Articles Posted in Government Law

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Applicant Ecos Energy, LLC appealed the Public Service Board's decision that its proposed solar power project did not qualify for a standard-offer power purchase contract under Vermont's Sustainably Priced Energy Enterprise Development (SPEED) program because it exceeded the statutory limit on generation capacity. In 2009, the Board issued an order in which it prescribed various procedures and requirements for the standard-offer program. The standard-offer program was administered by the SPEED facilitator, VEPP, Inc. One of the participants in the implementation process, Central Vermont Public Service, commented that separate projects would need to enter into separate interconnection agreements with the utility, enter into separate standard contracts, and obtain separate certificates of public good. Another participant, Renewable Energy Vermont, commented that the statute was clear that "separate plants that share common infrastructure and interconnection should be considered as one plant." In April 2013, VEPP issued a request for proposals (RFP) for projects. Applicant proposed three 2.0 MW solar projects (the Bennington Solar project, the Apple Hill Solar project, and the Sudbury Solar project). Applicant's three projects were the lowest-priced projects. In submitting the RFP results to the Board, VEPP noted that the Bennington project and the Apple Hill project would be located on the same parcel of property and the generation components of the project were "physically contiguous." It requested that the Board make a determination as to whether or not the two projects constituted a single plant. The Board accepted the Bennington project and disqualified the Apple Hill project, which had a higher price. The Board authorized VEPP to enter into standard-offer contracts with applicant for the Bennington and Sudbury projects. Applicant subsequently petitioned the Board to reconsider and modify its order. When it refused, applicant appealed the decision. Upon review of the matter, the Supreme Court found that the Board's conclusion that the Bennington and Apple Hill projects constituted a single plant was contrary to the plain language of the applicable statute: the Bennington and Apple Hill projects would qualify as "independent technical facilities." As such the Court reversed the Board's decision and remanded the case for further proceedings.View "In re Programmatic Changes to the Standard-Offer Program and Investigation into the Establishment of Standard-Offer Prices under the Sustainably Priced Energy Enterprise Development" on Justia Law

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Grievant John Aleong appealed a Vermont Labor Relations Board holding that his grievance of the termination of one portion of his teaching position at the University of Vermont fell outside the Board’s jurisdiction. Finding no reversible error, the Supreme Court affirmed. View "In re Aleong" on Justia Law

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Twelve individuals and the Ferrisburgh Friends of Responsible Growth, Inc. appealed the Environmental Division’s affirming the grant of a conditional use zoning permit to Champlain Oil Company. The permit allowed Champlain Oil to construct and operate a gasoline and diesel station with a retail convenience store and a drive-through food facility, including parking lot and overhead canopies for the gas and diesel pumps. Appellants argued that the proposed uses for a convenience, retail and drive-in facility are explicitly prohibited by the Ferrisburgh zoning ordinance and would not be consistent with the town plan. Finding no reversible error, the Supreme Court affirmed the Environmental Division's decision.View "In re Champlain Oil Company Conditional Use Application" on Justia Law

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Appellee taxpayer Trevor Jenkins owned and lived on property in the Town of Milton. He failed to pay property taxes for the 2007-2008 and 2008-2009 tax years. The Town mailed him three delinquent tax notices, in June 2008, June 2009, and January 2010, respectively, advising him to take additional steps to avoid a tax sale. The notices were sent to taxpayer by first-class mail. He denied receiving them, and the notices were not returned to the Town. In 2010, a notice of tax sale was sent via registered mail, return receipt requested. Nearly two weeks before the tax sale, the notice sent to taxpayer by registered mail was returned to the Town’s attorney unclaimed after two attempts at delivery. The Town proceeded with the sale and Loren and Kathryn Hogaboom purchased taxpayer’s property at auction. On the day following the tax sale, the Town’s attorney sent a letter by first-class mail informing taxpayer that his property had been sold in a tax sale, he had one year from the date of sale to redeem the property, and interest would accrue on the purchase amount. This letter was not returned to the Town’s attorney. Taxpayer did not redeem the property during the one-year period, and the Town issued a deed to the purchasers. Purchasers filed a complaint for ejectment in 2011, seeking a writ of possession for the property. Taxpayer admitted his failure to pay taxes but denied ever having received notice of the tax sale. He filed a counterclaim against purchasers and a third-party complaint against the Town, seeking a declaratory judgment setting aside the tax sale as void. Purchasers and the Town both filed motions for summary judgment, contending that notice to taxpayer satisfied the requirements of due process. The Superior Court concluded taxpayer's due process rights were violated because of the undelivered notices. Finding no reversible error, the Supreme Court affirmed. View "Hogaboom v. Jenkins v. Town of Milton" on Justia Law

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In consolidated appeals, petitioners, both recipients of home-based long-term care benefits through Vermont's Medicaid-funded Choices for Care (Choices) program, appealed decisions of the Human Services Board disallowing deductions for personal care services from their patient-share obligation under federal and state Medicaid laws. Upon review of the cases, the Supreme Court concluded that to the extent the services in question were medically necessary, expenses for those services must be deducted from petitioners’ patient-share obligation even if they are of a type generally covered by Medicaid. Furthermore, the Court rejected the State’s claim that the decision of the Department of Disabilities, Aging and Independent Living not to provide the personal care services in question under the Choices program constituted a conclusive finding that the services were not medically necessary. View "In re Brett" on Justia Law

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This case stemmed from the Superior Court, Environmental Division’s affirmance of the zoning board’s grant of a conditional use zoning permit to applicant Group Five Investments, LLC, to build and operate a Dollar General store in Ferrisburgh. Opponents claimed: (1) the trial court erroneously shifted the burden of proof by requiring opponents to show both that the proposed project would have an adverse impact on the area and that existing commercial development in the area already had an adverse impact; (2) the trial court erred in using the "Quechee" definition of undue adverse impact as guidance in interpreting the zoning ordinance; and (3) the trial court erred in failing to rule that the proposed use is prohibited under the applicable zoning ordinance, and that the trial court violated Vermont Rule of Civil Procedure 52(a) by failing to make requested findings on the proposed use of the Dollar General store. Finding no reversible error, the Supreme Court affirmed the trial court. View "In re Group Five Investments CU Permit" on Justia Law

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The father of L.M. appealed the trial court's finding L.M. to be a child in need of care or supervision (CHINS). He raised numerous arguments. The Supreme Court found that while father's unstable living situation, standing alone, might not be sufficient to support a CHINS determination, there were multiple elements of risk under the facts of this case leading to the trial court's conclusion that father and L.M. could end up in an unsafe living situation. Furthermore, father's inability to follow through on recommendations designed to promote L.M.'s safety enhanced the potential risk of harm to L.M.'s well-being. Given these factors, including mother's concession, the Supreme Court concluded that the trial court record supported the decision that there was a risk of prospective harm to the child sufficient to justify the State’s temporary intervention to ensure that L.M. was safe. View "In re L.M." on Justia Law

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The State of Vermont appealed the superior court’s reversal of the Vermont Parole Board’s decision to revoke Edwin Rodriguez’s parole. On appeal, the State argued: (1) the court erred in weighing the evidence and assessing witness credibility when reviewing the parole board’s decision, and (2) erred in concluding that the parole violation was not established by a preponderance of the evidence. After review of the Parole Board record, the Supreme Court found no reversible error and affirmed the decision. View "Rodriguez v. Vermont Parole Board" on Justia Law

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Applicant Alan Bjerke appealed the Environmental Division's affirmance of the Burlington Development Review Board's decision to deny his application for a zoning permit to alter the exterior of his house. Applicant argued that his zoning permit application was "deemed approved" because the municipal zoning administrator did not act upon it within thirty days. Furthermore, he claimed the Environmental Division erred by admitting the municipal zoning ordinance into evidence after trial and putting the burden of proof of compliance with that ordinance on applicant. Finding no reversible error, the Supreme Court affirmed the permit denial.View "In re Bjerke Zoning Permit Denial" on Justia Law

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The Town of Monkton brought a consolidated appeal from decisions of the state appraiser in three property tax cases challenging the Town's 2011 assessment. At issue was the manner in which the Town assessed land that had the potential for subdivision and further development. The state appraiser ruled that the Town had treated taxpayers inequitably by adding additional "home-site values" to undeveloped parcels that are subject to a permitted and recorded subdivision plan. The Town did not add this additional element of appraised value to other undeveloped parcels that may be eligible for subdivision without a permit due to their history or configuration. The Town argued it acted fairly in applying different valuation methods to properties with different characteristics. From the Town’s perspective, the appraised value of a parcel of land with a permit for more than one home should reflect additional development value, and land that could be subdivided but is not the subject of a permit is not similarly situated for purposes of tax appraisal. After review, the Supreme Court agreed with the Town's arguments and reversed the state appraiser. View "Lathrop v. Town of Monkton" on Justia Law