Justia Government & Administrative Law Opinion Summaries

Articles Posted in Vermont Supreme Court
by
Applicants Marian Wright and Greg Boester and their neighbors, Day Patterson and Janet Showers, owned abutting parcels of land on the shore of Caspian Lake in Greensboro, Vermont. Neighbors appealed an Environmental Division decision granting applicants a permit to tear down and reconstruct a lakeside structure on their parcel in accordance with a revised plan they submitted just prior to trial. The Vermont Supreme Court reversed, concluding that the court erred both when it determined that the structure at issue was properly designated an “accessory structure” rather than a “boathouse” under the applicable zoning bylaws, and when it declined to remand the materially revised proposal for consideration by the municipal developmental review board in the first instance. View "In Wright & Boester Conditional Use Application (Patterson and Showers, Appellants)" on Justia Law

by
Plaintiff Zachary Rose challenged the decision of the Vermont Department of Corrections (DOC) to terminate him from treatment programming without a hearing. He argued his program termination constituted punishment under 28 V.S.A. 851, and therefore required a hearing and due process under section 852. The superior court granted summary judgment to DOC, concluding that the termination was not punishment and that plaintiff’s claim was not reviewable under Vermont Rule of Civil Procedure 75. The Vermont Supreme Court concluded that DOC’s decision was reviewable, but on this record, neither party was entitled to summary judgment. Accordingly, judgment was reversed and remanded. View "Rose v. Touchette" on Justia Law

by
Portland Street Solar LLC appealed a Public Utility Commission order denying Portland Street’s petition for a certificate of public good (CPG) to install and operate a 500-kW solar group net-metering system adjacent to a previously permitted solar array owned by Golden Solar, LLC. Interpreting the definition of “plant” set forth in 30 V.S.A. 8002(18), the Commission determined that the proposed Portland Street project would be part of a single plant along with the already-approved adjacent Golden Solar project and thus would exceed the 500-kw energy-generating-capacity limit applicable in the net-metering program. On appeal, Portland Street argued the Commission’s decision was inconsistent with the Vermont Supreme Court’s controlling precedent, as well as prior Commission decisions involving similar cases, and that the Commission exceeded its statutory authority by expansively construing the component parts of section 8002(18) that defined the characteristics of a single plant. Applying the appropriate deferential standard of review, the Supreme Court concluded the Commission’s self-described expanded and refined interpretation of what constituted a single plant under section 8002(18) was not arbitrary, unreasonable, or discriminatory and did not amount to compelling error that would require the Court to intervene in matters the Legislature has delegated to the Commission’s expertise. Accordingly, the Court affirmed the Commission’s decision denying Portland Street’s petition for a CPG to install and operate its proposed facility under the net-metering program. View "In re Petition of Portland Street Solar LLC" on Justia Law

by
Between 2010 and 2015, pursuant to a contract with the Vermont Department of Corrections (DOC), Wellpath, LLC assumed responsibility for providing medical care to every person in state custody within Vermont. Pursuant to the Vermont’s Public Records Act (PRA), plaintiff Human Rights Defense Center (HRDC) requested from Wellpath any records relating to legal actions and settlements arising from this care. Wellpath declined to furnish the requested records, arguing that, as a private contractor, it was not subject to the PRA’s disclosure requirements. HRDC brought the instant suit, and the trial court entered judgment for Wellpath. The Vermont Supreme Court found the language of the PRA was unambiguous: "where the state contracts with a private entity to discharge the entirety of a fundamental and uniquely governmental obligation owed to its citizens, that entity acts as an 'instrumentality' of the State. ... But because here, for five years, Wellpath was the sole means through which the constitutional imperative that the DOC provide healthcare to those it incarcerates was carried out, Wellpath became an 'instrumentality' of the state, and was thus subject to the disclosure obligations of the PRA." Judgment was reversed and the case remanded for further proceedings. View "Human Rights Defense Center v. Correct Care Solutions, LLC et al." on Justia Law

by
Petitioner TruConnect Communications, Inc., sought designation from the Vermont Public Utility Commission as an eligible telecommunications carrier (ETC) to provide affordable telecommunications service to qualifying Vermonters under the Federal Lifeline program. The Commission granted TruConnect’s application subject to certain conditions, including a condition that required TruConnect to provide a free cellular handset to its customers. TruConnect appealed, arguing that the condition was imposed on clearly erroneous grounds. After review, the Vermont Supreme Court agreed and reversed and remanded for the Commission to revise its order. View "In re Petition of TruConnect Communications, Inc." on Justia Law

by
Following a remand from the Vermont Supreme Court, the Public Utility Commission (PUC) denied petitioner’s request for a certificate of public good (CPG) to construct a 2.0 megawatt (MW) solar facility on Apple Hill in the Town of Bennington, Vermont. Petitioner appealed, arguing the PUC erred in: (1) denying its request to amend its petition; (2) concluding that the Bennington Town Plan and Bennington Regional Plan contained clear community standards and that the project would violate those standards; (3) applying the “modified Quechee” standard in the aesthetics analysis without having gone through rulemaking; (4) treating the provisions of the Bennington Town Plan as if they were binding zoning ordinances in violation of 24 V.S.A. 4413; (5) failing to consider the positive benefits of the project with respect to greenhouse-gas emissions in the contexts of its aesthetics analysis; and (6) applying vague and standardless tests in violation of its constitutional rights. After review, the Vermont Supreme Court rejected significant portions of the PUC’s rationale for denying petitioner a CPG, therefore reversed and remanded for additional proceedings. View "In re Petition of Apple Hill Solar LLC" on Justia Law

by
Justin and Maureen Savage (landowners) owned a 176-acre parcel of undeveloped land in a rural area near Cavendish, Vermont. Snowstone, LLC, sought to buy a portion of landowners’ property to operate a dimensional stone extraction project. After executing the contract, Snowstone requested a jurisdictional opinion from the Act 250 district coordinator to determine whether the project would need an Act 250 permit. A group of neighboring landowners (neighbors) filed comments, arguing that the project would require said permit. The district coordinator issued a jurisdictional opinion, concluding that the proposed project needed an Act 250 permit because the project constituted “development,” defined in relevant part as “[t]he construction of improvements for commercial or industrial purposes on more than one acre of land within a municipality that has not adopted permanent zoning and subdivision bylaws.” Snowstone appealed the jurisdictional opinion to the Environmental Division, presenting the court with a revised contract that reduced the purchase price, removed the right of first refusal, and excised the deed restriction. Neighbors successfully intervened, arguing that the two parcels would be controlled by the same person due to the nature of the sales transaction, that the retained parcel would be “involved land,” and that the project would require a stormwater discharge permit with stormwater treatment facilities that would increase the amount of land necessary to operate the project beyond one acre. The court scrutinized the revised sales contract and determined that, with the excision of the former objectionable provisions, the contract evinced an arms-length transaction such that Snowstone and landowners were not one person. Accordingly, the court concluded that the entire 176 acres did not require an Act 250 permit. The Neighbors appealed, but finding no reversible error, the Vermont Supreme Court affirmed the Environmental Division's judgment. View "In re Snowstone, LLC Act 250 Jurisdictional Opinion" on Justia Law

by
Allco Renewable Energy Limited & PLH LLC (collectively Allco), appealed the Vermont Public Utility Commission’s (PUC) September 2020 decision awarding two provider-block contracts to Green Mountain Power (GMP). Allco argued the PUC erred in determining the proposals submitted by GMP on behalf of an undisclosed independent developer were proper provider-block projects under 30 V.S.A. 8005a(c)(1)(B). The Vermont Supreme Court deferred to the PUC’s conclusion that the GMP proposals qualified as provider-block projects because Allco did not demonstrate the PUC’s interpretation of section 8005a(c)(1)(B) was either unreasonable or has compelling indications of error. View "In re Investigation to Review the Avoided Costs that Serve as Prices for the Standard-Offer Program in 2020 (Allco Renewable Energy Limited & PLH LLC)" on Justia Law

by
In consolidated appeals, a mother challenged decisions by the family division of the superior court denying her motions for an extension of time to file a notice of appeal and to vacate the order terminating her parental rights to K.S., and concluding that K.S. was not an Indian child for purposes of the Indian Child Welfare Act. In March 2018, a relative reported that mother had “tossed” K.S. onto a bed during a family argument and that father had used excessive physical discipline on K.S.’s older brother. K.S. was later found to have a buckle fracture on her wrist, which her parents were unable to explain. The Department for Children and Families (DCF) sought and obtained emergency custody of K.S. and her brother, and filed petitions alleging that they were children in need of care or supervision (CHINS). Mother and father later stipulated to the merits of the CHINS petitions. At the October hearing, mother testified that she understood that she was permanently giving up her parental rights, that her decision was voluntary, and that she believed the decision was in K.S.’s best interests. The court accepted the parties’ stipulations and granted the termination petitions. In December 2019, mother hired a new attorney, who filed a motion for relief from the termination order pursuant to Vermont Rule of Civil Procedure 60(b). Mother alleged that the attorney who represented her at the relinquishment hearing had rendered ineffective assistance, that the underlying facts did not support termination of mother’s parental rights, and that her relinquishment was involuntary because she did not understand the proceedings. The family division denied the motion, finding that mother’s relinquishment was knowing and voluntary and not the result of coercion by DCF or the foster parents. The court further concluded that it was not required to conduct a separate "best interests" analysis when mother voluntarily relinquished her rights, and she failed to establish that her counsel’s performance was ineffective. Mother untimely filed her notice of appeal, and while a decision on the untimely notice was pending, she filed a second motion to vacate the termination order, adding the argument that the court failed to give notice to the Cherokee tribes or to apply the substantive provisions of the Indian Child Welfare Act. The Vermont Supreme Court found no reversible error and affirmed the termination orders. View "In re K.S." on Justia Law

by
Claimant John West appealed a Vermont Department of Labor decision concluding that the 2014 amendment to 21 V.S.A. 644(a)(6) did not apply retroactively. In March 2013, West fell fifteen to twenty feet while working in the course of his employment for North Branch Fire District. He was transported to the hospital and treated for extensive injuries. In September 2014, West relocated to Florida, and at some point thereafter, began working at the Freedom Boat Club. Between 2014 and 2016, several different physicians provided conflicting opinions on the level of West’s permanent impairment. In February 2016, Dr. Joseph Kandel conducted an independent medical examination (IME) at North Branch’s request. At a deposition in September 2018, Dr. Kandel testified that it would be accurate to say that “West suffered an injury to the skull resulting in [a] severe traumatic brain injury causing permanent and severe cognitive, physical, or psychiatric disabilities.” West filed a request for a formal hearing, asserting that he was permanently and totally disabled under section 644(a)(6). Between the date of West’s injury and his request for a formal hearing, the Vermont Legislature amended section 644(a)(6). In January 2019, North Branch filed a motion for summary judgment arguing that the pre-amendment version of 644(a)(6), which defined total and permanent disability as “an injury to the skull resulting in incurable imbecility or insanity,” applied to West’s claim because that was the law on the date of his injury in March 2013. Further, North Branch argued that the 2014 amendment did not apply retroactively because despite the Legislature’s stated purpose, the amendment created a substantive change in the law. In any event, because West was employed, North Branch maintained that he was not totally and permanently disabled under either version of 644(a)(6). West argued that, contrary to the Commissioner’s conclusion, the 2014 amendment to 644(a)(6) applied retroactively because it did not create any new substantive rights. The Vermont Supreme Court concluded the 2014 amendment applied retroactively and therefore reversed and remanded. View "West v. North Branch Fire District #1" on Justia Law