The question this case presented for the Vermont Supreme Court’s review was whether steep increases in project cost estimates for the Addison Natural Gas Project, combined with changes in energy markets, created a “substantial change” such that Vermont Gas System, Inc. (VGS) had to secure an amended certificate of public good under Public Utility Commission Rule 5.408. In ruling on Conservation Law Foundation’s (CLF) separate petition for declaratory relief, distinct from post-judgment review of the Commission’s certificate of public good, the Commission held that increased cost estimates for VGS’s natural gas pipeline project, coupled with changes in the energy markets, were not a “substantial change” under Rule 5.408. The Supreme Court deferred to the Commission’s reasonable interpretation of Rule 5.408 and accordingly affirm. View "In re Petition of Conservation Law Foundation" on Justia Law

The District 5 Commission denied Korrow Real Estate LLC’s as-built application for an Act 250 permit to construct a barn on property alongside the Dog and Stony Brook Rivers, finding the project failed to comply with Act 250 Criteria 1(D) and 1(F). In doing so, the Commission construed key terms as defined by the Agency of Natural Resources (ANR). On appeal, the Environmental Division reversed the decision and remanded the matter to the Commission with instructions to grant an as-built permit for the project. The Vermont Natural Resources Board appealed the decision, arguing the court failed to accord proper deference to the ANR’s statutory authority and expertise, and that the project failed to comply with the necessary Act 250 permitting criteria. The Vermont Supreme Court affirmed in part, reversed in part and remanded. The Supreme Court found the ANR determined the Korrow project was within the Act 250 “floodway” based on the project’s location relative to the FEH area surrounding the Dog and Stony Brook Rivers. The Environmental Division erred when it determined that the methodology applied by Korrow’s expert, or the methodology of the court, was superior to that employed by the ANR. In applying the ANR definition, the Supreme Court found Korrow’s project was within the “floodway” under 10 V.S.A. 6001(6), triggering analysis of project compliance with Act 250 Criterion 1(D). Even though the court erroneously found that the project was located outside the “floodway,” there was sufficient evidence to support the trial court’s conclusion that the project complied with Criterion 1(D). With respect to Criterior 1(F), the Supreme Court found two flaws in the lower court’s findings: (1) interpreting the scope of land “adjacent” to the rivers was essential to determining whether a project was on a “shoreline,” no definition of “adjacent” was provided; and (2) even applying the court’s contextual, rather than distance-based, analysis of the project’s location in relation to the Dog and Stony Brook Rivers, the court’s conclusion that the project was not on the “shoreline” was based on insufficient evidence. The Supreme Court could not determine, based on the trial court record, whether the project at issue here was constructed on a “shoreline” and, if so, whether the project complied with the subcriteria required by statute. As such, the Environmental Division’s conclusion that the project complied with Criterion 1(F) was reversed and this issue remanded to the court for further findings. Because the question of what was meant by “adjacent” was critical to the shoreline determination and had not been briefed or argued, the parties were directed upon remand to brief this issue for the court. The Supreme Court reversed the Environmental Division’s ruling defining the term “floodway,” but affirmed its conclusion that the project complied with Criterion 1(D). The Court reversed and remanded to the Environmental Division for further proceedings to determine whether this project involved a “shoreline” and, if so, the project’s compliance with Criterion 1(F). View "In re Korrow Real Estate, LLC Act 250 Permit Amendment Application" on Justia Law

The conviction in this case stemmed from an incident that occurred in the summer of 2010. Defendant, who was attending the University of Vermont (UVM) at that time, met with complainant, another UVM student, to go to a Burlington beach. Complainant later reported that defendant had compelled her to engage in nonconsensual oral sex. In 2012, defendant was convicted of felony sexual assault and sentenced to eight years to life in prison. Defendant appealed, arguing his sentence violated the constitutional prohibition against cruel and unusual punishment because his immigration status interacted with the to-serve sentence to make him unable to get sex-offender treatment, which meant that he would not be eligible for release under the Department of Corrections’ internal procedures. Without reaching the constitutional question, the Vermont Supreme Court reversed and remanded for resentencing, directing the trial court to consider the consequences that defendant’s immigration status had on his sentence. At the sentencing hearing, the court approved nine of the special conditions suggested in the PSI, but amended the proposed language of several. There was not, however, a disclosure of any other conditions that might be imposed on defendant. The probation order, which issued after the hearing, included not only the special conditions discussed on the record and imposed at the sentencing hearing, but also nineteen additional “standard” conditions. Defendant challenged the probation conditions before the Supreme Court, arguing many of the conditions were not orally pronounced during the sentencing hearing and were not sufficiently connected to his crime or rehabilitation. He also argued the sex-offender condition prohibiting defendant from purchasing, possessing, or using pornography or erotica and from going to “adult bookstores, sex shops, topless bars, etc.” was unrelated to his offense and unconstitutionally vague. The Vermont Supreme Court concluded defendant failed to properly preserve his objections to the standard conditions and reviewed them for plain error. Based on the particular provisions and the State’s concessions, the Court struck some conditions, remanded some conditions, and affirmed the remaining. The Supreme Court struck the challenged special condition as unsupported by the record. View "Vermont v. Lumumba" on Justia Law

The conviction in this case stemmed from an incident that occurred in the summer of 2010. Defendant, who was attending the University of Vermont (UVM) at that time, met with complainant, another UVM student, to go to a Burlington beach. Complainant later reported that defendant had compelled her to engage in nonconsensual oral sex. In 2012, defendant was convicted of felony sexual assault and sentenced to eight years to life in prison. Defendant appealed, arguing his sentence violated the constitutional prohibition against cruel and unusual punishment because his immigration status interacted with the to-serve sentence to make him unable to get sex-offender treatment, which meant that he would not be eligible for release under the Department of Corrections’ internal procedures. Without reaching the constitutional question, the Vermont Supreme Court reversed and remanded for resentencing, directing the trial court to consider the consequences that defendant’s immigration status had on his sentence. At the sentencing hearing, the court approved nine of the special conditions suggested in the PSI, but amended the proposed language of several. There was not, however, a disclosure of any other conditions that might be imposed on defendant. The probation order, which issued after the hearing, included not only the special conditions discussed on the record and imposed at the sentencing hearing, but also nineteen additional “standard” conditions. Defendant challenged the probation conditions before the Supreme Court, arguing many of the conditions were not orally pronounced during the sentencing hearing and were not sufficiently connected to his crime or rehabilitation. He also argued the sex-offender condition prohibiting defendant from purchasing, possessing, or using pornography or erotica and from going to “adult bookstores, sex shops, topless bars, etc.” was unrelated to his offense and unconstitutionally vague. The Vermont Supreme Court concluded defendant failed to properly preserve his objections to the standard conditions and reviewed them for plain error. Based on the particular provisions and the State’s concessions, the Court struck some conditions, remanded some conditions, and affirmed the remaining. The Supreme Court struck the challenged special condition as unsupported by the record. View "Vermont v. Lumumba" on Justia Law

In consolidated appeals, mother, the noncustodial parent, challenged three successive orders of the family division that restricted and then temporarily suspended her contact with the parties’ sixteen-year-old son. After review of the specific facts of this case, the Vermont Supreme Court affirmed the court’s restrictions on mother’s contact with the child, but reversed its limitations on her access to the child’s records and communications with school and medical personnel. The Court remanded that issue for further findings and direct the family court to review its order suspending contact within sixty days. View "Weaver v. Weaver" on Justia Law

The Village of Waterbury terminated Adam Hubacz as one of its police officers. The Village appealed when the trial court granted Hubacz's Rule of Civil Procedure 75 petition overturning its employment action. On interlocutory appeal, the superior court certified a question of law to the Supreme Court: whether a State’s Attorney’s unilateral decision to refuse to prosecute any cases investigated by a particular municipal police officer, alone, a sufficient basis for termination of the officer pursuant to 24 V.S.A. 1931? The Supreme Court answered this question generally in the affirmative, but with the limitations. "[C]onsideration requires a finding that the officer in question cannot fulfill the duties associated with his employment and cannot be reassigned in such a way as to accommodate the nonprosecution decision." View "Hubacz v. Village of Waterbury" on Justia Law

Defendant John Stern, Jr. appealed the trial court’s determination that he violated the terms of his probation by possessing a firearm. Defendant pled guilty to domestic assault in November 2015. The trial court deferred his sentence for one year and placed him on probation. Defendant’s deferred sentence and probation order stated, “You must not engage in criminal behavior[.]” After defendant’s release on probation, he asked his probation officer whether he could possess a firearm. The probation officer informed him that he was not an attorney, but he thought defendant could. During the fall of 2016, defendant encountered police officers three times. Each time, he voluntarily informed the officers that he possessed a gun. In November 2016, the State filed an affidavit alleging defendant had violated his probation by possessing a firearm on three occasions. After a hearing in December 2016, the trial court determined that Condition 31 of the probation certificate, which prohibited “engag[ing] in criminal behavior,” provided “fair notice” that firearm possession would violate 13 V.S.A. 4017, a strict liability offense; that defendant was in possession of a firearm on three occasions; and that defendant, accordingly, violated the terms of his probation. The court further held that the burden generally falls on defense counsel, not the probation officer, to inform defendant of potential “collateral consequences of a [criminal] conviction.” Defendant argued on appeal that the probation officer “eviscerate[d] the clarity” of the probation condition such that he cannot be held to have violated the terms of his probation. Furthermore, defendant argued that even if he did violate his probation, he did not do so willfully. The Vermont Supreme Court affirmed the trial court: under these circumstances, it could not say the probation officer’s equivocal statement of his opinion was sufficient to “eviscerate” the fair notice provided by the express terms of the probation certificate. And while he may not have intended to violate his probation, defendant intentionally possessed a firearm. "We cannot find that the trial court committed error in finding defendant’s conduct willful, and we will not disturb its finding." View "Vermont v. Stern" on Justia Law

Defendant John Stern, Jr. appealed the trial court’s determination that he violated the terms of his probation by possessing a firearm. Defendant pled guilty to domestic assault in November 2015. The trial court deferred his sentence for one year and placed him on probation. Defendant’s deferred sentence and probation order stated, “You must not engage in criminal behavior[.]” After defendant’s release on probation, he asked his probation officer whether he could possess a firearm. The probation officer informed him that he was not an attorney, but he thought defendant could. During the fall of 2016, defendant encountered police officers three times. Each time, he voluntarily informed the officers that he possessed a gun. In November 2016, the State filed an affidavit alleging defendant had violated his probation by possessing a firearm on three occasions. After a hearing in December 2016, the trial court determined that Condition 31 of the probation certificate, which prohibited “engag[ing] in criminal behavior,” provided “fair notice” that firearm possession would violate 13 V.S.A. 4017, a strict liability offense; that defendant was in possession of a firearm on three occasions; and that defendant, accordingly, violated the terms of his probation. The court further held that the burden generally falls on defense counsel, not the probation officer, to inform defendant of potential “collateral consequences of a [criminal] conviction.” Defendant argued on appeal that the probation officer “eviscerate[d] the clarity” of the probation condition such that he cannot be held to have violated the terms of his probation. Furthermore, defendant argued that even if he did violate his probation, he did not do so willfully. The Vermont Supreme Court affirmed the trial court: under these circumstances, it could not say the probation officer’s equivocal statement of his opinion was sufficient to “eviscerate” the fair notice provided by the express terms of the probation certificate. And while he may not have intended to violate his probation, defendant intentionally possessed a firearm. "We cannot find that the trial court committed error in finding defendant’s conduct willful, and we will not disturb its finding." View "Vermont v. Stern" on Justia Law

Defendant Jeffrey Davis appealed after a jury convicted him for financial exploitation of a vulnerable adult. In 1995, defendant’s mother and father had an attorney draft a conditional power of attorney document. The terms of the power of attorney were general, granting the attorney-in- fact “full power to act for [defendant’s mother and in defendant’s mother’s] name in all matters and to do all things which [defendant’s mother] could do if personally present.” The power of attorney named defendant’s father as primary attorney-in-fact and listed conditions that had to be met before defendant’s father could assume this role. The power of attorney named defendant as secondary attorney-in-fact, and, again, the document required that conditions be met before defendant could assume his role as his mother’s attorney-in-fact. Specifically, defendant was required to attach one of three documents to the power of attorney: a statement signed by defendant’s father to the effect that he was unable or unwilling to serve as defendant’s mother’s attorney-in-fact, a statement signed by a medical doctor stating that defendant’s father was unable or unwilling to serve as attorney-in-fact, or a copy of defendant’s father’s death certificate. There was no evidence presented showing that any of these conditions precedent were ever met. Defendant’s father died in 2006. Upon his death, defendant’s mother moved into an assisted living facility. In early 2014, defendant’s mother suffered a fall. An employee of the elder living facility testified that, at this point, defendant became more involved in his mother’s care. Employees of the elder living facility and defendant’s mother’s doctor testified that around this time defendant began to represent himself as his mother’s attorney-in-fact. It is undisputed that at this time defendant began controlling his mother’s finances, including taking her checkbook and credit card and redirecting her mail for delivery at his address. Rent checks to the assisted living facility began bouncing; facility later initiated eviction proceedings and, in December 2014, made a report to Adult Protective Services. Adult Protective Services eventually referred the matter to local police, ultimately leading to charges filed and later this conviction. Defendant raised four arguments on appeal. His first two arguments arose from the trial court’s denial of his motion for a judgment of acquittal and the sufficiency of the State’s evidence. He also argued the court’s instructions to the jury were erroneous, and that the court erroneously permitted the victim’s guardian, rather than the victim, to testify during sentencing. Finding no reversible error, the Vermont Supreme Court affirmed. View "Vermont v. Davis" on Justia Law

Appellant Sulaiman Jadallah sought reversal of a decision that: (1) denied his request to vacate a settlement agreement between himself, appellee Gabriel Handy, and appellee Sidon Pantry, LLC under Vermont Rule of Civil Procedure 60(b); and (2) granted summary judgment in favor of appellee Town of Fairfax and appellee Stacy Wells. In 1994, appellant began operating a restaurant situated on a parcel of real property that he owned. Nine years later in 2003, Handy loaned appellant money. To secure the loan, appellant executed a quitclaim deed for the real property to Handy, which the parties agreed Handy could record should appellant fail to repay Handy. Appellant repaid the loan and thus, Handy did not record the Deed. In 2007, appellant again borrowed money from Handy. Handy agreed to loan appellant money pursuant to terms laid out in a promissory note, which appellant signed. The loan was secured by a second quitclaim deed for the real property to Handy (2007 Deed). The promissory note and the 2007 Deed were signed by appellant and Handy and notarized by Wells. The Deed and note provided that, if appellant failed to make timely repayment of the loan, Handy would again record the 2007 Deed, which would transfer title of the property to Sidon Pantry, Handy’s company. Appellant was incarcerated for an unrelated legal matter and failed to make payments to Handy. He also failed to pay the State of Vermont for rooms and meals taxes. As a result, Handy recorded the 2007 Deed and Wells signed the attestation stamp. Handy filed the Vermont Property Transfer Tax Return (VPTTR) and paid the relevant transfer taxes and back room and meals taxes thereafter. When appellant was released from prison in mid-April 2008, Handy told appellant that he had recorded the quitclaim deed. In April 2008, a mortgagee of the property sent appellant a letter informing him that an unauthorized transfer of the property had occurred in violation with the mortgage’s provisions. In 2010, Handy cleared title to the property by paying off the two mortgages encumbering the property. In 2014, appellant purported to grant an easement in the property to his son. The easement deed referenced the 2007 Deed as a “fraudulent deed” that did not actually convey the property to Handy and his company. Appellant thereafter sued, naming Handy, his business, and the Town and Wells as parties. The trial court dismissed the settled claims; but the case against the Town and Wells continued. Appellant moved for relief from judgment, arguing Handy and his attorney allegedly engaged in fraud when drafting and obtaining appellant’s signature on the settlement documents. The trial court denied appellant’s motion for relief. Finding no reversible error in the denial of relief, the Vermont Supreme Court affirmed the trial court's judgment. View "Jadallah v. Town of Fairfax" on Justia Law