The Suspicious Subdivision Blues

This summary of a recent Vermont Supreme Court case will also be posted on the SCOV Law Blog in more or less the same form.

Pease v. Windsor Dev. & Rev. Bd., 2011 VT 103 (mem.)

The reason they teach so much procedure in law school is so that when you get out, you at least have a shot at understanding a case like this.  In this case, the SCOV says, more or less, “Look—you got what you asked for.  So what’s the problem?”

Plaintiff’s land abuts a proposed subdivision.  The Windsor Development Review Board (DRB) approved the developer’s subdivision application in 2009, and Plaintiff, through counsel, appealed that decision to the Environmental Division.  In connection with that appeal, Plaintiff made various written Public Records Act (PRA) pro se requests to the Town’s Zoning Administrator and the seven individual DRB members.

One of the DRB members responded with the records sought, but noted that she regularly deleted emails (which may have been pertinent to the requests).  The Zoning Administrator sent a letter to Plaintiff stating that some of the records sought were exempt under the PRA, but that the non-exempt records would be provided on a certain date.  Plaintiff did not show up at the Town Offices to retrieve the records.  The next day, the Town filed for a protective order.

The Town essentially sought to enjoin further pro se records requests.  The Environmental Division granted the protective order in part, but noted that so far as the requests were public records requests within the purview of the PRA, those requests must be addressed in Superior Court.  The Town then filed a motion to remand the DRB’s decision back to the DRB, which the Environmental Division granted.

In the meantime, Plaintiff showed up to a Town selectboard meeting.  When he articulated his position that the engineering firm tasked with evaluating the proposed subdivision had a conflict of interest, he was shushed, and told to take it up with the Town’s attorney.  The board chair also opined that such comments were inappropriate for a public meeting in light of the pending litigation.

So Plaintiff filed complaints against the Town and the DRB.  From the Town, he sought (1) the same records originally requested under the PRA; (2) to enjoin the Town from taking any action to intimidate him from exercising his right to petition the Town for a redress of grievances (arguing that the Town was retaliating against him by seeking a protective order); and (3) an injunction along the same lines as number 2

The DRB complaint sought an order to compel production, and argued that the Zoning Administrator’s participation in deliberations waived a public records exception and violated the Municipal Administrative Procedures Act’s prohibition on ex parte communication when the DRB allowed the Zoning Administrator to participate in the DRB’s deliberative sessions as its clerk.  You can’t make this stuff up.

During discovery, Plaintiff issued discovery requests to both the Town and the DRB that contained requests to admit.  Defendants didn’t respond to the requests in time, so Plaintiff filed a motion for summary judgment, arguing that defendants had admitted the facts as alleged in the requests to admit, and that he was therefore entitled to summary judgment.

“Whoa, whoa, whoa!” said the Town and the DRB, “We didn’t see those requests to admit because Plaintiff hid them in a document we didn’t read carefully.” (paraphrasing slightly).  The Town and DRB requested an extension of time to respond to the discovery requests and file their own motions for summary judgment.

At a status conference, the parties discussed the issues.  The defendants also gave Plaintiff a copy of all remaining public records and represented to the court that Plaintiff’s request had been responded to in full.  The court explained that Plaintiff was entitled to that representation in writing, and the defendants sent two letters to Plaintiff stating the same.  The court later granted the defendants’ motions to enlarge time.

Defendants subsequently responded to the discovery requests and filed cross-motions for summary judgment.  Plaintiff objected to the cross-motions, asserting that the grant of the motion to enlarge time didn’t include permission to file cross-motions.  Defendants, rather than having a good chuckle over that, responded by filing additional motions to enlarge time, specifically requesting leave to file cross-motions for summary judgment.  The trial court noted that such motions were unnecessary, but granted them regardless.

The trial court denied Plaintiff’s motion for summary judgment and granted the defendants’.  In so doing, the court concluded that defendants had complied fully with Plaintiff’s PRA requests, and that litigation immunity applied with respect to the protective order.  The court found that the board chair had violated Plaintiff’s rights to free speech at the meeting when Plaintiff was shushed, but that the violation was cured with future open meetings and the opportunity to appeal to the Environmental Division.  Plaintiff appealed.

A trial court’s grant of summary judgment is reviewed de novo, which is Latin for “in excruciating detail.”

Plaintiff first argued that the trial court erred in granting summary judgment because the DRB failed to comply with the PRA in two ways: (1) by responding to his requests through the clerk, rather than through individual members; and (2) because the Town Zoning Administrator does not qualify as the clerk.  Plaintiff had already conceded below that the DRB and Town had provided all documents he requested.

Accordingly, the SCOV classified Plaintiff’s argument as one of form over substance.  The SCOV notes that the statute refers to the “custodian” of a public record—a word the statute does not define.  The trial court used Black’s Law Dictionary to define custodian and concluded that the Zoning Administrator fit the definition.  Plaintiff took issue with this approach, arguing that the PRA must be liberally construed to afford disclosure.

“Sure,” says the SCOV, “You’re right.  But you didn’t explain how this hindered or injured you.”  Because the statute offered no guidance as to how to define “custodian,” and because the trial court’s approach was reasonable, the SCOV finds no error on this front.  So far as the argument that the individual members of the DRB were required to respond and that it was inappropriate to channel responses through the Zoning Administrator, the SCOV simply notes that the argument has no basis in law.

Plaintiff’s next argument was that the trial court improperly shifted the burden of proof to the Plaintiff when it noted that Plaintiff had failed to allege that individual DRB members were withholding documents.  The SCOV simply notes that there was no improper burden shifting—that Plaintiff’s failure to make basic averments was a foundational issue.  Plaintiff never made a claim that defendants were withholding documents, so defendants had no burden to rebut a never-made claim.

On the time-to-enlarge and summary-judgment-cross-motion issues, the SCOV engages in a quite lovely discussion of civil procedure as applied in this case.  Because the rulings below were within the court’s discretion, and because the cross-motions were (at least partly) filed within the applicable timeframe, the SCOV concludes that the trial court did not err in granting the defendants’ cross-motions.

Plaintiff also argued that the trial court erred when it dismissed his second motion to compel as moot.  Because Plaintiff had already got the records he requested, the SCOV finds no error there either.

Plaintiff contended that the Town violated his free-speech rights and his right to petition for grievances when it filed the motion for a protective order.  The trial court found that litigation immunity (which is the common law doctrine that protects parties, witnesses, lawyers, and judges as participants in the judicial process from liability for acts and conduct in a proceeding) applied, and that Plaintiff’s claim therefore had no merit.  The SCOV more or less agrees.  It notes that the protective order only restricted Plaintiff to the proper scope of discovery (just like any other litigant) and that there was no restriction on protected speech.  Accordingly, the SCOV concludes that this contention is without merit.

Moving on, Plaintiff argued that when he was shushed during an open meeting, the town manager violated his free-speech rights.  Because any violation was cured by subsequent open meetings and because Plaintiff did not seek any monetary damages, the SCOV again finds no error.

Plaintiff’s last hurrah is an argument that he did not get a fair hearing before the DRB on the subdivision application and this violated his due process rights.  The claim was based on MAPA and the Vermont Constitution, and Plaintiff’s perception that the Zoning Administrator’s participation in the deliberative process, acting in his capacity as DRB clerk, constituted a conflict of interest.  The sole remedy here was appeal to the Environmental Division.  Because this was done, and the Environmental Division remanded, any violation was cured.

If you can read through this opinion and “get it” you should have no problem making it through your first-year civ-pro class, and you’ll have a good start on admin law as well.


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