aerie point v. vorsteveld farm ( 2024 )

Vermont Superior Court
Filed 91/08 24
Addlson nlt
STATE OF VERMONT
SUPERIOR COURT CIVIL DIVISION
ADDISON UNIT Docket N0. 72-4-20 Ancv
AERIE POINT HOLDINGS, LLC,
Plaintiff,
V.
VORSTEVELD FARM, LLP,
Defendant
Decision:
Motion to Find Defendant in Contempt of Court
and to Enforce August 15, 2022 Judgment (Motion # 20)
This is a post judgment motion in which Plaintiff seeks sanctions for contempt
and enforcement of an injunctive judgment. An evidentiary hearing was held on
December 11, 12, and 14, 2023. Vicki Hopper was present on behalf of Plaintiff Aerie
Point Holdings LLC, which was represented by Attorney Merrill E. Bent. Hans
Vorsteveld and Gerard Vorsteveld were present on behalf of Defendant Vorsteveld Farm
LLC, which was represented by Attorney Claudine C. Safar.
Based on the evidence, the court makes the following Findings of Fact,
Conclusions of Law, and Order.
Findings of Fact
On March 28, 2022, after a multi-day court trial, this court issued a Decision in which it
found and concluded that Defendant Vorsteveld Farm LLC (hereinafter “Farm”) had committed
trespass and nuisance against the land of its downslope neighbor Plaintiff (hereinafter “Aerie
Point”) by increasing the volume and velocity of water discharged into two streams that crossed
Aerie Point land. This occurred as a result of the installation of an extensive tile drainage system
on the Farm’s farmland, the discharge occurring in a manner that caused damage in a number of
ways including erosion of land and deposits of sediment and phosphorous. Aerie Point sought
only injunctive relief to stop the ongoing damage from the effects of the increased volume and
velocity of the water and the particles it carried.
On May 16, 2022, following the Decision and in preparation for a judgment, the court
issued an entry order with proposed language for the portion of the injunctive judgment related
to water, and thereafter provided multiple opportunities for input from the parties on the terms of
the injunctive order. No objections were raised or alternatives proposed.
On August 15, 2022, the Judgment issued with language unchanged from the proposal:
Defendant is enjoined from allowing water, and any particles it carries, from
flowing from the discharge points of Defendant’s drain tile system into the public
ditches and culverts westerly of Defendant’s land on Arnold Bay Road between
Adams Ferry Road and Pease Road.
No timely appeal was filed. The Order became final on September 15, 2022. The Farm
filed a motion for a late appeal without requesting a stay of the injunction per V.R.A.P.
Rule 8. The motion for a late appeal was denied by the Vermont Supreme Court on April
7, 2023.
On June 5, 2023, Aerie Point filed the “Motion to Find Defendant in Contempt of
Court and to Enforce August 15, 2022 Judgment” that is now before the court.
The original trial in the case took place in January of 2022. Prior to its conclusion,
the federal Environmental Protection Agency had begun an investigation into a possible
wetlands violation on a portion of the Farm’s land. The evidence at trial did not include
information about this investigation. In May of 2022, during the period after the Decision
in this case and before the Judgment, Defendant hired Mark Bannon of Bannon
Engineering, an expert in soil and water engineering, to observe soil sampling done by
the EPA, and he became involved on behalf of the Farm in what became an EPA
investigation and enforcement action. In November of 2022, he conducted an extensive
study on behalf of the Farm in relation to the EPA investigation. He was not engaged to
do any work on behalf of the Farm to pursue compliance with the Injunction, although
the Judgment had become final.
There is no credible evidence that the Farm undertook any specific action to
pursue compliance with the Injunction from the time it was issued through the period that
the late-filed motion to appeal was pending. It had not sought to stay the injunction. Vicki
Hopper of Aerie Point spent time on the property in December of 2022 and saw no
changes to the manner in which water was discharged onto Aerie Point land. In January
of 2023, the Farm spent $700,000 to purchase 200 acres of additional farmland. There is
no evidence that the purpose of the purchase was related to any effort to reduce or stop
the damage to Aerie Point land.
At some point, Mark Bannon, who was working on the EPA enforcement action,
became aware of the Injunction, but was not engaged to do anything about it. In March of
2023, Dori Barton, an ecological consultant specializing in wetlands projects, first visited
the Farm’s land in connection with the EPA enforcement action and drafted a mitigation
proposal on behalf of the Farm. She became aware of the Injunction but was not engaged
to become involved in compliance efforts. On April 7, 2023, the Farm’s late-filed request
to appeal was denied by the Vermont Supreme Court. At that point there was nothing
pending in court that could potentially change the Farm’s obligation to comply with the
Injunction.
2
From April of 2023 continuously to the hearing in December of 2023, Vicki
Hopper resided at Aerie Point and saw no changes in the volume or velocity of water
flowing in the two streams from the Farm’s upslope land through the two culverts and
across Aerie Point land. The water coming through those culverts continued to be brown
and foamy and flow in the same velocity and volume as described in the Findings of Fact
from the trial.
In May of 2023, EPA representatives visited the Farm in pursuit of wetlands
enforcement. Hans and Gerard Vorsteveld, owners and operators of the Farm, cooperated
with the EPA and engaged Mr. Bannon and Ms. Barton to do so on their behalf. The work
did not include compliance with the Injunction.
In June of 2023, Aerie Point filed this Motion for Contempt and Enforcement.
Two months later, on August 11, 2023, the Farm filed a Motion for Relief from the
Injunction under Rule 60(b)(5) claiming that it was no longer equitable that the judgment
should have prospective application. This court denied the Motion for Relief, and an
appeal is currently pending before the Vermont Supreme Court.
In the meantime, in July of 2023, this court ruled that an evidentiary hearing
would be held on the Motion for Contempt and Enforcement. That month, Dr. Joshua
Faulkner, an agricultural hydrologist and Director of the Environmental Testing
Laboratory at the University of Vermont, was contacted by the Farm and began to work
on a modified design of a flow regulator to slow the flow of the water coming out of the
tile drain discharge points. Flow regulators are used on flat farmland in the Midwest. He
sought to adapt the design to the Farm’s sloping land. His involvement is as a researcher
without charge to the Farm. In late October he installed an experimental flow regulator at
one of the 15-16 discharge outlets from the tile drainage system. There is no data from
this experiment yet, and he estimates that it will take at least a year to obtain results. He
acknowledged that any effect could only affect a portion of the tiled farm fields because
of the grade of the sloping land. It is premature to know whether the use of this
innovative experimental device will be able to slow the volume and velocity of water
runoff from the tile drain system or to what degree. The current installation is an
experiment only and on its own is not likely to be sufficient to prevent continued erosion
and deposits of sediment and phosphorous on Aerie Point land.
At some point no sooner than late August, Mr. Bannon was apparently engaged to
begin efforts to address the requirements of the Injunction. Until then, all his billing
reflects work on only the EPA action. The bill dated November 1, 2023 indicates some
work performed related to “Hoppers” (Aerie Point) for the first time. There is no
evidence that Dori Barton was asked to address Injunction issues until shortly before the
December hearing.
Although Hans and Gerard Vorsteveld testified in general terms that other efforts
were made, the evidence was vague. It does not show when such efforts occurred or
provide specific information. Hans Vorsteveld testified that he ‘walked around and talked
with different folks’ about what to do, but gave no more information than that about when
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or with whom or about what. The Farm apparently installed one more discharge outlet to
the tile drain system, although the timing, purpose, and effect is unknown, and it planted
a buffer strip along the lower edge of a field, although there was no evidence about when
or why that occurred or that it has had any mitigating effect. There is no evidence that
either of these would be effective remedies for the harm the Injunction is designed to
prevent.
The owners and operators knew that there was a court order and what it required.
Hans Vorsteveld stated in an affidavit, “I am aware of this court’s August 2022 order that
requires Vorsteveld Farm. . .to prevent water from our tile drains from reaching the ditch
along Arnold Bay Road.” Gerald Vorsteveld testified that he understood that the
Injunction meant that the Farm ‘can’t let tile water go into ditches and culverts.’
The Farm did not undertake any serious consideration of the possibility of
capturing the water at the discharge outlets from the tile drain system and diverting it for
disposal, sale, or alternative uses. Hans Vorsteveld testified only in general terms that
trucking water away would take ‘a lot of trucks and a lot of traffic,’ Gerard Vorsteveld
testified that it would take ‘a lot of trucks’ and also that it would be expensive and noisy;
that they wouldn’t know where to dump the water, and they “assume” that the Hoppers
wouldn’t like the noise and traffic. On cross examination, he acknowledged that he did
not have actual figures for the cost of trucking. When asked what he thought trucking
would cost, he made a generalized estimate that 1 inch of rain over 250 acres would
generate 7 million gallons of water that would require 1000 truckloads. In the affidavit of
Hans Vorsteveld dated July 3, 2023 (Exhibit A), he estimated 750 truckloads, and without
actual cost figures, concluded that due to cost, trucking water away would be too
expensive. The Farm did not seriously investigate options for diverting water from the
discharge outlets in other ways or for other uses.
Shortly before the hearing started on December 11, 2023, Mr. Bannon developed
a proposal that addresses the EPA wetlands mitigation project but also includes a plan for
dispersing the water from the tile drain discharge outlets to multiple locations throughout
the Farm acreage with numerous installations designed to slow the velocity and volume
of the water and divert some of it to repair the wetlands that are the subject of the EPA
project. Additionally, some of the water would also be used to create a new wetlands area.
The plan, dated December 3, 2023 (approximately one week before the hearing), is
shown on the maps in Exhibit G. Mr. Bannon explained it in testimony.
On December 7, 2023, four days before the hearing, the Farm obtained an
estimate that it would cost $10,000 per acre to remove and dispose of the tile drains. The
total cost would be $2.5-3 million dollars.1 The hydrology experts, Mr. Bannon, Dr.
Faulkner, and Dr. Van Es, all testified that removing the tile drains altogether or plugging
them up could result in negative effects to soil and water on the lands of both parties. The
Injunction does not require removal or cessation of the use of the drain tiles. It merely
prohibits disposal of the discharges from it onto Aerie Point land.
1
The $3 million estimate based on evidence is for 300 acres. However, Hans Vorsteveld has stated that
approximately 250 acres are related to the terms of the injunction. Exhibit A and testimony related to trucking.
4
Photographs taken the first day of trial show that the concentrated flows from the
Farm’s tile drain system crossing the ditch on Arnold Bay Road and coming through the
culverts and flowing through Aerie Point land in the northern and southern streambeds
continue to be brown in color, significant in volume and velocity, and continue to cause
erosion, including at a new location in the side of the northern streambed.
Vicki Hopper heard about the Bannon plan for the first time during the hearing
and is interested in learning more about its possibilities for addressing the problems
currently causing damage to Aerie Point land.
During a break in the hearing for discussion between the parties, they agreed to
continue to communicate about the details of this new proposal and to attend mediation
within 60 days. The EPA mitigation project is moving forward toward implementation in
the spring of 2024. The parties intend to use the upcoming weeks to explore whether the
Bannon plan may provide a framework for not only successfully addressing the EPA
enforcement action but also providing a solution for preventing further injury to Aerie
Point land.2
Dori Barton, who does stream assessments and manages large wetlands projects,
testified that the tile drain outlets currently drain into the two existing streambeds, and
that it would be advisable to isolate and divert the outflow from the discharge outlets
upstream, close to the discharge outlets rather than near the ditch and culverts on Arnold
Bay Road. This is consistent with the Bannon plan. She is enthusiastic about working on
a plan that addresses both the EPA mitigation project and injunction compliance because
wetlands creation also has benefits for Lake Champlain. Although her work so far has
been focused on the EPA project, more recently it has begun to include injunction
compliance on behalf of the Farm. Her map of streambeds is dated December 8, 2023,
three days before the contempt/enforcement hearing.
Defendants claim that they are in compliance with the Injunction because they do
not discharge water from the tile drain outlets directly into the ditch alongside Arnold
Bay Road. However, the water from the tile drain outlets drains into the two streambeds,
which carry it to the ditch and through the culverts under Arnold Bay Road in such a
manner that its volume and velocity as it moves through the streambeds to Lake
Champlain on Aerie Point land cause the harm described in the Decision. It is the harmful
effect of the increased volume and velocity of the water as it rushes downslope and
through or across the ditch and into the culvert and onto Aerie Point land, causing erosion
and carrying sediment and phosphorous, that is prohibited from continuing and that has
not been addressed.
2
As written in a motion ruling issued September 21, 2023, the court understands that there may be alternative means
of achieving the objective of the Injunction, and an amendment to the Injunction may become appropriate if there
are specific facts to support the feasibility of such a plan . Order: Motion for Relief from Judgment (Motion #24),
September 21, 2023, pp 5-6.
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Before judgment, Defendant Farm quite appropriately asked the court to make the
injunction specific to enable it to have a standard by which compliance could be
measured. The terms of the Injunction use the ditch as a boundary such that the Farm is
free to manage the water discharged from the tile drain outlets as it chooses on its own
property all the way to the ditch line. It is not free to dispose of the tile discharge water
by releasing it such that it moves through the ditch and culverts and onto Aerie Point
land. It is disingenuous for the Farm to claim that it is not in violation of the Injunction
because of a technical argument that the water travels to the ditchline via streambeds
rather than directly from the discharge outlets into the ditch.
In sum, the evidence is clear and convincing that:
• the Injunction was issued on August 15, 2022
• Defendant’s owners and operators had had knowledge of its proposed
terms four months earlier than that
• it required reparative action on the part of the Farm and was specific about
what would constitute compliance
• the owners and operators of the Defendant Farm had knowledge of the
Order and what it required
• they had the ability to engage experts and pursue methods for compliance,
as shown by the manner in which they did so with respect to the EPA
enforcement action
• they took no meaningful action to pursue compliance until after Plaintiff’s
Motion for Contempt and Enforcement was filed (June 2023), determined
to be scheduled for hearing (July 2023), and scheduled for hearing
(September 2023), and even then they did not begin to develop
compliance plans until the hearing was imminent (December 2023)
• the steps taken so far toward compliance are only preliminary and would
not have occurred at all without the filing of the Motion for Contempt and
Enforcement and a court hearing on the motion.
The court also finds by a preponderance of the evidence that the Farm has now
engaged their experts Mark Bannon and Dori Barton to work on a promising plan to
comply with the purpose of the Injunction in conjunction with implementation of the EPA
wetlands mitigation project.
Conclusions of Law
Plaintiff seeks a finding of contempt, an award of attorneys’ fees, and coercive
sanctions to enforce compliance and prevent ongoing damage to Aerie Point land.
Defendant claims that it is not in violation of the Injunction, or alternatively that
compliance is impossible, or alternatively that it has taken reasonable steps toward
compliance.
Proceedings for contempt and enforcement of a court order are authorized by
statute. 12 V.S.A. § 122. Plaintiff must show by clear and convincing evidence that there
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was a court order that required specific action and that the Defendant had actual
knowledge of it and failed to comply. Vermont Women’s Health Center v. Operation
Rescue, 159 Vt. 141, 146 (1992). Once a plaintiff has made such a showing, the burden
shifts to the defendant to establish by clear and convincing evidence either that it has
complied or that it has a defense to contempt, such as inability to comply. Spabile v Hunt,
134 Vt 332, 335 (1976). For an “inability to comply” defense, “[t]he defendant has the
burden of proving impossibility of compliance with the order, as well as that it had
diligently attempted to comply with it.” Socony Mobil Oil Co. v. Northern Oil Co., 126
Vt. 160, 165 (1966).
Contempt
As set forth above in the Findings of Fact, Plaintiff has shown by clear and
convincing evidence that the Farm’s owners and operators knew of the Injunction and
knew that it required them to prevent the water from the tile drain discharge outlets from
reaching the ditch on Arnold Bay Road where it would proceed through the northerly and
southerly culverts under the road at a volume and velocity such that the water and the
sediment and phosphorous it carried damaged Aerie Point land. The Farm did not seek a
stay of the Injunction and it made no changes to the manner in which it disposed of
discharged water from the drain tile system onto Aerie Point land. Plaintiff has met its
initial burden.
Defendant Farm thus has the burden of proving by clear and convincing evidence
either that it has complied or that it has a defense. It asserts compliance, impossibility,
and effort at compliance.
It has not proved compliance by clear and convincing evidence. The water from
the tile drain system continues without change to travel to and past the ditch and through
the culverts in the northerly and southerly streambeds in amounts and with such force that
it continues to cause damage by erosion. Furthermore, the brown color and foam in the
water indicate that it continues to carry sediment and phosphorous on to Aerie Point land.
Its argument that it is in compliance because the discharged water does not go directly
into the ditch is not reasonable and does not show compliance. The ditch is a location
marker to set a standard for compliance. The Farm’s obligation is to keep the waste water
from the tile drain system discharge outlets off Aerie Point land. Gerard Vorsteveld’s
testimony of his knowledge of the Injunction shows that he understood it correctly.
The Farm alternatively claims inability to comply. This has also not been proved
by clear and convincing evidence, or even a preponderance of the evidence. Its evidence
consists largely of its owners’ opinion that removal of the tile drains or trucking the water
away would be expensive, but it has not provided sufficient evidence of its financial
condition to prove financial inability. During the period when it should have been
working on compliance it did not do so but instead spent $700,000 to buy additional
property. Even more telling is that in just a few days prior to the hearing, once it finally
engaged its experts to pursue planning for compliance, they have been able to develop a
plan in a short period of time that looks promising.
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The inability defense “is effective only where, after using due diligence, the
person is still not able to comply with the order.“ Socony Mobil Oil Co. v. Northern Oil
Co., 126 Vt. 160, 162 (1966) (citations omitted). A showing of diligent effort to comply is
a prerequisite to presenting a defense of inability to comply. “In the absence of a showing
of due diligence on the part of the defendant to comply with the order of the court, the
[court] was not called upon to make a determination whether defendant was unable to
obey the decree. . .” Id.The Farm has not proved that it exercised due diligence in seeking to comply
during the lengthy period preceding December 2023 when the hearing on this Motion
became imminent. The facts show that it did nothing at all until July of 2023, over a year
after it knew what the injunction would require. Even then, it did very little. There has
been one experimental device installed at one of 15-16 outlets and its maximum potential
impact can only be partial. Its possible contribution is yet unknown. It was not until the
fall of 2023, after the hearing on this motion was scheduled, that the Farm finally
engaged Mr. Bannon to work on an actual plan to comply with the Injunction, and the
plan was only formulated a few days before the hearing. Defendant had the ability to
pursue compliance, as shown by the steps it took with respect to the EPA enforcement
action. At the same time that it pursued compliance with that action, it did nothing to seek
to comply with the Injunction, resulting in ongoing damage to the Plaintiff’s property.
The December 11, 2023 photos indicate no improvement. In sum, the evidence does not
show due diligence in seeking to comply. On the contrary, the clear and convincing
evidence is that no steps would have been taken at all if Plaintiff had not filed the motion
and it had not been scheduled for hearing.
The court concludes that Defendant is in contempt for failure to comply with the
Injunction.
Sanctions
The purpose of sanctions for civil contempt is not to punish but to obtain compliance
with the court order when a complaining party has been deprived of a “right, benefit, or remedy
to which he is entitled under an order of the court.” Obolensky v. Trombley, 2015 VT 34, ¶ 42.
The evidence shows that dialogue in pursuit of resolution opened between the parties during the
last day of the hearing. The Farm has now introduced a plan, and the parties have agreed to go to
mediation. They have identified four months as a reasonable period of time for trying to make
cooperative progress on a plan. Therefore, the court declines to impose coercive sanctions at this
time. The Motion for Contempt and Enforcement will remain pending. A supplemental motion
to impose coercive sanctions may be filed during that period if Defendant fails to undertake due
diligence toward compliance. If no motion is filed, a status conference will be scheduled after
May 6, 2024 to determine future action on this motion.
Plaintiff’s Request for Attorneys’ Fees
Parties are normally required to pay their own attorneys’ fees under the American Rule,
absent a statutory requirement or contractual obligation. There is an exception where
“defendant's actions caused plaintiff to incur additional litigation expenses in order to protect her
interests.” Appeal of Gadhue, 149 Vt. 322, 330, 544 A.2d 1151, 1155 (1987). Attorneys’ fees
8
may be awarded “in those exceptional cases where justice demands an award of attorney's fees,
such as where a party is unjustly forced to endure a second round of litigation.” Agency of Nat.
Res. v. Lyndonville Savings Bank & Tr. Co., 174 Vt. 498, (2002) (mem.) (citations omitted);
Sutton v. Purzycki, 2022 VT 56, ¶ 63.
The court has found by clear and convincing evidence that Defendant would not have
taken any meaningful steps toward compliance if Plaintiff had not filed this Motion for Contempt
and Enforcement. Plaintiff had obtained a legal right to a specific remedy by court order. After
nearly a year of noncompliance, it was forced to pursue a second round of litigation to enforce
compliance. Thus Plaintiff is entitled to attorneys’ fees in connection with this Motion.
However, in order to achieve the purpose of the Injunction, it does not make sense for the
parties to devote time and attention to the issue of attorneys’ fees during the next four months
when their attention and resources should be devoted to resolution of the objective of the
Injunction. Therefore, Plaintiff may not file a request for attorneys’ fees prior to May 6, 2024.
A request, supported by affidavit and time and billing records, may be filed after May 6, 2024
and no later than June 3, 2024. If such a request is filed, Defendant may file a response within 14
days, and the court will determine whether a hearing is warranted. Again, this Motion remains
open pending resolution of the claim for attorneys’ fees.
Order
Based on the foregoing,
1. Defendant is found in contempt of court;
2. Plaintiff is entitled to attorneys’ fees in connection with this Motion; any request must be
filed no sooner than May 6, 2024 and no later than June 3, 2024 and must be supported as
described above;
3. This Motion for Contempt and Enforcement remains pending;
4. Plaintiff may file a supplemental motion for coercive sanctions, supported by specific
facts, during the pendency of this Motion if warranted by failure on the part of Defendant
to exercise due diligence toward compliance; and
5. A status conference will be scheduled to take place after May 6, 2024.
Electronically signed January 5, 2024 pursuant to V.R.E.F. 9 (d).
Mary Miles Teachout
Superior Judge (Ret.), Specially Assigned
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