant]
Filed Date: May 9, 2018
Response in Opposition filed on 05/29/2018 by Attorney William F. Ellis for Town of Hartford
The motion is referred to the Chief Superior Judge.
By his letter dated April 25, 2018, and filed with the Court on May 9, 2018, Respondent/
Appellant Marc Wood (“Respondent”) presents several factual allegations which, if true, would
support his request that the undersigned should recuse himself as the trial judge presiding over
the above referenced Dockets.
The two Dockets referenced above were the subject of a Corrected Merits Decision,1
issued by this Court on March 27, 2012; Respondent appealed that Decision to the Vermont
Supreme Court, which affirmed our Decision. See In re Wood NOV and Permit Amend.
Applications, 2013 VT 40, 194 Vt. 190.
This Court was next called upon to revisit these closed Dockets in 2014 when Mr. Wood
and the Town of Hartford (“Town”) each filed post-judgment motions. By two Entry Orders,
issued on the same day, this Court denied Mr. Wood’s motion for post-judgment relief and
granted the Town’s motion to hold Mr. Wood in contempt for failing to pay all fines due, including
1
The Corrected Merits Decision was issued to remedy certain typographical errors as to dates on pages 11
and 15 and the per-day fine recited on page 19 of the original Merits Decision, which was issued on February 22,
2012.
In re Wood NOV and Permit Apps., No. 138-8-10 & 1-1-11 Vtec (EO on Motion for recusal) (06-01-2018) Page 2 of 5.
interest, and to complete performance of all injunctive relief directed by the Court in its
Corrected Merits Decision. See In re Wood NOV and Permit Apps., 138-8-10 Vtec and 1-1-11 Vtec
(Vt. Super. Ct. Envtl. Div. Aug. 12, 2014) (Durkin, J.). This Court established a new deadline for
Mr. Wood to satisfy the injunctive directives2 and deferred its determination of whether to award
the Town further reimbursements, including attorney’s fees, incurred as a consequence of Mr.
Wood’s contempt. Id.3
The Town thereafter moved for enforcement of the contempt order and Mr. Wood
moved for further clarification of the Corrected Merits Decision and Judgment Order. After
“[m]any conferences and other procedural back and forths on how best to enforce the Court’s
final judgment . . . [and a]fter several scheduling delays, the Court scheduled a hearing on all . . .
motions for April 25, 2016.” In re Wood NOV and Permit Apps., 138-8-10 Vtec and 1-1-11 Vtec,
slip op. at 2 (Vt. Super. Ct. Envtl. Div. April 13, 2016) (Durkin, J.). When Mr. Wood’s attorney
requested leave to withdraw her representation, and based upon the credible grounds
presented, the Court granted that withdrawal request and a further continuance of the motions
hearing. Id. The hearing on those post-judgment motions was rescheduled to August 30, 2016.
After hearing and affording the parties an opportunity to make post-hearing filings, the
Court issued its Decision on Post-Judgment Motions on March 1, 2017; a revised Decision was
issued to address several requests for clarification posed by both parties. See In re Wood NOV
and Permit Apps., 138-8-10 Vtec and 1-1-11 Vtec (Vt. Super. Ct. Envtl. Div. April 3, 2017)
(Durkin, J.).
These coordinated Dockets were then again closed, but were re-opened to address
Respondent’s Motion for Relief from Judgment, filed on March 5, 2018. Before the Court had an
opportunity to address that motion, Respondent filed his request for recusal. We therefore first
address the recusal request, since it deserves priority.
Due to the lengthy history of the litigation between Mr. Wood and the Town, all of which
concerned his efforts to develop his commercial property along Route 14, we provide the
2
As to the injunctive actions, the Court directed that Mr. Wood, no later than Friday, September 12, 2014:
1. Pay to the Town of Hartford the sum of $10,664.76;
2. Provide a full copy of this Court’s March 27, 2012 Corrected Merits Decision and Judgment
Order to Mr. Wood’s engineers, Souhegan Valley Engineers, Inc., as well as a copy of this Entry
Order;
3. Authorize the[] engineers to speak with any officials designated by the Town, so that the
Town may confirm that Defendants’ directives conform with this Court’s Orders;
4. Fulfill the remaining injunctive provisions of this Court’s March 27, 2012 Corrected
Judgment Order, using September 12, 2014 as the final deadline to calculate all remaining
deadlines.
In re Wood NOV and Permit Apps., 138-8-10 Vtec and 1-1-11 Vtec (Vt. Super. Ct. Envtl. Div. Aug. 12, 2014) (Durkin, J.).
3
While the Court’s contempt order initially named both Mr. and Mrs. Wood, the Court subsequently
granted Mrs. Wood’s motion to clarify its contempt order by noting that the Court directives only required Mrs.
Wood to fulfill her obligations under the Corrected Judgment Order of March 27, 2012. Mrs. Wood has not been an
active participant in the zoning violations caused by her husband and has been a participant in these legal
proceedings mainly because she is a joint owner of one of the subject parcels. See In re Wood NOV and Permit
Apps., 138-8-10 Vtec and 1-1-11 Vtec (Vt. Super. Ct. Envtl. Div. March 6, 2015) (Durkin, J.).
In re Wood NOV and Permit Apps., No. 138-8-10 & 1-1-11 Vtec (EO on Motion for recusal) (06-01-2018) Page 3 of 5.
following citations to the various appeals and enforcement actions that have come before this
Court concerning Respondent’s development efforts:
• Town of Hartford v. Wood, Docket No. 72-3-00 Vtec. This enforcement action was filed
on March 30, 2000 and was closed after a judgment order was issued by Judge Merideth
Wright on September 24, 2001. Mr. Wood appealed to the Supreme Court, which issued
its affirmation on May 29, 2002. Town of Hartford v. Wood, No. 2001-473, 2002 WL
34423566 (unpub. mem.). Several post-judgment motions were then filed, including
motions for contempt by the Town and motions to reopen and reconsider by Respondent.
The undersigned addressed all post-judgment motions and the matter was re-closed on
March 6, 2008.
• In re Appeal of Marc & Susan Wood, Docket No. 121-7-03 Vtec. Mr. and Mrs. Wood filed
this appeal on July 14, 2003 from a denial of a permit for their as-built retaining wall and
commercial development of the site. On May 19, 2004, Judge Wright issued an order
vacating the municipal decision and remanding the matter for further consideration. The
matter was re-opened on October 10, 2007 to address multiple post-judgment motions
that were filed over the course of several months. The matter was re-closed on
September 15, 2008, after the Court conducted a final conference to address questions
raised by Mr. Wood.
• In re Appeal of Marc Wood, Docket No. 185-10-04 Vtec. On October 6, 2004, Marc Wood
filed this appeal of another municipal determination concerning his same proposed
development, including the retaining wall. The parties filed multiple pre-trial motions, all
of which the Court addressed by either a decision or entry order. The last order issued
on April 13, 2006, granted summary judgment for the Town. Mr. Wood filed an appeal to
the Supreme Court on May 17, 2006; the Supreme Court dismissed that appeal as
untimely, thereby closing the case. On August 24, 2007, the matter was re-opened to
address a post-judgment motion to compel filed by the Town. Multiple other post-
judgment motions were filed, which the Court addressed at various hearings and in
various decisions and entry orders. The Court re-closed the matter on September 15,
2008, after responding to Mr. Wood’s request to clarify its prior entry orders.
• In re Wood Zoning Permit Amendment, Docket No. 81-4-07 Vtec. Mr. Wood then applied
for an amendment to his now-expired zoning permit from 1999. When the appropriate
municipal panel denied his permit amendment application, he filed an appeal with this
Court on March 9, 2007. On August 27, 2007, the Court granted the Town’s motions for
summary judgment and to dismiss Mr. Wood’s appeal. Mr. Wood filed several
reconsideration requests, all of which the Court addressed by various entry orders. As a
consequence of the last of those entry orders, this appeal was closed on March 6, 2008.
• In re Wood Certificate of Occupancy, Docket No. 176-8-07 Vtec. In 2007, Mr. and Mrs.
Wood also applied for a certificate of occupancy (“CO”) from the Town. When their CO
request was denied, they filed this appeal on August 20, 2007. The parties requested that
the Court stay consideration of this appeal while the Court was addressing motions in the
other pending Wood appeals; the Court granted that stay request. Thereafter, the parties
In re Wood NOV and Permit Apps., No. 138-8-10 & 1-1-11 Vtec (EO on Motion for recusal) (06-01-2018) Page 4 of 5.
filed multiple pre-trial motions. This appeal was closed on June 10, 2009 after the Court
granted summary judgment to the Town.
• In re Wood NOV and Permit Applications, Docket No. 138-8-10 Vtec. Sometime prior to
the filing of this appeal, the Town had served Mr. and Mrs. Wood with a notice of alleged
zoning violations (“NOV”) at their Route 14 property. Mr. and Mrs. Wood had also applied
for one or more new permits for the development of their Route 14 property. On August
17, 2010, the Woods appealed the NOV and the permit denials in a single appeal to this
Court. The Court and the parties prepared for trial, which was held on July 14, 21, and
22, 2011 at what is now known as the Windsor Superior Court, Civil Division, in
Woodstock. The Court allowed the parties to make post-trial filings and then rendered
its Merits Decision and Judgment Order on February 22, 2012. In response to post-trial
motions, the Court issued a Corrected Merits Decision and Judgment Order on March 27,
2012. The Woods appealed to the Vermont Supreme Court on April 25, 2012. The
Supreme Court issued its Decision affirming this Court on June 14, 2013. In re Wood NOV
& Permit Applications, 2013 VT 40, 194 Vt. 190. That Decision closed this appeal.
However, the matter was re-opened to address many post-judgment motions, thirteen
by the undersigned’s count, including the pending recusal motion and Mr. Wood’s April 5,
2018 motion for relief from judgment that we have suspended to address Mr. Wood’s
recusal request. The Court has addressed all but those last two pending motions.
• Town of Hartford v. Wood, Docket No. 1-1-11 Vtec. The Town filed this zoning
enforcement action on January 4, 2011, to prosecute Mr. Wood for the zoning violations
it alleged in the NOV appealed by Mr. Wood in Docket No. 138-8-10 Vtec. The Court
coordinated the matters for trial and held a coordinated trial on July 14 and 21-22, 2011.
After allowing the parties to make post-trial filings, the Court issued its Merits Decision
and Judgment Order on February 22, 2012.4 Mr. Wood thereafter filed an appeal with
the Supreme Court, which issued its Decision affirming this Court on June 14, 2013. That
Decision closed this appeal. However, the matter was re-opened to address many post-
judgment motions, sixteen by the undersigned’s count, including the pending recusal
motion and Mr. Wood’s April 5, 2018 motion for relief from judgment that we have
suspended to address Mr. Wood’s recusal request. The Court has addressed all but those
last two pending motions.
Over the course of the last thirteen and a third years, the undersigned has served as the
judge presiding on all of the pending cases concerning Mr. Wood and the Town. During that
entire time, I have attempted to provide both parties with a full and fair opportunity to present
their evidence and have reserved judgment upon those facts and arguments until the close of
trial or motion practice. In addition, during the periods when Mr. Wood has represented himself,
I have attempted to protect him from any unfair prejudice that could have occurred against him
due to his self-represented status. I regret that my efforts have apparently not been sufficient
to convinced Mr. Wood that he has been treated fairly during these various litigations.
4
In response to Mr. Wood’s post-judgment motion, the Court issued an Amended Merits Decision and
Judgment Order on March 27, 2012.
In re Wood NOV and Permit Apps., No. 138-8-10 & 1-1-11 Vtec (EO on Motion for recusal) (06-01-2018) Page 5 of 5.
I have reviewed the allegations Mr. Wood presents in his April 25, 2018 letter. I find his
representations very disturbing, for several reasons, including that I have a quite different
recollection of the events he references. I specifically recall the site visits the Court has
conducted with the parties at his property. I do not recall stating what he alleges, and I do not
recall any site visit being recorded. Had he supplied a copy of that recording with his April 25th
letter, I would have reviewed it to help determine the credibility of his allegations. Without the
tape he references, I am left to rely solely upon my own recollection, which contradicts his
assertions.
Despite his allegations, I believe I can continue to remain impartial when called upon to
address the remaining issues raised by Mr. Wood’s post-judgment motion.
Civil Rule 40(e) governs when a trial judge is called upon to recuse or disqualify
themselves. It does not appear to specifically address post-judgment disqualification motions,
but we believe it is analogous to the procedural stance presented here.
Subsection (2) of this Rule requires that disqualification motions “shall be accompanied
by an affidavit . . . .” V.R.C.P. 40(e)(2). Mr. Wood chose to provide no such affidavit in support
of his motion.
When a trial judge is unable to conclude that a disqualification motion should be granted,
she or he is directed to not rule on the pending motion and instead “refer the motion” to the
Chief Superior Judge. V.R.C.P. 40(e)(3). Based upon Mr. Wood’s submission, and its deficiencies,
I am unable to grant his disqualification request. I therefore refer this motion to our Chief
Superior Judge.
So Ordered.
Electronically signed on June 1, 2018 at Newfane, Vermont, pursuant to V.R.E.F. 7(d).
________________________________
Thomas S. Durkin, Superior Judge
Environmental Division
Notifications:
William F. Ellis (ERN 3412), Attorney for Plaintiff Town of Hartford
Defendant Marc Wood
Hon. Brian J. Grearson, Chief Superior Judge
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