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Two consolidated appeals challenged the Environmental Division’s decisions concerning applications for site-plan approval and an Act 250 permit for the proposed construction of a Hannaford’s supermarket in the Town of Hinesburg. In challenging the trial court’s site-plan approval, Neighbors argued: (1) the trial court erred in declining to enforce a setback limit reflected in the final plat plan for the subdivision as approved in 1987; (2) Hannaford’s site-plan application violated “front yard” parking restrictions set forth in the Town’s 2009 zoning regulations; (3) the east-west swale proposed in the site-plan application will not control and treat stormwater as predicted by Hannaford’s expert; and (4) Hannaford did not satisfy its burden regarding stormwater control because part of the discharge system was proposed to be located on land outside of its control. In cross-appeals, Hannaford and the Town challenged the trial court’s condition requiring Hannaford to install a traffic signal before the project may be completed, and the Town challenged the court’s elimination in its amended decision of a condition requiring Hannaford to perform a post-development traffic study. The Vermont Supreme Court concluded Hannaford’s proposed site plan violated the setback limit in the final plat plan approved in 1987; and Hannaford’s parking scheme did not violate the site-plan approval standards in the applicable zoning regulations. The Court did not reach issues raised in that appeal concerning the east-west swale and traffic control. Accordingly, the Court reversed the Environmental Division’s approval of the site plan. Regarding the Act 250 appeal, the Court concluded the project did not violate a requirement in the original approved subdivision permit that development be primarily “small scale,” and that the proposed project would not materially interfere with the public’s use and enjoyment of the canal path. The case was remanded for further development of evidence concerning the east-west swale and traffic issues. View "In re Hinesburg Hannaford Act 250 Permit / In re Hinesburg Hannaford Site Plan Approval" on Justia Law

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This case began in 2014 when the Vermont Department for Children and Families (DCF) filed a petition alleging that B.K. and L.K., then six and seven years old respectively, were children in need of care or supervision (CHINS). In September 2014, the parents stipulated to a CHINS adjudication, which was adopted by the family court. In the stipulation, the parents admitted that over the previous four years they had not engaged in recommended services for domestic violence and substance abuse, and that the children had suffered severe trauma due to witnessing violence in the home and had frequent unexcused absences and tardiness from school. ness from school during the 2013-14 school year. The court approved a case plan with concurrent goals of reunification with mother and father or adoption, with interim custody with DCF. The case plan called for father to participate in parenting classes and domestic violence treatment, and for mother to participate in substance abuse and mental health treatment. Father made significant progress toward the case plan goals. Mother, by contrast, attended visits and therapy inconsistently, and was incarcerated for a period in 2015. Since December 2015, mother has had no contact with the children. In April 2016, DCF filed petitions to terminate the parental rights of both parents. However, the court found that father played a constructive role in the children’s lives and that it would not be in their best interests to lose father as they had mother. By 2017, the trial court issued its decision terminating father's parental rights, finding permanency should have been given greater weight in its analysis, and that the best interests of the children were ultimately served by termination. On appeal, father argues that the court’s decision lacked a rational basis and that it erred by terminating his parental rights based on findings that were not supported by clear and convincing evidence. DCF argued the trial court did not base its decision on any new findings of fact, but merely reconsidered the law. The Vermont Supreme Court disagreed, finding the trial court made clear that it learned two new facts at the hearing upon which it relied in reweighing the best-interest factors. The original decision did not include these findings, which were based upon statements made by the attorneys and the foster mother at the hearing. The court based its decision to terminate father’s parental rights at least in part on these new facts. For that reason, the Court could not hold that error to be harmless. View "In re B.K. and L.K." on Justia Law

Posted in: Family Law

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A mother and father appealed a trial court's order denying their motions to reopen a termination decision. Mother alleged that she had been in a car accident the day before she relinquished, had a concussion, and was not in the “right state of mind.” Father also cited the car accident as the reason for asking to reopen the termination decision and stated that he had not been represented by his attorney correctly. At the hearing, parents appeared, but were seated without their court-assigned attorneys, who were present in the courtroom. Mother indicated that she wanted a continuance to find a new lawyer. Father explained that parents had fired their lawyers for lying to them and asked for a continuance to find new counsel. When asked by the court whether they were intending to hire private counsel, father indicated that he was hoping to have assigned counsel. Counsel indicated that given parents’ allegations they would seek to withdraw. The court granted the motions to withdraw. After fifteen days, parents did not find private counsel. They failed to appear at the next scheduled hearing, and the trial court dismissed their motion. Parents thereafter filed a pro se motion for reconsideration, which was denied. On appeal, the parents argued the trial court erred by denying them assigned counsel to represent them on their motions to reopen. The Vermont Supreme Court concluded the trial court erred in declining to appoint counsel to represent parents in connection with their Rule 60(b) motion, and that parents suffered prejudice as a result. View "In re M.T., G.T., B.T. and N.T., Juveniles" on Justia Law

Posted in: Family Law

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Acting pro se, Mother appealed a trial court’s denial of her motion to modify parental rights and responsibilities for son L.C. Through their actions, father and stepmother deprived mother of any contact with L.C. for many years and “destroyed the child’s formerly good relationship with mother.” The trial court found father and stepmother solely responsible for the trauma caused by this alienation; despite this egregious behavior, the trial court declined to modify parental rights and responsibilities for the child. The Vermont Supreme Court upheld this decision on appeal, “not because the father and stepmother are correct in their accusations, or to reward or endorse the course of conduct in which they have engaged, but because the trial court’s judgment regarding the best-interest criteria was factually based and legally correct.” The Supreme Court emphasized that mother was not without recourse should father and stepmother continue to interfere with her attempts at reunification or should they defy the trial court’s orders. In the pendency of a 2015 appeal, father and stepmother continued to wage war against mother. In October 2015, mother filed the emergency motion to modify at issue here, arguing father continued to deliberately and repeatedly undermine and defy the court’s orders. The trial court agreed. At a September 2016 hearing, the court concluded that father’s serious and blatant violations of its prior order constituted a real, substantial, and unanticipated change of circumstances. The court explained, it had expressly prohibited the parties from publishing L.C.’s medical records to any third person, yet stepmother had provided L.C.’s private medical information (a trauma therapy report) to the media, which father had at least “tacitly condoned.” Father’s attorney also submitted this same report as an exhibit to a motion to stay father’s deposition in a separate civil suit that mother had filed. The court observed that father did not repudiate his attorney’s actions or attempt to rescind this filing. Regarding mother’s emergency motion, although the trial court found that mother had shown a real, substantial, and unanticipated change in circumstances, it concluded that transferring custody to mother at this juncture was not in L.C.’s best interests. Mother argued the court’s findings did not support its conclusion, particularly given its determination that father and stepmother were not credible witnesses. The Vermont Supreme Court concluded the trial court acted within its discretion in assessing L.C.’s best interests and therefore affirmed its decision. The Court emphasized that the trial court set a clear benchmark for father and stepmother’s behavior, and any further attempts at alienation may well affect the best-interest analysis and warrant a change in custody. View "Knutsen v. Cegalis (2017 VT 62)" on Justia Law

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At issue in this appeal was whether a family court could, after concluding that a custodial parent’s relocation constitutes an unanticipated change in circumstances, maintain physical rights and responsibilities with that parent but then decline to modify parent-child contact, effectively barring the custodial parent from moving because it determined that the move was not in the child’s best interests. Custodial mother appealed the family court’s denial of her motion to modify parent-child contact to facilitate her relocation with the child. The Vermont Supreme Court concluded the family court applied the wrong framework in evaluating mother’s motion, and reversed and remanded for further proceedings. View "Quinones v. Bouffard" on Justia Law

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In May 2008, the Town of Granville established an Ancient Roads Committee and Process for identifying “ancient roads,” all roads that were at one time established as public highways and had not been officially discontinued. In August 2009, the Committee recommended that certain roads, including Sabin Homestead Road, be added to the Town Highway Map. Sabin Homestead Road crosses defendant Joseph Loprete’s land for about 100 feet. In December 2009, after notice to defendant and several public hearings, the selectboard adopted the Committee’s revised recommendation to add Sabin Homestead Road back to the Town Highway Map. The road appeared on the Vermont Agency of Transportation’s official Town Highway Map. In late 2012, defendant blocked Sabin Homestead Road by putting a large storage container in the right-of-way. He refused to move the container, even after the selectboard asked him to do so. Plaintiffs then filed a declaratory judgment action asking the court to declare Sabin Homestead Road an existing town highway and public road that was properly established in 1850 following the statutory procedures required at that time. The Town moved for summary judgment, arguing that the undisputed facts established that in 1850 the selectboard took official action to lay out the road and that they created and recorded a survey. The trial court denied summary judgment based on the Town’s failure to demonstrate that it met the third requirement: that in connection with the creation of the road, the town had filed a certificate of opening. The parties subsequently agreed that the court could decide this question based on undisputed facts and they filed cross-motions for summary judgment. The parties agreed that no certificate of opening could be found. Defendant argued that this disposed of the case. However, the court concluded that the Town’s circumstantial evidence, along with the explanations provided by the Town’s affiants for the inability to locate an actual certificate of opening in the town records, supported a finding that a certificate of opening was in fact created and recorded, but had since been lost or destroyed. It thus determined that the road had been properly created and granted summary judgment to the Town. Defendant argued on appeal to the Vermont Supreme Court that the Town was required, and failed, to produce sufficient evidence that the Town certified the road as open for public travel in 1850. After review, the Supreme Court concluded the Town met its burden of proof, and it was entitled to summary judgment in its favor. View "Town of Granville v. Loprete" on Justia Law

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Defendant Matthew Webster was convicted by jury of second-degree murder, reckless endangerment, and careless and negligent operation. Defendant challenged the denial of his motion to suppress statements he gave to the police following his arrest, an evidentiary ruling at trial permitting certain expert testimony, the trial court’s refusal to charge voluntary manslaughter, the denial of his motion for a new trial based on the prosecutor’s statements in closing argument, and the trial court’s imposition of a sentence of forty years to life on the murder conviction. Finding no reversible error, the Vermont Supreme Court affirmed. View "Vermont v. Webster" on Justia Law

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After a bench trial, the trial court concluded that defendant attorney’s failure to adequately inform plaintiff Hannah Sachs of the risks of delay in filing a parentage action “negligently fell short of the standard of reasonably competent legal representation.” Despite the court’s conclusion that defendant breached her professional duty of care, the trial court determined that plaintiff failed to demonstrate direct causation or measurable damages as a result of defendant’s negligent advice. On appeal, plaintiff challenges the court’s legal conclusions and contends that the court’s factual findings established both causation and damages. The Vermont Supreme Court agreed with plaintiff, and reversed. View "Sachs v. Downs Rachlin Martin, PLLC" on Justia Law

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At issue in this appeal was whether, under the Vermont Access to Public Records Act (PRA), a government agency had to ask state employees to determine whether they possess public records in digital form in their personal accounts when a requester specifically requested communications between specified state employees and third parties, including records that could be found only in the individual state employee’s personal account. Plaintiff Brady Toensing submitted a PRA request to then-Attorney General William Sorrell. Among other things, plaintiff requested responsive records from “January 1, 2012 to present” from eleven employees and officials in the Office of the Attorney General (AGO). In particular, he asked for: “[a]ny and all communications with or documents related to” forty-four individuals and entities and “communications received from or sent to” any email addresses with one of four domain names. Plaintiff’s request stated that “[t]hese requests include, but are not limited to, communications received or sent on a private email account . . . or private text messaging account.” Plaintiff wrote to the Chief Assistant Attorney General indicating that during the course of his numerous communications with the AGO, he had emphasized that his request encompassed communications sent to and received from the private accounts of the identified state employees, but that it did not appear that the nine AGO employees had searched for and produced responsive emails and text messages from their personal accounts. He added that, if the AGO was denying his request to the extent it included responsive records and text messages in personal accounts, the AGO should treat his letter as an administrative appeal of that denial. The Deputy Attorney General denied plaintiff’s administrative appeal, finding: (1) the PRA only addressed records generated or received by a public agency, and did not extend to private accounts or electronic devices that are not accessible to the agency; (2) there was no basis to conclude that the Legislature would have expected state agencies to conduct searches of the private accounts of state officials and employees, given the law’s attempt to balance the interest of public accountability against privacy interests; and (3) even in cases where an agency may be obligated in some cases to attempt to search a private account, plaintiff did not provide a sufficient justification for his request in this case. The Vermont Supreme Court concluded the PRA’s definition of “public record” included digital documents stored in private accounts, but the Court emphasized that it extended only to documents that otherwise meet the definition of public records. On the facts of this case, the agency was required to ask specified state employees to provide public records from their personal accounts in response to plaintiff’s public records request. Accordingly, the Court reversed and remanded. View "Toensing v. Attorney General of Vermont" on Justia Law

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Defendant Christian Allis entered a conditional plea to a first offense for driving under the influence (DUI), reserving the right to appeal the trial court’s denial of his motion to suppress evidence obtained during law enforcement entry into his home. Defendant argued on appeal that the trial court’s erred in its decision to deny his suppression motion because: (1) the police entered his home without consent; and (2) even if there was consent, the State failed to prove that the consent was voluntarily given. After review of the trial court record, the Vermont Supreme Court found the State failed to meet its burden to prove consent to enter and, accordingly, reversed. View "Vermont v. Allis" on Justia Law