Appeal of Goldsmith ( 2001 )

STATE OF VERMONT
ENVIRONMENTAL COURT
Secretary, Vermont
Agency of Natural
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Resources, Plaintiff,
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Docket No. 279-12-02
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v. Vtec
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}
Thomas Doran,
Defendant.
Decision and Order on Petition for Contempt
The Secretary of the Agency of Natural Resources is represented by
Gary Kessler, Esq.; Defendant Thomas Doran represented himself. On
May 7, 2004, the Court held an evidentiary hearing on the Agency's
petition to hold Defendant in contempt for failure to carry out the
terms of a judgment order issued by the Court by default, after
Defendant failed to file an answer to the Secretary's complaint for
enforcement of an Administrative Order that became final. After a
hearing on the record held on May 7, 2004, the Court finds and
concludes as follows.
Procedural History
In March of 2002, the Agency issued an Administrative Order
regarding Mr. Doran's property at 1165 Creek Road in Castleton. The
Administrative Order was personally served on him on April 2, 2002.
Mr. Doran did not1 request a hearing on that administrative order, and
it became final. Because no hearing was requested and the
Administrative Order became final, in the present case this Court does
not have jurisdiction to review or to change the Administrative Order
in any way.
The Administrative Order required Mr. Doran to do three things: to pay
a penalty of $3,000; to immediately cease all unlawful burning and
disposal of solid waste; and within 60 days to " remove all illegally
disposed solid waste to a certified facility and provide receipts to the
Agency . . . that demonstrate that the materials were properly
disposed."
On December 2, 2002 the Agency served a summons and complaint
on Mr. Doran, commencing the above-captioned case. This case is an
enforcement action under 10 V.S.A. § 8014 for failing to comply with
the final Administrative Order. The relief requested in this enforcement
action was for Mr. Doran to remove all illegally disposed solid waste to
a certified facility (and to provide receipts demonstrating that the
materials were properly disposed), to pay the $3,000 penalty imposed
by the Administrative Order, and " otherwise" to comply with the
provisions of the Administrative Order and specified sections of the
Vermont Air Pollution Control Regulations and Solid Waste
Management Rules.
Mr. Doran did not file an answer, or otherwise appear in the
enforcement action. The Agency of Natural Resources moved for a
default judgment and the Court granted the Agency's motion for
default judgment on March 14, 2003. The default judgment order was
personally served on Mr. Doran in June 2003. In December of 2003,
Mr. Doran informally requested that the Court set aside the default
judgment order. The Court gave Mr. Doran time to file a memorandum
in support of his request to set aside the default judgment, to explain
why he had failed to file an answer to the complaint, and to file the
answer. He did not do so, and his request to set aside the default
judgment was therefore denied.
Therefore, the only matter now pending before the Court is the
Agency's petition for contempt of that default judgment order.
Findings and Order
Mr. Doran owns and operates a roofing business at a location other
than the property at issue in the present case. The property at issue in
this case, at 1165 Creek Road in Castleton, now contains an existing
garage and a large dumpster, into which Mr. Doran places construction
and demolition debris from his roofing jobs. The dumpster is emptied
periodically by a waste hauling company: Casella Waste Management.
Behind the garage is a steep bank leading down to a lower elevation of
land.
At the present time Mr. Doran continues to dump old slate shingles
(removed during re-roofing jobs) on the ground at the site near the
top of the bank; some of those shingles slide down the bank. Slate is
quarried in the vicinity of Castleton, and Mr. Doran considers slate
roofing shingles to be an indigenous rock material which is not illegal
to dump on the ground. It is not clear whether Mr. Doran intends
simply to dispose of these old slate shingles on the site, or to stockpile
them there for later reuse for historic preservation roofing work or for
sale of the slate pieces for other purposes.
In 1993, Mr. Doran had dumped construction and demolition debris at
the site, including brick, cinderblock, old slate shingles, and old
asphalt. He had burned construction and demolition debris on the site.
Some of the dumped material and remains of the burned material had
been dumped or had slid over the bank.
In connection with the 1993 event, Mr. Doran cooperated with the ANR
environmental enforcement officer who came to the site. Mr. Doran
agreed to remove the burn barrel and to remove the burned and
dumped material, and did so. The ANR environmental enforcement
officer at that time had estimated that a 30-cubic-yard roll-off
container would be sufficient for removal of the material. Mr. Doran
removed that quantity of material in connection with the 1993 event.
That amount of removal cleaned up the site to the satisfaction of the
ANR environmental enforcement officer at that time, although some
inert brick and block was left on the site and was not removed. In
connection with the 1993 event, the ANR environmental enforcement
officers were not concerned about the brick and block material that
remained at the site.
Mr. Doran installed the 22-cubic-yard dumpster at that location in
1994; it has been used since that time for the disposal and removal of
construction and demolition debris.
In December of 2001, an Environmental Enforcement Officer observed
brick, mortar, slate and lumber material deposited on and over the
steep bank.2
Mr. Doran may very well be eligible for Agency approval to allow the
inert slate shingles and/or other masonry waste materials to remain in
place on the site. This approval is called an > Insignificant Waste
Management Event" approval and may be obtained by application to
the ANR's Waste Management Division. Such an approval may require
an inspection and some degree of work with an appropriately-sized
backhoe to demonstrate what materials are in place on the site. If it is
obtained, Mr. Doran may be approved not only to leave the inert
materials on the property in conformance with the approval, but also
to continue in the future his practice of placing old slate shingles on
the property, either for disposal or stockpiling for reuse. However,
without such approval he may not continue this practice, and under
the default judgment order must remove the materials already placed
there. As explained above, this Court has no jurisdiction to review or
change the terms of the original administrative order that became
final.
Based on the findings, conclusions, and reasoning of this decision,
pursuant to 12 V.S.A. § § 121-123; V.R.C.P. 76; and the Court's
inherent power of contempt to enforce its orders under 10 V.S.A.
Chapter 201, it is hereby ORDERED and ADJUDGED that Respondent is
found in contempt of the default judgment order issued in the
underlying enforcement action under 10 V.S.A. § 8014 to enforce the
final administrative order, in two respects: (1) in that he has not paid
the $3,000 penalty imposed by that order and has not shown a
present inability to pay, and (2) in that he has not applied for an "
Insignificant Waste Management Event" approval to leave the
materials in place and to continue placing old slate roofing tiles in that
location nor has he removed the waste materials from that location.
The Secretary requested that this Court impose an additional penalty
of $500 to recognize the Agency's additional costs of enforcing this
order. However, because this was a civil contempt action, rather than
merely an amendment of or addition to the enforcement action, the
Court is restricted to a coercive sanction only. Accordingly, it is hereby
ORDERED and ADJUDGED that on or before August 6, 2004, Mr. Doran
shall comply with the default judgment order by either applying for an
" Insignificant Waste Management Event" approval to leave the
materials in place on the property or by removing the waste materials;
and that on or before September 7, 2004, Mr. Doran shall comply with
the default judgment order by paying the $3,000 penalty imposed by
that order. Failure to comply with the deadlines imposed by this order
will result in a coercive sanction of $25 per day for each day of
noncompliance. The parties may agree to an alternate payment
schedule, to an alternate payment amount, and to alternate deadlines,
but should submit any such agreed changes to this order as a
stipulation to amend this order, signed by both parties.
Any party wishing a separate V.R.C.P. 58 judgment order may propose
one for the Court's signature so that it is received by the Court on or
before July 14, 2004.
Done at Barre, Vermont, this 6th day of July, 2004.
____________________________
Merideth Wright
Environmental Judge
Footnotes
1.
If Mr. Doran had requested a hearing as explained in that
Administrative Order, that Administrative Order would have come
before the Court, and the Court could have taken evidence on whether
any of the material over the bank was illegally disposed or not, and on
whether $3,000 or some other lesser amount (or no penalty at all)
would have been a fair penalty amount.
2.
During the hearing, this witness, Mr. Urich, referred the Court to
his “report;” however, although some of his photographs were
admitted into evidence from that visit, no report was offered or
admitted.
STATE OF VERMONT
ENVIRONMENTAL COURT
Secretary, Vermont
Agency of Natural
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Resources, Plaintiff,
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Docket No. 279-12-02
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v. Vtec
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Thomas Doran,
Defendant
Order on Pending Motions
The Secretary of the Agency of Natural Resources is represented by
Gary Kessler, Esq.; Defendant Thomas Doran represents himself.
Scheduling Order on Motion to Set Aside the Default Judgment
Mr. Doran filed another short letter with the Court on December 1,
2003, enclosing his entry of appearance to represent himself (which
itself contains handwritten note: A Being advised by an attorney at
this time@ ); and moving to set aside the default judgment in this
matter. It again did not appear from the face of the letter filed
December 1, 2003, that Mr. Doran had sent a copy to Attorney
Kessler, and we have just found out that Attorney Kessler was not sent
a copy. This is the last time we will remind Mr. Doran that each party
is required by the rules of procedure to send a copy of anything filed
with the Court to the other parties in the case and that judges are not
allowed to consider any communication from one party unless all the
other parties have received copies of it. The Court staff faxed a copy of
the December 1, 2003 letter to Attorney Kessler on February 2, 2004
and a copy is enclosed with this order for his information (copy
enclosed).
In the future, Mr. Doran= s failure to send the required copy of
any document to Attorney Kessler may result in the denial of
any request made in the underlying document, or in other
V.R.C.P. 11 sanctions being considered.
We again repeat the procedural status of this matter to date. The
Agency issued an Administrative Order regarding Mr. Doran in March
2002, which was personally served on him on April 2, 2002. Mr. Doran
did not request a hearing on that administrative order, and it became
final. Because no hearing was requested and the Administrative Order
became final, the Court cannot consider the merits of the original
administrative order in this case. See 10 V.S.A. Chapter 201.
On December 2, 2002 the Agency served a summons and complaint
on Mr. Doran for failing to comply with the final administrative order;
that enforcement action is this present case, Docket Number 279-12-
02 Vtec. This is an enforcement action filed under 10 V.S.A. ' 8014, to
enforce the final administrative order. Mr. Doran did not file an
answer, or otherwise appear in the enforcement action, and has not
done so to date. The Agency of Natural Resources moved for a default
judgment and the Court granted the Agency= s motion for default
judgment on March 14, 2003. The default judgment order was
personally served on Mr. Doran in June 2003. The Agency then filed a
petition for contempt in the enforcement action, which was set for
hearing several times and postponed. We treated Mr. Doran= s July
2003 letter as Mr. Doran= s entry of appearance on his own behalf for
the purpose of avoiding a default of the contempt proceedings, and
received his entry of appearance as an unrepresented party enclosed
with his December 1, 2003 letter.
Until his December 1, 2003 letter, Mr. Doran had not moved to set
aside the default judgment or to reopen the enforcement action.
Default judgments are disfavored and the rules on reopening cases
should be liberally construed in favor of defendants and the desirability
of resolving litigation on the merits, see Desjarlais v. Gilman, 143 Vt.
154, 158-59 (1983); Courtyard Partners v. Tanner, 157 Vt. 638, 638-
39 (1991). However, Mr. Doran= s > motion= to set aside the default
judgment contains no answer to the complaint and no explanation of
why he did not answer the complaint when it was served on him, and
does not address the V.R.C.P. 60 (b) grounds for reopening a
judgment. (Copy enclosed).
Accordingly, so that it is postmarked on or before Friday, February 13,
2004, Mr. Doran may file a memorandum explaining the grounds for
his motion, consistent with the rules. It must be addressed to the
Environmental Court at the Barre address and a copy must be sent to
Attorney Kessler at the same time. Attorney Kessler may file a
responsive memorandum within the time provided by the rules and
then the Court will rule on whether the default judgment should be set
aside and the case reopened. If the case is reopened, we will schedule
the hearing on the merits of the case to enforce the administrative
order. If the case is not reopened we will schedule the hearing on the
contempt petition for failure to comply with the default judgment.
Request for Jury Trial on the Contempt Petition
This is a separate issue from when and whether a jury trial may be
required in a civil enforcement action, that is, if Mr. Doran had either
requested a hearing on the administrative order (so that it would not
have gone into effect as a final administrative order), or if he had
answered the complaint in this action by the agency to enforce that
final administrative order. We do not now address any issues
regarding a jury trial in relation to either of those scenarios.
Rather, all that we have before us at this time (that is, until or unless
the enforcement default judgment is reopened) is a civil contempt
proceeding to require compliance with the default judgment order.
There is no right to a jury trial in a civil contempt proceeding, as the
sanctions that can be imposed are limited to those designed to compel
compliance with an existing court order. See, International Union,
United Mine Workers of America v. Bagwell, 512 U.S. 821, 826-27
(1994). Nor is there any statutory right to a jury trial for civil
contempt. 12 V.S.A. ' ' 121-123; compare V.R.Cr.P. 42(b) for criminal
contempt. Accordingly, Defendant= s request for a jury trial on the civil
contempt petition is DENIED.
Done at Barre, Vermont, this 4th day of February, 2004.
___________________
Merideth Wright
Environmental Judge
STATE OF VERMONT
ENVIRONMENTAL COURT
In re: Appeal of James }
Goldsmith }
Docket No. 281-12-00
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Vtec
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Decision and Order on Appellant= s Motions for Summary Judgment
Appellant James Goldsmith appealed from a decision of the
Development Review Board (DRB) of the City of Burlington denying his
request for a variance to construct a driveway and a parking area in
the front yard of an existing duplex. Appellant is represented by Brian
P. Hehir, Esq.; the City is represented by Kimberlee J. Sturtevant, Esq.
Appellant posed seven questions in his Statement of Questions, of
which Question 5 has been withdrawn. He has moved for summary
judgment on Questions 1, 2 and 3 of the following: 1) whether the
proposed driveway is a ' 5.1.9 accessory use1; 2) whether the
proposed driveway falls within the exception to yard setback
requirements under ' 5.3.6(g); 3) whether the proposed driveway is
exempt from site plan review under ' 7.1.4; 4) whether the proposed
driveway and parking are consistent with the intent of ' 10.1.1; 6)
whether the proposed driveway requires a variance under ' 17.1.6; and
7) whether the proposed driveway satisfies the applicable variance
criteria.
The following facts are undisputed unless otherwise noted.
Appellant is the current owner of a rectangular parcel of property
without frontage on a public street, in the Residential Low-Density
zoning district. It has frontage on a private right-of-way located
entirely on the neighboring property to the north. Appellant= s
property contains a duplex residential building known as 408/410
Colchester Avenue.
A permit for construction of the duplex was issued in December, 1982
to a previous landowner, at which time the private right-of-way was
thought to be shared with the neighboring property. A survey in 1998
revealed that the right-of-way is located on the neighbor= s property.
The site plan approved in 1992 indicated a driveway on the northerly
side of the Appellant= s property within the apparent thirteen-foot
setback, providing access to a four-space parking area in the rear
yard. The duplex was built, however, four feet from the surveyed
location of the northerly property line, precluding access to the rear
parking area without going onto the neighbor= s property. The duplex
as built is within eight feet of the southerly property line, which also
may preclude access to the rear yard on that side of the building. A
mature screen of vegetation has grown up in front of Appellant= s
property, between the property and the sidewalk, which screens the
front yard from Colchester Avenue.
A dispute arose between Appellant and the northerly neighbor
regarding an agreement under which the Appellant and his tenants
had had access to the rear parking area using the neighbor= s
driveway. Appellant and his tenants have been parking on the street,
and will need to park remotely during the winter parking ban.
Appellant seeks to construct a gravel driveway/parking area in the
front yard. At least some of this area is proposed to extend beyond
Appellant= s property line towards Colchester Avenue and into the
City= s property, although still located behind the vegetation screen.
On October 5, 2000, Appellant submitted an application for A Variance
for creation of parking area at front of property,@ including a sketch of
the proposal. The variance was requested from two provisions of the
Zoning Ordinance: ' 5.3.5 (25 foot setback from A major street,@
Table 5-D) and ' 10.1.18 (front yard parking setback).
Questions 1, 2, 3, and 4 of the Statement of Questions are not before
the Court, as they were not before the DRB in the decision appealed
from. Neither is Question 6 before the Court, as Appellant did not
request a ruling from the Zoning Administrator as to whether a
variance is required. Rather, Appellant applied for and was denied a
variance. All that is before the Court at the present time is Question 7,
the merits of the variance. Material facts are in dispute as to some
aspects of the merits of the variance, and Appellant has not requested
summary judgment on this issue. In particular, facts have not been
presented as to when Appellant purchased the property, and whether
Appellant or his predecessor has acquired any easement by
prescription or by adverse possession over the northerly neighbor= s
driveway.
Accordingly, based on the foregoing, it is hereby ORDERED and
ADJUDGED that Appellant= s Motion for Summary Judgment on
Questions 1, 2, and 3 is DENIED, because those questions, together
with Questions 4 and 6, are not before the Court in this appeal, and
those questions are hereby DISMISSED.
Based on the parties= memoranda, it appears that an application
under some of the sections raised in the dismissed questions should be
filed and ruled on before this Court should hear the merits of the
variance. It is possible that such other application would render the
variance unnecessary or moot. It is also possible that other civil
litigation may be necessary to determine Appellant= s rights in the
formerly-used driveway. Accordingly, we will place this appeal on
inactive status and request that the parties report in writing by August
30, 2001, regarding the status of this appeal, and whether they
request a telephone conference, which can be scheduled for
September 14, 2001.
Done at Barre, Vermont, this 7th day of August, 2001.
___________________
Merideth Wright
Environmental Judge
Footnotes
1.
Though the City agrees with Appellant that the project is a §
5.1.9 accessory use and may to some extent encroach on the front
yard setback under § 5.3.6(g), the City maintains that these questions
are not properly raised in this appeal because they were not before the
DRB on the variance request.