Justia Real Estate & Property Law Opinion SummariesArticles Posted in Vermont Supreme Court
Swett, et al. v. Gates
Defendant Brian Gates appealed a trial court’s extension and modification of three stalking orders against him. he parties are longtime neighbors who lived on the same street in Mendon, Vermont. Defendant owned a home on the street; he also owns a vacant lot next to the home of plaintiffs Elizabeth Swett and Doug Earle. In January 2021, plaintiffs sought stalking orders against defendant, alleging defendant was engaging in aggressive and intimidating behavior, including yelling and swearing at them, firing his gun to intimidate them, and otherwise acting in ways that made them fear for their physical safety. Gates raised numerous arguments, many of which related to the requirements for the issuance of initial stalking orders rather than extensions of those orders. The Vermont Supreme Court concluded the court acted within its discretion in extending and modifying the orders and therefore affirmed. View "Swett, et al. v. Gates" on Justia Law
City of Burlington v. Sisters & Brothers Investment Group, LLP
Defendant-landowner Sisters & Brothers Investment Group, LLP (SBIG) appealed an environmental-division enforcement order: enjoining it from using real property in the City of Burlington; ordering it to address site-improvement deficiencies as required by an agreement executed by a prior owner and the City; and imposing $66,759.22 in fines. SBIG purchased the subject property in 2004, which was then in use as a gas and service station, a preexisting, nonconforming use permitted under the City’s zoning ordinance. The property had eighteen parking spaces that were required to be used in connection with the service-station business. Following an unappealed 2002 notice of violation (NOV), the prior owner and the City signed an agreement on June 16, 2004—one day before SBIG purchased the property—which set out specific requirements to cure those violations. The agreement required the prior owner to take certain steps if it wished to sell the property and provided that the agreement was “specifically enforceable and . . .binding upon the successors and assigns of” the previous owner. The City did not enforce compliance with the agreement before this action. At some point after 2004, SBIG began renting out a small number of parking spaces to private individuals. This was not a permitted use under the zoning ordinance. In July 2017, the gas and service station closed, and SBIG thereafter increased the number of parking spaces it rented out to private individuals. Following complaints about the private-parking use and graffiti, the City contacted SBIG in 2018 about bringing the property into compliance with the zoning ordinance. SBIG took no remedial action, and the City issued an NOV. In June 2019, the Development Review Board (DRB) affirmed the NOV with respect to the change-of-use violation, finding the nonconforming use as a gas and service station had been discontinued for more than one year, which constituted abandonment of that use. In March 2020, the City filed a complaint in the environmental division to enforce the decision and sought fines. The Vermont Supreme Court determined the trial court erroneously found that SBIG knew or should have known about the 2004 agreement, therefore, it reversed the judgment order, directed the trial court to strike the condition requiring SBIG to address the site-improvement deficiencies in the agreement, and remanded for the court to recalculate fines without considering whether SBIG violated the agreement’s terms. View "City of Burlington v. Sisters & Brothers Investment Group, LLP" on Justia Law
Wells et al. v. Spera
Brothers Newton and Jason Wells (plaintiffs) and their mother Beverly Wells, filed suit in September 2017 seeking to partition real property they held as tenants in common with defendant Pall Spera in Stowe, Vermont. The court granted plaintiffs’ summary-judgment motion on the question of whether they were entitled to partition as a matter of law, and issued an order of appointment of commissioners and order of reference by consent of the parties. The order appointed three commissioners and directed them to determine whether the property could be divided, assigned to one of the parties, or sold. They were ordered to determine the fair market value of the property and each person’s equitable share. Neither party reserved the right to object to the commissioners’ report. Ultimately, the commissioners concluded that physical division would cause great inconvenience to the parties. Finding division inequitable, the commissioners awarded defendant first right of assignment due to his ability to buy out plaintiffs’ interest immediately, while plaintiffs required a loan to do so, and because partition would constitute the dissolution of the partnership agreement, which defendant had wished to continue. Plaintiffs filed a motion objecting to the report, citing Vermont Rule of Civil Procedure 53(e)(2)(iii). Plaintiffs’ main argument was that the commissioners exceeded their mandate as provided by the order of reference in concluding that partition would result in zoning violations, and the commissioners erred on that question as a matter of law. In the alternative, they argued the equities favored assigning the property to them. The court denied the motion, including plaintiffs’ request for a hearing, and adopted the report without qualification. It reasoned that plaintiffs had not reserved their right to object to the report as required by the plain language of Civil Rule 53(e)(2)(iii). Finding no reversible error in this decision, the Vermont Supreme Court affirmed. View "Wells et al. v. Spera" on Justia Law
Fleurrey v. Department of Aging and Independent Living, et al.
Plaintiff Tina Fleurrey appealed the dismissal of her negligence claim against defendant landlord 3378 VT Route 12 LLC. In her complaint, she alleged that landlord was responsible for the drowning death of decedent Scott Fleurrey, a fifty-four-year-old man with developmental disabilities, on the property that landlord leased to decedent’s caretakers, Upper Valley Services (UVS) and Azwala Rodriguez. The question on appeal was whether the civil division properly dismissed plaintiff’s claim. Plaintiff argued the civil division erred by misunderstanding the controlling law because landlord owed decedent a duty to protect and because the civil division drew inferences favorable to landlord. The Vermont Supreme Court held that the civil division properly granted landlord’s dismissal motion because: (1) Vermont precedents required an invitee to seek redress for injuries sustained on negligently maintained property from the land possessor who invited the injured invitee to the defective property, rather than from the absentee landlord; (2) §§ 343 and 343A of the Restatement (Second) of Torts were inapplicable here because those Restatement sections addressed only land possessors, and plaintiff did not allege that landlord was the possessor of the subject property; and (3) no duty could arise where, as here, a plaintiff did not allege that a legal relationship existed between a decedent and a landlord. View "Fleurrey v. Department of Aging and Independent Living, et al." on Justia Law
Gladchun v. Eramo, et al.
Jeffrey and Alyssa Gladchun appealed the grant of summary judgment to their neighboring landowners, Michael and Diane Eramo, and the Eramos’ lessee, New Cingular Wireless, PCS, d/b/a AT&T (AT&T). The civil division concluded that a deed granting a right-of-way for “ingress and egress” to the Eramos was unambiguous and did not limit AT&T from installing utility lines under the right-of-way to service a planned communications tower. The Vermont Supreme Court agreed the deed was unambiguous as to the right-of-way. However, the Supreme Court disagreed that it expressed more than the plain, ordinary meaning of “ingress and egress,” which did not include installing underground utilities. Accordingly, judgment was reversed and remanded for further proceedings. View "Gladchun v. Eramo, et al." on Justia Law
Nesti v. Agency of Transportation et al.
Landowner Frances Nesti appealed two civil-division orders resolving multiple claims in favor of the Vermont Agency of Transportation (VTrans). In 2006, VTrans rebuilt Route 7 in South Burlington and Shelburne. The new system directed stormwater downhill from the road in a westerly direction toward Lake Champlain. Nesti’s property abutted the lake, west of Route 7. Stormwater flowed over the depression from time to time before 2006. Nesti engaged in a series of conversations with VTrans and Department of Environmental Quality (DEQ) personnel regarding the issue beginning in 2009 or 2010. Nesti filed suit at the end of 2018, seeking damages and injunctive relief. She initially pleaded takings, trespass, and private-nuisance claims, and later added claims of ejectment and removal of lateral support. VTrans moved to dismiss all claims on the basis that each was barred by the six-year statute of limitations for civil actions, 12 V.S.A. § 511, and the doctrine of sovereign immunity. VTrans also argued the ejectment and lateral support causes of action failed to state a claim. Nesti countered that the fifteen-year statute of limitations for actions for recovery of land, 12 V.S.A. § 501, applied to each claim rather than § 511, and the continuing-tort doctrine caused her trespass and nuisance claims to continually accrue with each new runoff event, even if the claims were subject to § 511. The civil division dismissed Nesti’s takings, trespass and nuisance claims, concluding that the applicable statute of limitations was § 511, not § 501. However, the court permitted Nesti’s trespass and nuisance claims to proceed to summary judgment on the question of whether they were continuing torts, and denied the State’s motion to dismiss them under the doctrine of sovereign immunity. VTrans moved to dismiss the remaining claims, but the civil division denied the motion, but found VTrans was not equitably estopped from raising a statute-of-limitations defense. The Vermont Supreme Court concluded Nesti's claims were time-barred under the § 511, and affirmed the civil division's judgment. View "Nesti v. Agency of Transportation et al." on Justia Law
Haupt, et al. v. Triggs, et al.
This appeal stemmed from third-party claims in a legal-malpractice action. Plaintiffs Gail Haupt and Thomas Raftery filed suit against defendant, attorney Daniel Triggs, who represented plaintiffs in a property dispute. Triggs filed a third-party complaint for contribution and indemnification against third-party defendants, Liam Murphy, Elizabeth Filosa, and MSK Attorneys, who succeeded Triggs as counsel to plaintiffs in the property matter. Plaintiffs hired Triggs to represent them in a land-ownership dispute with their neighbors. Triggs took certain actions on behalf of plaintiffs, including sending a letter in 2016 to neighbors asserting that neighbors were encroaching on plaintiffs’ land and threatening litigation against neighbors, but never filed a lawsuit on plaintiffs’ behalf. In 2018, neighbors filed a lawsuit against plaintiffs asserting ownership over the disputed land by adverse possession, and plaintiffs hired third-party defendants to represent them. The adverse-possession lawsuit eventually settled. Plaintiffs then filed this malpractice action against Triggs, alleging that he was liable for legal malpractice by allowing 12 V.S.A. § 501’s statute of limitations for recovery of lands to run without filing an ejectment suit against neighbors, thereby enabling neighbors to bring an adverse-possession claim. Third-party defendants moved to dismiss Triggs’s complaint, and the civil division granted their motion. Triggs appealed this dismissal. The Vermont Supreme Court determined Triggs did not allege that any legal relationship—contractual or otherwise— existed between him and third-party defendants, and the civil division found that no legal relationship existed between the two parties. Instead, Triggs alleged that third-party defendants’ independent actions caused plaintiffs’ injury. The Court determined this is not a basis for implied indemnity. Accordingly, the judgment was affirmed. View "Haupt, et al. v. Triggs, et al." on Justia Law
In re Benoit Conversion Application
The Benoits sought to set aside a 2008 judgment under Vermont Rule of Civil Procedure 60(b)(5). The Benoits owned real property in the City of St. Albans, Vermont, which they purchased from the Hayfords in 2003. The property had a main building with multiple rental units and a separate building in the rear of the property. In 1987, the Hayfords converted the rear building to an additional residential unit without first obtaining a zoning permit or site-plan approval, as required by the applicable zoning regulations. The City adopted new zoning regulations in 1998, which made the property more nonconforming in several respects. Both the denial of the certificate of occupancy and a subsequent denial of the Hayfords’ request for variances were not appealed and became final. In 2001, the zoning administrator issued a notice of violation (NOV), alleging that only four of the six residential units on the property had been approved. The Hayfords appealed to the Development Review Board and again applied for variances. The Board upheld the NOV and denied the variance requests based on the unappealed 1998 decision. The Hayfords then appealed to the environmental court, which in 2003 decision, the court upheld the variance denial and upheld the NOV with respect to the sixth residential unit in the rear building. The Hayfords, and later the Benoits, nonetheless “continued to rent out the sixth residence in the rear building despite the notice of violation.” In 2004, the City brought an enforcement action against the Benoits and the Hayfords. The Benoits and Hayfords argued that the actions were barred by the fifteen-year statute of limitations in 24 V.S.A. § 4454(a). The environmental court concluded that “although the Hayfords’ failure to obtain a permit and site-plan approval in 1987 occurred more than fifteen years before the instant enforcement action, a new and independent violation occurred in 1998 when the City adopted its new zoning regulations.” It ordered the Hayfords and the Benoits to stop using the rear building as a residential unit and imposed fines. Appealing the 2004 judgment, an order was issued in 2008, leading to the underlying issue on appeal here: the Benoits contended that decision was effectively overruled by a later case involving different parties. The Environmental Division denied their request and the Vermont Supreme Court affirmed its decision. View "In re Benoit Conversion Application" on Justia Law
In re Burns 12 Weston Street NOV
Neighbors appealed an Environmental Division order vacating a municipal notice of violation (NOV) alleging owners were using a two-unit building as an unpermitted duplex. The Environmental Division concluded that a 2006 amendment to the City of Burlington’s zoning ordinance did not automatically reclassify the status or use of the building from a duplex to a single-family home with an accessory dwelling. It also held that a 2014 interior reconfiguration by owners did not change the property’s use, and the zoning statute of limitations, 24 V.S.A. § 4454(a), barred the City’s enforcement action in any case. Finding no reversible error in this judgement, the Vermont Supreme Court affirmed. View "In re Burns 12 Weston Street NOV" on Justia Law
Daiello v. Town of Vernon, et al.
Defendants Brenda and Dale Merritt (neighbors) challenged a superior court’s decision granting summary judgment to plaintiff Steven Daiello (landowner) and defendant Town of Vernon in a dispute over a road in Vernon, Vermont. They argued the court erred by concluding: (1) that Stebbins Road was properly established as a public road; and (2) that landowner had a common-law right of access to his property over Stebbins Road that prevented him from proving that the Town interfered with his right to access his property. Finding no reversible error, the Vermont Supreme Court affirmed. View "Daiello v. Town of Vernon, et al." on Justia Law