Wood NOV and Permits Applications & Town of Hartford v. Wood - Entry Regarding Motion ( 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 for Relief from Judgment Order (Motion 23)
Filer: Marc Wood
Attorney: Brice C. Simon
Filed Date: March 5, 2018
Response in Opposition filed on 04/02/2018 by Attorney William F. Ellis
for the Town of Hartford
Reply in Support of Motion filed on 06/18/2018 by Attorney Brice C. Simon
for Appellant Marc Wood
Further Response in Opposition filed on 06/28/2018 by Attorney William F. Ellis
for the Town of Hartford.
The motion is DENIED.
Marc Wood’s efforts to develop his properties along Vermont Route 14 in the Town of
Hartford (“Town”) began sometime in 1998. His development on these properties remains
incomplete and Mr. Wood and his properties have been the subject of many separate appeals
and enforcement actions. Both the parties and this Court have attempted to bring some finality
to these combined litigations, but those attempts have thus far been unsuccessful. Due to that
long history, we believe it appropriate to provide the following brief history of Mr. Wood’s
development efforts and the Town’s enforcement efforts before we review the pending post-
judgment motion in the above referenced dockets.1
1
We provided a more complete procedural summary of the various litigations in this Court concerning Mr.
Wood’s development efforts in an Entry Order issued in response to Mr. Wood’s motion for the presiding judge to
recuse himself. See Town of Hartford v. Wood & Wood NOV & Permit Appeals, Nos. 1-1-11 Vtec, 138-8-10 Vtec, slip
op. at 1–4 (Vt. Super. Ct. Envtl. Div. June 1, 2018) (Durkin, J.).
Town of Hartford v. Wood & Wood NOV & Permit Apps., No. 138-8-10 & 1-1-11 Vtec (EO on Post-Judgment Motion for
Relief) (09-19-2018) Page 2 of 19.
Background
Mr. Wood’s properties are located on the southerly side of Vermont Route 14 (a/k/a
Maple Street). 2 Prior to Mr. Wood’s development efforts, both lots sloped steeply away from
the highway, down towards a Town road known as either Mill Hill Road or Ferry Boat Crossing.
The property on the other side of that Town road abuts the White River.
Mr. Wood’s two parcels are relatively narrow, compared to their length along Maple
Street; the difference in elevation from their northern to southern boundaries is about 40 feet.
Mr. Wood applied for a permit to develop the lots in 1998. In order to develop the lots
more effectively, Mr. Wood proposed to construct a stone retaining wall along the combined
parcels’ southern and western boundaries which would be nearly 30 feet at its highest point from
base to top of the wall. Mr. Wood then amended his permit application by proposing that
concrete slabs, harvested from a nearby interstate highway bridge reconstruction project, would
be used instead of stone to construct his proposed retaining wall. His then engineer proposed
specifications for the revised retaining wall, including the following, which we included in a 2012
merits decision:
3. The slabs shall be reinforced concrete, obtained from a bridge rehabilitation
project with a minimum thickness of 10 inches. Only slabs that have been sawn
and have maintained their integrity during removal may be used; hammered slabs
are unacceptable. The minimum width of an acceptable slab is 8 feet. . . .. Any
fixtures or steel shall be removed prior to slab placement if another slab will bear
on it. Transverse joints shall have a width of approximately 2 to 4 inches and filled
with pea gravel for drainage purposes. Transverse joints shall be offset at least 3
feet from the joint above and below. Curb or non-curb slabs may be used on the
outside face of the wall and only non-curb sections may be used behind the face.
Slabs shall be set level or tilted so that the end furthest from the wall face is lower
than the front face.
Town of Hartford v. Wood & Wood NOV & Permit Applications, Nos. 138-8-10 Vtec, 1-1-11 Vtec,
slip op. at 4 (Vt. Super. Ct. Envtl. Div. Mar. 27, 2012) (hereinafter the “2012 Corrected Merits
Decision”).
Based upon the design specifications presented by Mr. Wood’s engineer, and after the
Town had its own engineer review and offer comments upon that design, Mr. Wood’s application
for a zoning permit for his proposed revised retaining wall was approved on October 14, 1999.
That permit became known as Permit #99-1180.
Shortly after Mr. Wood began stockpiling the concrete slabs and constructing the
retaining wall, the Town became concerned that Mr. Wood was not constructing the wall as
proposed and permitted. After several discussions between the parties did not resolve the
Town’s concerns, the Town served Mr. Wood with its first notice of alleged zoning violations
2
Mr. Wood is the sole owner of what is referred to as the Diner parcel. At the time of the 2010 litigation, he
owned the other parcel, referred to as the Club parcel, jointly with his then wife.
Town of Hartford v. Wood & Wood NOV & Permit Apps., No. 138-8-10 & 1-1-11 Vtec (EO on Post-Judgment Motion for
Relief) (09-19-2018) Page 3 of 19.
(“NOV”) and then an enforcement complaint. That litigation resulted in a judgment order in favor
of the Town. See Town of Hartford v. Wood, Nos. 72-3-00 Vtec, 91-5-00 Vtec, and 219-5-00 Wrcv
(Vt. Envtl. Ct. Sept. 24, 2001) (Wright, J.), aff’d 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 Mr. Wood. The undersigned
addressed all post-judgment motions and the matter was re-closed on March 6, 2008.
Several other actions, appeals, and pre- and post- judgment motions have been filed in
many dockets, all concerning Mr. Wood’s efforts to develop his Maple Street properties,
including reconstruction of the partially burnt Diner building.3 Those matters are procedurally
detailed in our Entry Order of June 1, 2018, cited above.
The Town has served Mr. Wood with multiple notices of alleged zoning violations (“NOV”)
over nearly two decades, all concerning his Maple Street properties. In the proceedings that are
the subject of Dockets Nos. 138-8-10 Vtec and 1-1-11 Vtec, Mr. Wood challenged the March 19,
2010 NOV served on him by the Town which detailed how his partially-constructed wall was
illegally constructed. The 2010 NOV also addressed how Mr. Wood had begun renovations and
other work to the buildings on the Diner and Club Parcels. Docket No 138-8-10 Vtec also
concerned Mr. Wood’s appeal of two of the Town Zoning Administrator’s determinations,
affirmed by the Town of Hartford Zoning Board of Adjustment (“ZBA”), that his two 2010
applications were incomplete and should be returned to him without decision. His first
application was for further revisions to his concrete slab retaining wall; his second application
was to construct a single-family home on the Diner parcel, presumably in place of the partially
burnt Diner building, which Mr. Wood had begun to reconstruct without a necessary permit. 4
Docket No. 1-1-11 Vtec was assigned to the Town’s zoning enforcement complaint that
was based upon the 2010 NOV.
The Court completed a trial on the coordinated appeals on July 22, 2011. After allowing
the parties additional time to file proposed findings of fact and conclusions of law, the Court
issued its 23-page Corrected Merits Decision on March 27, 2012, in which it announced its
conclusion that Mr. Wood had partially constructed his proposed retaining wall in a non-
conforming manner and that he had submitted incomplete permit applications. 5 Concerning the
wall, the Court specifically found that:
3
We note that we held Mr. Wood in contempt in separate dockets for continuing to make improvements to
the Diner building without a necessary zoning permit. In re Appeal of Wood, Nos. 121-7-03 Vtec & 185-10-04 Vtec
(Vt. Envtl. Ct. Apr. 16, 2008) (Durkin, J.). The Court specifically ruled that “Mr. Wood is enjoined from conducting
additional unpermitted construction activities on the Hartford Diner project site.” Id. at 8.
4
The undersigned recollects being told that the Diner building was partially destroyed by fire some time prior
to Mr. Wood filing his zooming permit application in 1998. There were later representations that the fire to the
Diner building occurred in the mid-2000s.
5
The Court issued its original Merits Decision and Judgment Order on February 22, 2012. The 2012 Corrected
Merits Decision and Judgment Order were 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 issued on February 22, 2012. None of
Town of Hartford v. Wood & Wood NOV & Permit Apps., No. 138-8-10 & 1-1-11 Vtec (EO on Post-Judgment Motion for
Relief) (09-19-2018) Page 4 of 19.
a. The concrete slabs actually used are by no means uniform in length, width or
thickness,6 as depicted in the engineer’s plan (Town Exhibit 7) and as specified
in the notes on that plan. Slab thickness varies from seven to ten inches; the
length and width varies as well, and many of the slabs have uneven surfaces,
resulting in non-uniform stacking.
b. The transverse (i.e., vertical) joints where the concrete slabs meet are not
offset, as directed by the engineer’s plans. See Town Exhibit 7 and Town
photos admitted as Town Exhibits 27, 29, 31, and 32. This lack of offset
compromises the physical integrity of the wall as constructed. Most all of
these joints have uneven vertical surfaces.
c. All of the vertical joints between the stacked slabs are wide and open; the
space between parallel stacks of slabs is much wider than the two to four
inches specified in the engineer’s design, and the pea stone that the design
requires to be used to fill the two- to four-inch joints does not appear to have
been installed. See Town Exhibit 7.
d. Most all of the slabs appear to have been hammered, resulting in uneven
edges and joints where the slabs abut one another. Few of these vertical ends
appear to have been sawn as the engineer required in his plan. See Town
Exhibit 7.
e. The stacked slabs appear to rise in a direct line, nearly ninety degrees from a
level plane at the base of the wall. The wall as constructed does not respect
the engineer’s directive that the face of the wall be angled back into the
Parcels, nor does the as-constructed wall respect the engineer’s directive that
the “[s]labs shall be set level or tilted so that the end furthest from the wall
face is lower than the front face” of the wall. Town Exhibit 7 at 1. As a
consequence of how the wall was actually constructed, it appears more likely
to teeter, and possibly fall, than it would be if constructed as designed.
f. Appellant offered no certification that the hammered, rather than sawn,
concrete slabs maintained their integrity after having been broken apart in
such a manner.
g. The wall as constructed is materially taller in height (by two feet on one end
and ten feet on the other) than the wall as designed. The total height of the
wall ranges from 10 feet to more than 30 feet.
h. The wall construction is not yet completed, as Appellant readily admitted.
Permit #99-1180 has now expired, however, and the Woods no longer have
authority to build the wall as permitted.
these corrections affect the substantive Findings, Conclusions or Order.” Town of Hartford v. Wood & Wood NOV
Appeal & Permit Applications, Nos. 138-8-10 Vtec & 1-1-11 Vtec, slip op. at fn. 1 (Mar. 27, 2012).
6
See photo of a portion of the wall along the southern boundary, admitted as Town Exhibit 34.
Town of Hartford v. Wood & Wood NOV & Permit Apps., No. 138-8-10 & 1-1-11 Vtec (EO on Post-Judgment Motion for
Relief) (09-19-2018) Page 5 of 19.
i. In addition to failing to complete the wall construction, the Woods have failed
to provide an engineer’s certification that the wall as constructed (though
incomplete) was constructed in compliance with Permit #99-1180.
j. The most credible evidence shows that Appellant constructed this wall not
wholly on his land, but also on the adjoining land owned by the Town and/or
others. See hatched area depicted on Town Exhibit 3(a).
k. Models prepared by Appellant and admitted into evidence of the wall as
constructed (Appellant Exhibit T) and the wall as designed and approved in
Permit #99-1180 (Appellant Exhibit W) fail to show that the wall was
constructed as designed. They also do not support Appellant’s assertion that
the wall as constructed is safer and more secure than the wall as designed.
In summary, the wall as constructed by Appellant materially deviates from the
wall as designed by Appellant’s engineer, the design that Permit #99-1180 gave
Appellant the authority to build.7
2012 Corrected Merits Decision at 7.
Concerning Mr. Wood’s appeal of the Town’s 2010 NOV, the Court concluded that the
credible evidence supported the Town’s allegations and upheld the NOV. In reaching this legal
conclusion, the Court specifically concluded that:
It is difficult for the Court to overstate the gravity of Appellant’s actions. He
has constructed a wall along, on, and over the boundaries of his property that
does not conform with his own design plans. The wall rises at a much steeper
vertical angle than his plans require. Appellant’s own engineer, when called upon
to do so at trial, could not calculate the vertical angle of the wall that Appellant
actually constructed. The wall includes hammered concrete slabs of varying
length, width, and thickness and with uneven surfaces, the integrity of which has
never been verified. The concrete slabs are stacked higher than specified in the
design and in a manner so that the vertical joints between the slabs are in line,
rather than offset, as directed by Appellant’s engineer. The vertical joints are wide
and open, larger than the engineer specified, and apparently not filled in by pea
stone as required. The weight of the concrete slabs was not estimated at trial but
is obviously many tons.
Because the wall was constructed along, on, and over Appellant’s boundary
line, any failure of the wall may cause it to topple onto adjacent Town properties
and highways, and adjacent private properties and homes. Failure of the wall
could cause serious property loss and personal injury, including death. The Court
7
This Court reached this same conclusion in In re Wood Certificate of Occupancy Request, Appellant’s appeal
of the Town’s denial of his request for a certificate of occupancy for the wall as constructed. No. 176-8-07 Vtec, slip
op. at 2 (Vt. Envtl. Ct. June 10, 2009) (Durkin, J.) (concluding that Marc Wood was not entitled to a certificate of
occupancy because “[i]t is indisputable that his project had not been completed in accordance with Permit #99-
1180”).
Town of Hartford v. Wood & Wood NOV & Permit Apps., No. 138-8-10 & 1-1-11 Vtec (EO on Post-Judgment Motion for
Relief) (09-19-2018) Page 6 of 19.
is at a loss to recall another zoning violation that has come before it with the
potential for such great calamity.
Id. at 16.
As to Mr. Wood’s appeals of the determinations that both of his permit applications were
incomplete, the Court concluded that:
Because of the location and height of Appellant’s wall, he was required to
provide “certification by a professional engineer on [the wall’s] design, structural
stability, and construction.” [Town of Hartford Zoning] Regulations § 260-28(D)
(requiring such certification for retaining walls more than 42 inches high).
Appellant provided none of these certifications. As is authorized by Regulations
§ 260-51, the Town employed an engineer to conduct “an independent technical
review” of Appellant’s application submissions and the wall he actually
constructed. That engineer provided the most credible assessment of Appellant’s
retaining wall and confirmed that Appellant’s current applications (both
Applications #12-10 and #13-10) fail to provide the necessary certifications and
specifications that would ensure that whatever wall Appellant hoped to complete
would be safe and in compliance with the Regulations. We conclude that
Appellant’s Application #12-10 is materially deficient. The Zoning Administrator
was obligated to deem this application incomplete and return it to Appellant.
We reach a similar conclusion as to Application #13-10. Appellant’s plans to
develop the Diner Parcel for single-family use rely upon the wall that he has
already constructed on that Parcel. That wall violates the Regulations and does
not comply with Permit #99-1180, which had expired at the time Appellant
submitted Application #13-10. When Appellant submitted this application, he
failed to provide any of the engineer certifications and design specifications for
the wall he had actually built or for the wall as modified by work he intended to
complete. As the Zoning Administrator properly concluded, no development may
be allowed on the Diner parcel, or either of the Woods’ Parcels for that matter,
without Appellant first providing the necessary engineering designs and
certifications concerning the retaining wall. We conclude that Appellant’s
Application #13-10 is materially deficient. The Zoning Administrator was obligated
to deem this application incomplete and return it to Appellant.
Id. at 20–21.
The Court then turned its analysis to the Town’s requests for injunctive relief and
penalties in its zoning enforcement action (Docket No. 1-1-11 Vtec). Based upon the credible
evidence presented, the Court granted the Town’s claims and imposed the following relief:
A. Marc Wood’s applications to bring his retaining wall on the Club Parcel into
compliance (Application #12-10) and to develop a single-family dwelling on
the Diner Parcel (Application #13-10) are incomplete, since neither application
includes the necessary engineering details or design specifications for his
Town of Hartford v. Wood & Wood NOV & Permit Apps., No. 138-8-10 & 1-1-11 Vtec (EO on Post-Judgment Motion for
Relief) (09-19-2018) Page 7 of 19.
retaining wall, either as actually constructed or as proposed, and neither
application includes the necessary certifications by a Vermont licensed
engineer. We therefore DEEM BOTH APPLICATIONS INCOMPLETE.
B. The notice of alleged zoning violations, dated March 19, 2010 and served upon
Marc Wood by the Town of Hartford Zoning Administrator, has a sufficient
factual and legal foundation and is therefore UPHELD. As a consequence of
committing the zoning violations evidenced by the 2010 notice of violations,
Marc Wood shall pay to the Town of Hartford penalties in the total amount of
$51,300.00.
C. As a consequence of the zoning violations they committed or allowed to be
committed on their Diner and Club Parcels, Marc and Susan Wood are hereby
ORDERED to immediately cease all construction activities and other
development on their Parcels and not begin any development on those Parcels
without first consulting with the Town of Hartford Zoning Administrator to
determine if a zoning permit is required for their proposed activities. If a
permit is necessary, Marc and Susan Wood cannot begin such development
without first submitting a complete application for a zoning permit to the
Town of Hartford Zoning Administrator or the appropriate municipal panel and
receiving the necessary permits. Any future development on these Parcels
shall only occur in strict conformity with any issued and outstanding zoning
permits.
D. Marc and Susan Wood shall remove the retaining wall located on the Diner
and Club Parcels, and all other unauthorized improvements on these Parcels,
either themselves or by hiring a qualified third-party contractor to do so. In
the event that either Marc or Susan Wood, or the both of them, conduct this
removal work themselves, they shall hire a professional engineer, licensed by
the State of Vermont, to conduct daily inspections of all the work they
conduct. Whether the Woods conduct the removal work themselves, or hire
a qualified third-party contractor to do so, they must also hire a Vermont
licensed professional engineer to file weekly reports with the Town of Hartford
Zoning Administrator, detailing and certifying the removal work conducted
each week until such work is complete. Such certifications shall specify the
work completed since any prior certification and disclose any material
deviations from any engineering plans approved by the Town.
E. Prior to beginning the removal work directed in ¶ D, above, Marc and Susan
Wood shall cause a Vermont licensed professional engineer to submit to the
Zoning Administrator a plan for the safe removal of the wall and unauthorized
improvements on the Diner and Club Parcels as well as a bank stabilization
plan that will dictate necessary safety precautions to be taken both during the
removal period and after removal. Both of these plans must be submitted, in
writing, to the Town of Hartford Zoning Administrator thirty days after the
Town of Hartford v. Wood & Wood NOV & Permit Apps., No. 138-8-10 & 1-1-11 Vtec (EO on Post-Judgment Motion for
Relief) (09-19-2018) Page 8 of 19.
engineer is selected in accordance with ¶¶ F and G, below. The removal work
directed in ¶ D, above, must be completed in conformance with these plans
and cannot commence until thirty (30) days after receipt of the plans by the
Zoning Administrator or until the Town approves such plans (whichever date
is later), as described in ¶ H, below.
F. The engineer whom the Woods employs for all of the work directed in ¶¶ D
and E, above, is subject to the approval of the Town. If the parties are unable
to agree on the engineer to be employed, each party shall submit the names
and resumes of one or more engineers acceptable to them to the Court and
the Court will thereafter select the engineer that the Woods shall employ to
complete this work.
G. Marc and Susan Wood shall submit to the Town of Hartford Zoning
Administrator the name and resume of the engineer they wish to employ for
all of the work directed in ¶¶ D and E, above, within thirty (30) days after the
Judgment Order that accompanies this Decision becomes final. If it wishes to
do so, the Town shall then have fifteen (15) days to give written notice to the
Woods of its rejection of their engineer. If the Town provides a timely notice
of its rejection of the Woods’ engineer, an engineer shall be selected pursuant
to ¶ F, above.
H. The Town shall have thirty (30) days from its receipt, as directed in ¶ E, above,
of the engineer’s plans to give written notice to Marc and Susan Wood and
their engineer of any concerns or objections to such plans. The lack of such
written notice from the Town shall constitute its approval of the plans. If the
Town raises concerns about or objections to the plans, Marc and Susan Wood
shall work with the Town to resolve the issues in a timely fashion and to adjust
the plans, if necessary, so that the Town is able to approve them. If the parties
are unable to resolve any material disagreement as to the design plans, the
parties shall submit their disagreement for resolution by the Court.
I. The engineer’s plans required in ¶ E, above, shall specify a reasonable period
of time for the removal and bank stabilization work to begin and be
completed. In the event that the engineer specifies more than sixty (60) days,
the engineer must specify the reasons for the delay.
J. Once all work is completed, Marc and Susan Wood shall employ the engineer
to conduct the necessary final site inspections so that the engineer may certify
to the Town and this Court that all work necessary for the removal of the
retaining wall and unpermitted improvements is complete and the resulting
earthen bank is stable.
Id. at 21–23.
Of particular note in these determinations is that the Court concluded that Mr. Wood did
not have the capacity to complete the necessary remedial work on his retaining wall without
Town of Hartford v. Wood & Wood NOV & Permit Apps., No. 138-8-10 & 1-1-11 Vtec (EO on Post-Judgment Motion for
Relief) (09-19-2018) Page 9 of 19.
supervision. Even though the trial and Merits Decision were completed more than six and a half
years ago, the undersigned continues to have a clear recollection of the contentiousness and
disparity of the parties’ presentations during the 2011 trial. In his most recent filings, Mr. Wood
continues to assert that the prosecution of his zoning violations has “maliciously barred [him]
from building on [his property] by a vindictive Town.” Mr. Wood’s Motion of V.R.C.P. 60(b) relief
from Judgment Order, filed on March 5, 2018, at 2. Mr. Wood continues to make these
accusations, even though the Town’s allegations of zoning violations have been found credible
by this Court and affirmed by the Supreme Court. Mr. Wood further asserts that the “Town has
had an agenda to prosecute Mr. Wood and habitually deny his permit applications since 1998.”
Id. However, it is uncontested that the Town approved his permit application in 1998 and issued
Permit #99-1180. The Town only began its enforcement efforts after Mr. Wood chose to not
build his retaining wall as designed by his engineer and approved by the Town.
Mr. and Mrs. Wood appealed this Court’s 2012 Corrected Merits Decision and Judgment
Order to the Vermont Supreme Court. The Supreme Court rejected their appeal and affirmed
this Court’s determinations. See In re Wood NOV & Permit Applications &Town of Hartford v.
Wood, 2013 VT 40, 194 Vt. 190.
The record reveals that Mr. Wood has had great difficulty comprehending the gravity of
this Court’s final Judgment Order directives, especially concerning the injunctive directives to
remove the unpermitted wall, retain engineers to confirm its safe removal, and to cease making
unpermitted improvements to the burnt-out Diner building. On May 30, 2014, the Town filed a
motion to enforce the 2012 Corrected Merits Decision and Judgment Order. In response, Mr.
Wood filed a motion for relief under V.R.C.P. Rule 60(b). The Court granted the Town’s motion
to enforce and for contempt and denied Mr. Wood’s motion for Rule 60 (b) relief. Town of
Harford v. Wood & Wood NOV & Permit Applications, Nos. 138-8-10 Vtec, 1-1-11 Vtec (Aug. 12,
2014).
In its Entry Order denying Mr. Wood’s motion for relief, the Court concluded that:
In his last filing, it appears that Mr. Wood is not seeking “relief” from a prior
judgment, but rather has filed his motion in response to the Town’s pending
motion for contempt. (Defendants [sic] Response to Towns [sic] Opposition to
Defendants [sic] Motion for Relief Under Rule 60(b)(3), filed June 18, 2014.) To
the extent that Mr. Wood intended to file his motion in response to the Town’s
contempt motion, we will consider it as we rule upon the Town’s pending
contempt requests.8
To the extent that Mr. Wood filed his pending motion in an effort to be
relieved from his responsibility to satisfy the final judgments of this Court,
including our 2012 Corrected Decision and Judgment Order, since affirmed by the
Vermont Supreme Court, we DENY his motion on two grounds. First, his motion
is untimely. Rule 60(b)(3) requires relief requests, even those based upon
allegations of fraud, to be presented to the trial court within one year of the
8
Mr. Wood has also filed a memorandum in opposition to the Town’s contempt motion.
Town of Hartford v. Wood & Wood NOV & Permit Apps., No. 138-8-10 & 1-1-11 Vtec (EO on Post-Judgment Motion for
Relief) (09-19-2018) Page 10 of 19.
judgment. Mr. Wood has waited over two years to seek relief from the judgment
for which the Town is now seeking the Court’s assistance in compelling Mr. and
Mrs. Wood to satisfy.
Second, even if we felt empowered to ignore the one-year limitation of Rule
60(b)(3), we conclude that Mr. Wood has failed to provide sufficient evidence of
the fraud he alleges. His filings are replete with conclusionary statements, but no
specific factual allegations. While he protests the Town’s response to his Rule
60(b)(3) motion, we cannot understand how to read his protestations, other than
as an attempt to have this Court absolve him and his Co-Defendant from satisfying
a two-year old judgment that long ago became final. In the absence of persuasive
facts to support his allegations of fraud, we cannot grant his request.
Mr. Wood appears to be tormented by the reality that he now faces: he fought
a decade-long litigation battle with the Town. The courts, including the Vermont
Supreme Court, found the Town’s arguments more credible and persuasive than
his. As a consequence, he must satisfy the final judgment rendered against him.
The outstanding legal issue is no longer whether that judgment should have been
entered against them, but rather how he and Mrs. Wood will (voluntarily or by
subsequent order of this Court) satisfy that judgment.
Id. at 1–2.
In granting the Town’s motion to enforce the 2012 Corrected Merits Decision and
Judgment Order, and seeking an order of contempt, the Court concluded that Mr. Wood owed
$10,664.76 in interest to the Town, even though he had by then paid the principal on the original
$51,300.00 fine. In regards to the Town’s requests concerning injunctive relief imposed by the
21012 Corrected Merits Decision and Judgment Order, the Court concluded that:
More troubling is Mr. Wood’s response to the Town’s assertion that he has
failed and refused to satisfy the injunctive directives contained in the Corrected
Judgment Order. That Order established specific timelines for Defendants to hire
a licensed engineer for the specific purpose of preparing “a plan for the safe
removal of the wall and [other] unauthorized improvements on the Diner and Club
parcels . . . .” Corrected Judgment Order at 2, ¶ E. The Town has provided
numerous extensions of the deadlines by which Defendants were to: (a) disclose
the engineer hired to prepare the plan required by the Court’s Order; (b) submit
the engineer’s plan and allow the Town to review and comment upon it; (c)
complete the removal work, once approved by the Town; and (d) arrange for their
engineer to certify that the removal work was completed according to the
approved plans. Id. at 1–3, ¶¶ C–J.
The undisputed facts presented show that Mr. Wood has allowed each
deadline and the agreed-upon extensions to pass without complying with the
Court’s Order. The exhibits presented by Mr. Wood reveal that the engineer he
hired may not be aware of the directives of this Court (especially the directive that
Town of Hartford v. Wood & Wood NOV & Permit Apps., No. 138-8-10 & 1-1-11 Vtec (EO on Post-Judgment Motion for
Relief) (09-19-2018) Page 11 of 19.
the offending wall and other structures be removed) and that Mr. Wood, instead,
may have hired the engineer to perform services directly counter to the Order. He
has refused the Town’s request to receive direct verification from the engineer
that he is even aware of the terms of the Court’s Order.
Mr. Wood continues to assert that his unpermitted and dangerous structures
should be allowed to remain on his property, even after nearly fifteen years of
disputes with the Town, Court rulings against him, and affirmances of those orders
by the Vermont Supreme Court. While Mrs. Wood appears to be less complicit
and more of a silent partner in her husband’s unpermitted commercial endeavors,
she has taken no actions towards conforming to the Court’s two-year-old
Judgment Order.[9]
For all these reasons, we find both Mr. and Mrs. Wood in CONTEMPT of this
Court’s March 27, 2012 Corrected Judgment Order. In GRANTING the Town of
Hartford’s motion to enforce, we do hereby ORDER Mr. and Mrs. Wood to do the
following within the next thirty days (i.e.: no later than 12:00 Noon on 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 their engineers, Souhegan Valley Engineers, Inc.,
as well as a copy of this Entry Order;
3. Authorize their 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.
Mr. Wood professes a desire to comply with this Court’s Order. His actions
contradict his words. He asserts that the Town has defrauded him and the Court,
but he offers no specific facts to support that assertion. We find his accusations
against the Town not credible.
We have specifically deferred our ruling upon the Town’s request to direct that
Defendants reimburse the Town for its [additional] attorneys’ fees and expenses
in seeking the Defendants’ conformance with this Court’s Order. We intend to
rule upon that request after we determine whether Defendants cure their
contempt, as directed by this Entry Order. We direct that the Town prepare an
9
In fact, the Court clarified that this Court’s monetary fines were directed solely to Mr. Wood, as the only active
owner/developer of the property. Town of Harford v. Wood & Wood NOV & Permit Applications, Nos. 138-8-10
Vtec, 1-1-11 Vtec, slip op. at 2 (March 3, 2015) (Durkin, J.).
Town of Hartford v. Wood & Wood NOV & Permit Apps., No. 138-8-10 & 1-1-11 Vtec (EO on Post-Judgment Motion for
Relief) (09-19-2018) Page 12 of 19.
accounting of all of its past and continuing expenses, so that the Court may review
and rule upon the reimbursement of those expenses, if warranted.
Town of Hartford v. Wood & Wood NOV Appeal & Permit Applications, Nos. 138-8-10 Vtec, 1-1-
11 Vtec, slip op. at 1–2 (Aug. 12, 2014).
We deferred a ruling upon the Town’s motion for further penalties and reimbursement
of attorneys’ fees in light of Mr. Wood’s contempt, all in an effort to provide Mr. Wood with
another incentive to bring his properties into compliance with this Court’s Corrected Judgment
Order and the Town Zoning Regulations.
Despite this Court’s directives, Mr. Wood allowed the revised September 12, 2014
deadline to pass without bringing his properties into compliance, either in regards to the
retaining wall or the Diner building.
The Court was next called upon to consider Mr. Wood’s compliance when a motion was
filed “to clarify corrected judgment order” on March 7, 2016, by Mr. Wood’s then attorney, Kelli
J. Rockandel, Esq. By this motion, Mr. Wood asked the Court to clarify what portions of the Diner
building were regarded as “unauthorized improvements.” Defendants’ Motion, filed March 7,
2016, at 1. The parties had attempted to come to an agreement on what portions of the then-
partially reconstructed Diner building should be regarded as “unauthorized improvements” and
must therefore be removed. See correspondences attached to the March 7, 2016 Motion as
exhibits. The parties could not come to an agreement on which portions of the Diner building
must be removed, so the Court set the matter for hearing. However, that hearing was delayed,
principally due to requests from Mr. Wood. See Entry Orders filed on April 13, 2016, July 5, 2016,
and August 8, 2016. The hearing was also delayed due to Attorney Rockandel’s request to
withdraw as Mr. Wood’s attorney and the request by Mr. Wood’s new attorneys—Katelyn
Ellerman, Esq. and Hans Heussey, Esq.—to be afforded sufficient time to review the history of
these actions and to prepare for the hearing.
The Court conducted the hearing on Mr. Wood’s motion to clarify on August 30, 2016, at
the Vermont Superior Court, Civil Division in Woodstock, Vermont. The Court attempted to
clarify its 2012 Corrected Judgment Order directives on the record of that hearing and otherwise
denied his motion. The Town’s attorney reminded the Court that its requests were still
outstanding for reimbursement of attorneys and other costs as a consequence of Mr. Wood’s
contempt, found by the Court in its August 12, 2014 Entry Order. The Court therefore directed
the Town to itemize the fees and expenses for which the Town was seeking reimbursement from
Mr. Wood, and the Court then allowed both parties an opportunity to file post-hearing
memoranda, proposed finding of fact and conclusions of law. Those filings were then completed
on November 6, 2016 and the Court issued its 2017 Revised Decision on Post-Judgment Motions
on April 3, 2017.10 In the 2017 Revised Decision, the Court announced the following factual and
legal conclusions:
10
The Court issued its original Decision on Post-Judgment Motions on March 1, 2017. On March 13, 2017, he
Town filed its Motion to Alter or Amend that Decision to correct a typographical error in ¶ 19(i), to add the deadline
of “November 15, 2017” to ¶ A of the Order on page 8, and clarifying the revision to Note 4 (see ¶19(c) on page 6)
Town of Hartford v. Wood & Wood NOV & Permit Apps., No. 138-8-10 & 1-1-11 Vtec (EO on Post-Judgment Motion for
Relief) (09-19-2018) Page 13 of 19.
1. . . ..
2. These cases, and their predecessors, have presented several challenging legal
issues, all of which have been addressed on multiple occasions by this Court and
the Vermont Supreme Court. The fact that Mr. Wood has allowed the
unpermitted structures to remain on his properties for multiple years, after
multiple court orders, would normally cause a reviewing court to doubt Mr.
Wood’s credibility. We have concluded, however, that a more troubling
consequence is at work: because of his persistence to develop his property, even
when his permit applications have either been denied or deemed incomplete, and
his conviction that officials at the Town of Hartford have acted to thwart his
development efforts without just cause, this Court has concluded that Mr. Wood
does not have the ability to clearly review and accept this Court’s directives, even
when affirmed by the Vermont Supreme Court.
. . ..
4. Mr. Wood, both directly and through his attorney, stated at the hearing that
his current motion to clarify was “solely” focused upon his efforts to save that
portion of the “Diner” building that was not destroyed by fire and was not
improved in violation of the zoning regulations. We address those claims below.
However, while not specifically stated, Mr. Wood appeared at various times to
also argue for a “clarification” of whether he was obligated to remove all of the
cement slabs used in his construction of the retaining wall.
. . ..
7. The Diner building was substantially (i.e. more than fifty percent) destroyed by
fire nearly ten years ago. The building has no roof and is missing at least one full
exterior wall.
8. Mr. Wood was unable during the hearing to provide a credible summary of the
work he wishes to complete to secure the Diner, absent work that would be more
rehabilitative in nature and for which he would need, but has yet to receive, a
zoning permit.
9. The credible evidence received has convinced the Court that the property can
only be made safe by the complete removal of what remains of the Diner building.
2017 Revised Decision at 3–4.
Based upon these factual findings, and in light of the Town’s repeated requests that this
Court find Mr. Wood in additional contempt, the Court announced two legal conclusions. First,
as to the removal of the offending portions of the Diner building, the Court concluded that:
by removing the phrase “as part of this project.” The Court thereafter issued its Revised Decision. See Town of
Hartford v. Wood & Wood NOV Appeal & Permit Applications, Nos. 138-8-10 Vtec, 1-1-11 Vtec, slip op. at fn. 1 (Apr.
3, 2017) (hereinafter referred to as “2017 Revised Decision”).
Town of Hartford v. Wood & Wood NOV & Permit Apps., No. 138-8-10 & 1-1-11 Vtec (EO on Post-Judgment Motion for
Relief) (09-19-2018) Page 14 of 19.
. . .. As outlined in the first pages of this Decision, the [2012] Corrected Merits
Decision and Judgment Order that is the focus of Mr. Wood’s motion was issued
nearly five years ago and was affirmed by the Vermont Supreme Court over three
and a half years ago. The applicable time limitations for amendments or
reconsiderations of judgment under V.R.C.P. 59 and 60 have long since passed.
We were grateful to learn that Mr. Wood has taken the steps to satisfy the
penalty provisions of this Court’s judgment. However, we remain very troubled
that the offending wall remains on site and that little actual site work has begun
to remove the offending structures, even up through the date of our August 30,
2016 hearing on the pending motions.
In light of the procedural history of this litigation, and the litigation that
preceded it, and the credible evidence presented at the post-judgment motions
hearing, we conclude that Mr. Wood is incapable of differentiating between those
portions of the Diner parcel that remain undamaged by fire and that may be
rehabilitated without first obtaining a zoning permit [and those portions that were
constructed without a permit]. We therefore CLARIFY our Corrected Merits
Decision and Judgment Order by directing that Mr. Wood cause the entirety of the
remnants of the Diner building to be removed from his properties.
Id. at 7.
Turning to the Town’s request that Mr. Wood be held further in contempt and directed
to reimburse the Town for its additionally-incurred attorneys’ fees, the Court concluded that:
Lastly, we take up the Town’s claim that the Court should hold Mr. Wood in
[additional] contempt and direct that he be ordered to cure such contempt and
reimburse the Town for the additional attorneys’ fees that were necessitated by
Mr. Wood’s contempt. By Mr. Wood’s own admission, he has failed to satisfy the
injunctive directives of this Court’s prior orders. While there has been some
legitimate basis for confusion over some details for the wall removal and slope
stabilization, the uncontested testimony was that Mr. Wood has failed, some five
years after judgment, to even begin the process to set up and begin the
dismantling of the unpermitted structures. In fact, and incredibly, it appears that
up until just prior to the August 30, 2016 hearing, Mr. Wood was still attempting
to convince his engineer and the Town officials to allow his unpermitted wall to
remain on the property. All these actions evidence a contempt of the Court’s
order of nearly five years ago.
The Town has incurred over $20,000.00 in additional legal fees and expenses
in its efforts to convince Mr. Wood to voluntarily satisfy the Court’s judgment. The
fees and expenses claimed by the Town are reasonable in this Court’s judgment,
particularly in light of Mr. Wood’s contemptuous responses and the efforts the
Town was required to expend. We therefore will direct that Mr. Wood reimburse
the Town $20,000.00 for the fees and expenses he has caused the Town to incur,
Town of Hartford v. Wood & Wood NOV & Permit Apps., No. 138-8-10 & 1-1-11 Vtec (EO on Post-Judgment Motion for
Relief) (09-19-2018) Page 15 of 19.
provided however that Mr. Wood shall be entitled to a $6,000.00 credit, that the
Court has fashioned as an incentive to complete the needed work on a timely
basis.
Id. at 8.
By this ruling, we again attempted to provide Mr. Wood with an incentive to cure his
contemptuous conduct, some five years after our original Merits Decision, four years after the
Supreme Court affirmed that Decision, and three years after this Court had found Mr. Wood in
contempt of the 2012 Corrected Merits Decision. Nonetheless, the Court extended the deadline
for Mr. Wood to bring his property into conformance, until November 15, 2017, and provided
him with a $6,000.00 credit against the $20,000.00 awarded the Town in reimbursement of its
attorneys’ fees and expenses, if he were to meet that deadline.
Mr. Wood chose to let that deadline pass, without bringing his property into
conformance, without filing a timely appeal from our 2017 Revised Decision, and without filing a
V.R.C.P. 60(b) motion until after that deadline had passed.
Nearly one year after our 2017 Revised Decision, on March 5, 2018, Mr. Wood filed the
present Rule 60(b) motion to be relieved from the monetary and injunctive provisions of our 2017
Revised Decision, finding that he had failed, without justification, to comply with this Court’s
2012 Corrected Merits Decision and Judgment Order.11 Mr. Wood now specifically requests that
he be relieved from reimbursing the Town for its additional $20,000.00 in attorneys’ fees and
expenses, and he now challenges this Court’s jurisdiction to order that he remove the entire Diner
building.12
Mr. Wood’s Rule 60(b) motion is the only post-judgment motion pending in these two
appeals. We therefore look to that procedural rule for guidance on how to consider Mr. Wood’s
pending requests.
Analysis
Mr. Wood now asks the Court to reconsider its order that he remove the entire Diner
building, and that the Court vacate its order that he reimburse the Town $20,000.00 in expenses.
Attorney Simon, on Mr. Wood’s behalf, also asserts that the Court should vacate its 2017 Revised
Decision because it lacked subject matter jurisdiction to render some or all of those
determinations.
1. Timeliness
Under Civil Rule 60(b), a trial court may relieve a party from a final judgment, order, or
proceeding, in relevant part, for the following reasons: “(1) mistake, inadvertence, surprise, or
11
Both parties have referred to Mr. Wood’s latest Rule 60(b) motion as being dated March 1, 2017. While that
is accurate, Mr. Wood did not cause his motion to be filed with the Court until March 5, 2017. We refer to the filing
date as the operative date for purposes of our analysis under Rule 60(b).
12
It is not clear from the parties’ filings whether Mr. Wood has already reimbursed the Town this $20,000.00,
and is now requesting that payment’s return, or has not yet paid and is requesting to be relieved from that obligation.
This lack of clarity does not impact upon our analysis of Mr. Wood’s Rule 60(b) motion.
Town of Hartford v. Wood & Wood NOV & Permit Apps., No. 138-8-10 & 1-1-11 Vtec (EO on Post-Judgment Motion for
Relief) (09-19-2018) Page 16 of 19.
excusable neglect . . . (3) fraud . . . misrepresentation, or other misconduct of an adverse party;
or (6) any other reason justifying relief from the operation of the judgment.” V.R.C.P. 60(b).
Any motion filed pursuant to Rule 60(b) must be filed within a “reasonable time,” and
those filed under 60(b)(1) or (3) must be made within “one year after judgment, order, or
proceeding was entered or taken.” Id. Our reading of Mr. Wood’s pending motion is that he is
requesting relief under subsections (1), (3) and (6).
By his motion, Mr. Wood argues that the Court made a “mistake” in this matter, and that
the Court was “misled” by the Town and its attorney. Mot. for Relief from Judgment at 4, 5. In
Mr. Wood’s Reply to the Town’s opposition to his pending motion, he adds that he is moving for
relief pursuant to Rule 60(b)(6) because he alleges that the Court did not have subject matter
jurisdiction over “relevant fixtures located on the Wood Property.” Reply at 2.
The Town argues that the pending motion was not timely filed, in part because it comes
more than one year after our March 1, 2017 Decision. Mr. Wood responds that the motion is
timely, both because it was filed less than one year from our April 3, 2017 Revised Decision, and
the one-year timeframe does not apply to Rule 60(b)(6) motions. Because Mr. Wood filed his
motion with the Court on March 5, 2018, we conclude that it was filed within one year after our
Revised Decision.
The time restriction set out in Rule 60(b) has two conjunctive parts. First, the motion
must be filed in a reasonable time. Second, in addition to this, motions filed under 60(b)(1) or
(3) must be filed within one year. Our interpretation of the Rule is that, even when a motion filed
under subsections (1) or (3) are filed within the one-year deadline, we must still determine if it
was filed “within a reasonable time.” Id.
Here, we ordered the Woods to remove any “unauthorized improvements” on March 27,
2012, five years before he filed the pending motion. That determination was affirmed by the
Supreme Court four year ago. Two years after our 2012 ruling, we found the Mr. Wood had failed
to comply with that order, and denied his motion for relief from it. Two years after that, Mr.
Wood again sought clarification on what the Court meant by “unauthorized improvements.” In
our April 3, 2017 Decision we concluded that Mr. Wood had shown that he was incapable of
differentiating from the remnants of the burnt Diner and the improvements that he had
unlawfully made, a distinction that the Court made in its 2012 ruling requiring the removal of
such “unauthorized improvements.” We therefore concluded that “the property can only be
made safe by the complete removal of what remains of the Diner building.” 2017 Revised
Decision at 4, ¶ 9. We made this determination based upon the credible evidence presented,
Mr. Wood’s continued confusion and request that we clarify which portions of the Diner parcel
needed to be removed (even when he was unable to describe how to distinguish between the
two), and the fact that the Diner building had been substantially (i.e. greater than 50%) destroyed
by fire some ten or more years prior.
Now, nearly a year after that April 3, 2017 Decision was issued, Mr. Wood sought relief
from it. We conclude that because of all the procedural circumstances cited above, Mr. Wood’s
motions under subsections (1), (3) and (6) were not filed within a “reasonable time.”
Town of Hartford v. Wood & Wood NOV & Permit Apps., No. 138-8-10 & 1-1-11 Vtec (EO on Post-Judgment Motion for
Relief) (09-19-2018) Page 17 of 19.
Further, we are reminded that a Rule 60(b) motion should not be allowed to “function as
a substitute for a timely appeal.” Tetreault v. Tetreault, 148 Vt, 448, 451 (1987); see also
Richwagen v. Richwagen, 153 Vt. 1, 3 (1989). We are further reminded that Rule 60(b) relief
“should only be applied in extraordinary circumstances.” John A. Russell Corp. v. Bohlig, 170 Vt,
12, 24 (1999). We conclude that Mr. Wood has not presented evidence of “extraordinary
circumstances” that would justify vacating our 2017 Revised Decision.
In his pending motion, Mr. Wood seeks relief not from a merits decision, but rather from
a decision that found him in contempt of a previously issued merits decision, one made final four
years earlier by the affirmation issued by the Vermont Supreme Court. Mr. Wood’s pending
arguments do not so much cite to mistakes made by this Court in its original or supplemental
rulings. Rather, Mr. Wood now appears to assert challenges to the contempt findings that should
have been raised in a timely appeal from our April 3, 2017 contempt determinations. Mr. Wood
doesn’t so much argue that we were mistaken on the facts or the law, but that we should have
denied the Town’s contempt requests and ruled in his favor. Those arguments would have been
more appropriate to raise in a timely appeal.
Even though we conclude that Mr. Wood’s motion is untimely, we turn to address the
merits of Mr. Wood’s request.
2. Subject Matter Jurisdiction Over the Diner Remnants
First, we address Mr. Wood’s most recent challenge: that this Court asserted jurisdiction
over the Diner building where it had not done so before. The long procedural history of these
litigations serves to refute Mr. Wood’s assertion. The present matter concern’s Mr. Wood’s
appeal of the 2010 NOV and the Town’s subsequent enforcement of the NOV. The 2010 NOV
addressed multiple alleged violations on Mr. Wood’s property including renovations and related
work on the Diner building. In fact, removal of the unlawfully improved portions of the Diner
building was a subject during the 2011 trial and in the 2012 Corrected Merits Decision in this
coordinated action, as noted above.
In fact, Mr. Wood’s claims concerning the Diner building and the Town’s allegations that
he had illegally improved the Diner building have been the subject of multiple litigations over the
course of the last fifteen years. See In re Appeal of Wood, Nos. 121-7-03 Vtec, 185-10-04 Vtec
(Vt. Envtl. Ct. Apr. 16, 2008) (Durkin, J.); In re Appeal of Wood, Nos. 185-10-04 Vtec, 174-8-05
Vtec (Vt. Envtl. Ct. Apr. 13, 2006); In re Appeal of Wood, No. 185-10-04 Vtec (Vt. Envtl. Ct. Dec.
21, 2007) (Durkin, J.). In these and many other Dockets, Entry Orders, and Decisions, we
addressed the Town’s claims that Mr. Wood was making improvements to the Diner building that
were not authorized by a zoning permit. Mr. Wood made many claims that he didn’t need a
zoning permit for the Diner work that he had performed. In all instances, the credible evidence
convinced the Court to rule in the Town’s favor.
In fact, in two separate Dockets, Mr. Wood claimed that he was entitled to an amended
permit and certificate of occupancy (“CO”) for his buildings and property. See In re Wood Zoning
Permit Amendment Appeal, No. 81-4-07 Vtec (Vt. Envtl. Ct. Aug. 27, 2007) (Durkin, J.); In re Wood
Certificate of Occupancy Appeal, No. 176-8-07 Vtec (Vt. Envtl. Ct. June 10, 2009) (Durkin, J.). In
Town of Hartford v. Wood & Wood NOV & Permit Apps., No. 138-8-10 & 1-1-11 Vtec (EO on Post-Judgment Motion for
Relief) (09-19-2018) Page 18 of 19.
the CO appeal, Mr. Wood claimed that he had sufficiently completed the work on his retaining
wall and Diner building so as to be entitled to a CO. However, this Court concluded that Mr.
Wood had not completed his work in compliance with a zoning permit. Id. at 2.
In summary, Mr. Wood’s work on the Diner parcel, including work on the Diner building,
and his failure to abide by the permit conditions or zoning regulations in completing that work
had been the subject of multiple litigations and multiple written decisions over the past nearly
fourteen years. We have addressed the legality of Mr. Wood’s work on the Diner parcel because
Mr. Wood had raised those legal issues in the Statements of Questions that are too numerous to
count. Yet, in each instance, we have thoroughly reviewed the legal challenges Mr. Wood has
presented, balanced them against the arguments offered by the Town, and ruled as the law
requires. In every instance where Mr. Wood has challenged our factual and legal determinations
in an appeal to the Vermont Supreme Court, his appeal has failed.
For all these reasons, we conclude that jurisdiction over Mr. Wood’s improvements to the
burnt-out Diner building was conferred on this Court by the legal issues that Mr. Wood presented
in his appeal of the 2010 NOV and the subsequent enforcement action. We therefore cannot
adopt Mr. Wood’s present argument that this Court did not have the jurisdiction to order removal
of the whole Diner building in its April 3, 2017, Revised Decision on Post-Judgment Motions.
We find further support for our 2017 Revised Decision in the purpose for that Decision:
we were addressing the Town’s additional motion for sanctions, due to a previous finding that
Mr. Wood had been in repeated contempt of this Court’s 2012 Corrected Merits Decision. At the
August 30, 2016 hearing on the pending post judgment motions, the Court was dismayed by the
fact that Mr. Wood, even at this late date, could not distinguish what lawfully remained of the
Diner building and explain what work he had completed without a necessary permit. The Diner
building had by then sat incomplete and severely damaged by a fire that consumed more than
half of the building. Much of its roof and most of one wall were gone. Given all these
circumstances, and as a consequence of Mr. Wood’s continued contempt and disregard of this
Court’s multiple orders, we concluded that he should be ordered to remove the entirely of the
Diner building.
We continue to believe that our April 3, 2017 rulings were supported by substantial facts
and applicable law. We therefore decline to reverse that ruling.
3. Reasonableness of the $20,000 Reimbursement
For similar reasons, we decline to reverse our sanction against Mr. Wood, requiring him
to reimburse the Town for the additional $20,000.00 in attorneys’ fees and expenses incurred by
the Town as a direct result of Mr. Wood’s further contempt of this Court’s prior final orders. In
these two Dockets alone, our April 3, 2017 Revised Decision represents the third instance where
we concluded that Mr. Wood has failed to address the injunctive measures directed by the Court
concerning the development of his properties. Mr. Wood now claims that he is not capable of
paying the imposed sanctions, and yet he has failed to present any specific evidence of his
inability to pay. In fact, he has satisfied the prior monetary sanctions imposed by this Court.
Town of Hartford v. Wood & Wood NOV & Permit Apps., No. 138-8-10 & 1-1-11 Vtec (EO on Post-Judgment Motion for
Relief) (09-19-2018) Page 19 of 19.
The Court again finds it astonishing that Mr. Wood, even while satisfying the monetary
sanctions that this Court has imposed, continues to defy the injunctive directives of this Court.
On several occasions, we have offered to waive a portion of the monetary sanctions imposed
upon him, if Mr. Wood would simply return his property to a safe and lawful condition. Mr. Wood
has elected to not take advantage of those fine waivers.
The Court established a procedure whereby the Town was required to itemize the
additional attorneys’ fees and expenses that it sought from Mr. Wood, and then Mr. Wood was
provided with several months in which to examine and challenge the Town’s itemization. Mr.
Wood did not specifically challenge any or the Town’s fee requests. In the absence of a credible
challenge, we decline to revise our previous ruling.
4. Town’s Request for Reimbursement of Further Attorneys’ fees
Lastly, we turn to the Town’s most recent claim for reimbursement of additional
attorneys’ fees and expenses, contained in the Town’s responses to Mr. Wood’s post-judgment
motion for relief. See Town’s Opposition Memoranda, filed on April 3, 2018 and June 28, 2018.
We decline to consider the Town’s most recent reimbursement requests at this time.
While the Town clearly stated its requests in both of its Opposition Memoranda, there had not
been a specific motion filed, seeking those reimbursements. Without a motion, there has not
been sufficient notice to Mr. Wood, or the Court, of the basis and specificity of the Town’s claims.
We also hope that, with a new attorney assisting him, Mr. Wood and his attorney will
seek to review with the Town those claims, as well as avenues for bringing some finality to these
long-running litigations.
Conclusion
For the foregoing reasons, we DENY Mr. Wood’s motion for relief from our 2017 Revised
Decision. As such, we re-close these matters.
So Ordered.
Electronically signed on September 19, 2018 at Burlington, 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
Brice C. Simon (ERN 4545), Attorney for Appellant Marc Wood
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