The Superior Court did remand the matter to the Selectboard to go back and review safety issues which the residents argued could be implicated if the road was to become private instead of public.  The Selectboard did as ordered and found that there was no evidence to suggest that turning-over maintenance of the road to the homeowners would create any safety hazards to the traveling public greater than when the road was a public road.  The Selectboard thus reaffirmed its decision to discontinue the road.  The homeowners appealed again, and the Superior Court ruled that the Selectboard’s decision was properly supported by the evidence it had reviewed.  The Court also rejected the homeowners’ charges of improper conduct and procedures on the part of the Selectboard.

In addition to challenging the discontinuance decision, the homeowners also sued the Town for monetary damages, claiming that the Selectboard’s action making the road private denied the homeowners reasonable access to their properties such that the action amounted to a “taking” without compensation.  The Court agreed with the Town’s analysis that cessation of maintenance of a road at public expense is not a taking of any property right of abutting property owners.  The homeowners also claimed that the town highway discontinuance statute, 19 V.S.A. § 710, is unconstitutional, but the Court agreed with the Town’s defense of the statute and rejected that claim as well.

The Town was represented by the Burlington law firm SP&F, which represents municipal clients statewide.  The property owners were represented by the law firm Monaghan, Safar & Dwight.  Copies of the Superior Court’s key rulings are available by contacting John Klesch.

In late April 2011, the property was inundated by floodwaters due to a combination of rapid snowmelt and a substantial rainstorm. Believing that the proposed commercial development would exacerbate future flooding and potentially lead to floodwaters reaching the Village core, the Village began negotiating with the property owner in the fall of 2011 to purchase the property. The Village’s purchase this past September was the result of a three-year long planning, fundraising and negotiation process, and may ultimately lead to the protection of more than five acres of floodplain in the Village from development.

For more information about this project or for assistance with your municipality’s real property transactions, please contact Robert Fletcher or David Rugh.

As discussed by the Court, Mr. Brouha’s complaint describes the noise from the project’s turbines as “excessively loud” and continuing “unabated for long periods of time during both day and night, including for periods of multiple days at a time.” He alleges that he “experiences extreme and frequent stress and irritability, and the inability to enjoy” activities including working outside, gardening, eating outside, walking, and hiking. Mr. Brouha identifies his property as about one mile from the project, and his property line as about 1,100 feet from the project.

In denying the motion to dismiss filed by the project’s owners, Judge Geoffrey W. Crawford concludes that that PSB did not consider whether the project created excessive noise impacting Mr. Brouha’s use and enjoyment of his property, the claim raised by Mr. Brouha’s complaint. Instead, the Court explains, the PSB’s review of the aesthetic impact of the project examined impact on the community and used a “communal cost-benefit standard” that incorporated the “overall societal benefits” of the project. Because the PSB’s review did not include and rule on Mr. Brouha’s claim, as the Court concludes, his claim can proceed.

A copy of Judge Crawford’s complete decision can be found here: http://law.justia.com/cases/federal/district-courts/vermont/vtdce/5:2014cv00063/24467/18/ For additional information about this case or PSB matters in general please contact Diane Sherman at SP&F.

In response, in December 2007 the Mahoneys filed a quiet title action claiming that they adversely possessed the beach for the statutory fifteen-year prescriptive period. The Mahoneys alleged that they satisfied the prescriptive period for adverse possession by tacking the two periods of time when the beach was not dedicated to use as a charitable summer camp from 1949 until July 1959 (ten years) and then again from August 2003 through at least when the Mahoneys filed their quiet title action in December 2007 (over four years). The Mahoneys also claimed that their adverse possession period continued to accrue after they filed the quiet title action.

On appeal from a trial court decision against the Mahoneys, the Vermont Supreme Court held that the fifteen-year statute of limitations in 12 V.S.A. § 501 is inapplicable to an action filed by the putative adverse possessor. The Court said that once “open and hostile” occupancy consistent with adverse possession begins, it is the title owner’s burden to assert its right to the disputed property prior to the conclusion of the fifteen-year prescriptive period; otherwise, the adverse possessor acquires title as good as if it was acquired by grant.

On the other hand, the Court confirmed that once the title owner asserts a claim of ownership in response to an alleged adverse possessor’s quiet title action, the statute of limitations is tolled as of the date of the responsive pleading, ending the prescriptive period. In Mahoney, Tara asserted its ownership of the beach in a January 2008 Motion to Dismiss, and thus, the Mahoneys’ adverse possession claim failed because they could only claim adverse possession for at most fourteen years.

One other ruling of interest in Mahoney concerns the period of charitable use of land. Such periods are statutorily excluded from the calculation of the prescriptive period for adverse possession claims. 12 V.S.A. § 462. The Supreme Court dismissed the Mahoneys’ argument that the charitable use period should only include those periods of time when VCC actually operated its summer camp on the beach and held that the charitable use period is based on the entire period of VCC’s ownership , even including the relatively short periods of time when the beach was not actually put to use for the summer camp.

For additional information about this case, matters of adverse possession or real property issues in general, please contact SP&F, attorneys Robert E. Fletcher, Esq. or David W. Rugh, Esq.

In February, 2012, BTV applied to the City of South Burlington Zoning Administrative Officer for issuance of zoning permits to allow demolition and removal of fifty-four existing homes located on the lots purchased by BTV. The permits were issued and Mr. Maille appealed to the South Burlington Development Review Board (DRB), arguing that site plan review was required. The DRB held that the applications did not propose converting the formerly occupied single family structures, and removing the structures did not constitute a change in the use of the lots, such that site plan review was not required for the resulting vacant lots.

The Vermont Superior Court’s Environmental Division affirmed the DRB’s decision, and recently so too did the Vermont Supreme Court. The Supreme Court’s decision was a narrow 3-2 majority ruling issued on July 25, 2014, In re Burlington Airport Permit, 2014 VT 72 (click on case name to view decision). The Supreme Court also held that, even if removal of the residential structures could be deemed a change of use and thus “land development,” an exemption in the South Burlington Land Development Regulations required the same outcome. Section 14.03(B) provides: “[s]pecifically excluded from the provisions of this article are: (1) [o]ne-family dwelling on a single lot . . . [and] (2) [t]wo-family dwelling on a single lot.” The Supreme Court approved the rationale that BTV’s purchase of the fifty-four properties did not automatically change their use, even if BTV bought the properties intending to later put them to a new use. Because the use continued to be one- and two-family residential use, despite the demolition of the structures, the exemption from site plan review applied.

Amanda Lafferty of SP&F represented the City of South Burlington in the case. For information on this case or assistance with a land use matter, please email Amanda or call 802.660.2555.