Punderson 2-Lot SD - Decision on Motion ( 2019 )

STATE OF VERMONT
SUPERIOR COURT ENVIRONMENTAL DIVISION
Docket No. 106-10-18 Vtec
Punderson 2-Lot Subdivision
ENTRY REGARDING MOTION
Count 1, Municipal DRB Subdivision (106-10-18 Vtec)
Title: Motion to Enforce Stay & for Sanctions (Motion 3)
Filer: Mary Anne Sullivan, Martha Sullivan, and the Lois Sullivan Revocable Trust
Attorney: Alexander J. LaRosa
Filed Date: August 28, 2019
Response in Opposition filed on 09/03/2019 by Attorney Ebenezer Punderson for
Appellee Frank Punderson
The motion is GRANTED IN PART and DENIED IN PART.
Mary Anne Sullivan, Martha Sullivan,1 and the Lois Sullivan Revocable Trust, hereinafter
referred to as Appellants, have appealed from the denial of their request for reconsideration of
the approval of subdivision and development rendered by the Town of Salisbury Development
Review Board (“DRB”). Appellants also sought a stay of the authority rendered by the DRB
approval. However, by Entry Order filed on March 29, 2019, this Court determined that
Appellants’ stay motion was moot, since an automatic stay of this specific determination is
created by 24 V.S.A. § 8504(f)(1)(B).
Appellants filed the current motion once they discovered that construction was occurring
on the subject property. In response to the filing of this motion to enforce the automatic stay
and for assessment of sanctions, Appellee/Applicant Frank Punderson (“Applicant”) advised that
he had not conducted or authorized the complained-of construction. Rather, Applicant advised
that he had negotiated a sale of the subject property with a contractor, and that that contractor
1
The Court has been made aware that, during the pendency of this appeal, Co-Appellant Martha Sullivan
has passed. The undersigned extends his sympathies to Ms. Sullivan’s family.
Upon a formal motion pursuant to V.R.C.P. 25(2), the Court will remove Martha Sullivan from this action as
a listed Appellant and will allow the appeal to proceed in the name of the surviving Appellants. We provided a similar
suggestion in a footnote to our March 29, 2019 Entry Order. No such motion has been filed to date; we therefore
continue to list Ms. Sullivan as an Appellant in this matter.
In re Punderson 2-Lot Subdivision, No. 106-10-18 Vtec (EO on Motion to Enforce Stay) (09-27-2019) Page 2 of 3.
had taken it upon himself to begin construction on the property, without advising Applicant or
Appellants. Applicant further advised that he has directed that contractor to cease all
construction activities and to not re-enter the property. Applicant further advised that he had
notified the Town of Salisbury Zoning Administrator (“Administrator”) and that the Administrator
reported that he had visited the property and confirmed that construction activities had ceased.
Thus, the uncontested material facts presently before us are that, in the face of the
automatic stay statutorily imposed in this appeal, a third-party contractor entered onto
Applicant’s property and began constructing a single-family residence without prior notice to
Applicant, the Administrator, or Appellants. Upon becoming aware of the construction, Applicant
instructed the contractor (not a party to this litigation) to immediately ceased his activities and
remain off the property. The Administrator then independently verified that construction had
stopped.
Given that the automatic stay imposed in this appeal by 24 V.S.A. § 8504(f)(1)(B) has not
been voided or lifted by this Court, we hereby GRANT Appellants’ motion to enforce that stay.
We direct that neither Applicant nor anyone invited or acting under his authority may enter upon
this property to conduct activities authorized by the approval that has been appealed to this
Court. The automatic stay of that permit authority shall only be lifted upon the completion of
this litigation or further order of this Court.
Appellants also move for this Court to impose sanctions upon Applicant as a consequence
of this violation of the automatic stay provision. As Appellants correctly note, this Court has the
inherent authority to impose sanctions upon a party to litigation. Lamell lumber Co. v. Newstress
Int’l, Inc., 2007 VT 83, ¶ 23, 182 Vt. 282, 296. Our Supreme Court has noted that trial courts are
vested with this inherent discretionary authority “to protect the integrity of the judicial system
or ‘instill respect in both litigants and litigators for the law and the legal process.’” Id. (quoting
Van Eps v. Johnston, 150 Vt. 324, 327–28 (1988)).
Appellants request that this Court consider three types of sanctions: (1) an award of fines
and penalties; (2) order removal of all construction development; and (3) award Appellants
reimbursement of the costs they incurred for seeking a stay and its enforcement.
Given that the final outcome of this litigation is undetermined, we defer any consideration
of ordering Applicant to remove the partially completed development. Appellants have not
detailed the costs that they have incurred in preparing and submitting either the pending motion
or the original motion for stay, filed with the Court on November19, 2018. However, we
recognize that Appellants have incurred some considerable expense in pursuing an enforcement
of this automatic statutory stay, given the filings made to date. We therefore conclude that it is
appropriate to impose a sanction of $300.00 upon Applicant, to be paid to Appellants as a
reimbursement of a small portion of the fees incurred in enforcing the statutory stay. We believe
that it would be appropriate for the offending contractor to reimburse Applicant for this sanction.
However, since that contractor is not a party to this litigation, we do not believe that we have
the authority to direct such a reimbursement. We therefore leave it to Applicant to demand
reimbursement, in connection with their efforts to complete the sale of any property and release
of the site improvements to this contractor.
In re Punderson 2-Lot Subdivision, No. 106-10-18 Vtec (EO on Motion to Enforce Stay) (09-27-2019) Page 3 of 3.
We decline to impose further sanctions upon Applicant. For these reasons, we grant in
part and deny in part Appellants’ pending motion.
We request that our Court Operations Manager set this matter for a status conference so
that the undersigned may discuss final trial preparations with the parties.
So Ordered.
Electronically signed on September 27, 2019 at Newfane, Vermont, pursuant to V.R.E.F. 7(d).
________________________________
Thomas S. Durkin, Superior Judge
Environmental Division
Notifications:
Alexander J. LaRosa (ERN 5814), Attorney for Appellants Mary Anne Sullivan, Martha Sullivan,
and the Lois Sullivan Revocable Trust
Ebenezer Punderson (ERN 3701), Attorney for Appellee Frank Punderson
James F. Carroll (ERN 1907), Attorney for Interested Person Town of Salisbury
vtadsbat