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


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  •                                          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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Document Info

Docket Number: 1-1-11 Vtec 138-8-10 Vtec

Filed Date: 6/1/2018

Precedential Status: Precedential

Modified Date: 7/31/2024