                                STATE OF VERMONT

                             ENVIRONMENTAL COURT

                                                }
In re: Three Church Street                      }     Docket No. 22-2-06 Vtec
In re: Three Church Street Act 250 Permit       }     Docket No. 174-7-06 Vtec
        (Appeals of Hummel)                     }
                                                }

                        Decision and Order on Pending Motions

      In Docket No 22-2-06 Vtec, Appellants Kermit and Barbara Hummel appealed

from a January 2006 decision of the Development Review Board (DRB) of the Village of

Woodstock, approving an application by Applicant The Lauren Group, LLC relating to

an inn at Three Church Street in Woodstock. In Docket No. 174-7-06 Vtec, Appellants

appealed from a decision of the District #3 Environmental Commission granting Act 250

Land Use Permit #3W0956 to The Lauren Group, LLC relating to the same property,

and denying Appellants’ motion to alter that decision. Both matters were disposed of by

a consent order entered on July 25, 2007 (the 2007 Settlement Order).

      Appellants are represented by J. Christopher Callahan, Esq.; Appellee-Applicants

The Lauren Group, LLC and its manager Jack Maiden are represented by Thomas

Hayes, Esq.; and the Village of Woodstock is represented by Todd C. Steadman, Esq.

In the Act 250 appeal only, the Agency of Natural Resources is represented by

Catherine Gjessing, Esq.

      The Lauren Group, LLC, has moved under V.R.C.P. 60(b) for relief from one

requirement of the 2007 Settlement Order. Appellants have moved for Contempt or for

Sanctions to enforce the entirety of the same order. Neither the Village nor ANR have

submitted memoranda on the pending motions. In a third case, on inactive status

pending the resolution of the present motions, Docket No. 111-6-08 Vtec, the Village

brought an enforcement action against The Lauren Group, LLC.
                                            1
       The 2007 Settlement Order contained conditions in paragraphs numbered 2, 3,

and 4, requiring Applicant to move an existing kitchen exhaust vent to a specified

location by May 1, 2008; allowing Applicant to hold no more than four events per

calendar year in excess of 33 people, conditioned as provided in an attached schedule;

and incorporating all conditions, not inconsistent with the settlement, imposed by the

two municipal permits at issue in Docket No. 22-2-06 Vtec, and the Act 250 Land Use

Permit at issue in Docket No. 174-7-06 Vtec.

       In its present motions, Applicant has moved under V.R.C.P. 60(b) for relief from

paragraph 2 of the Order, which contains the conditions concerning the relocation of the

exhaust vent, and has also requested “relief to locate the vent either where it is now

located or at the same location, but elevated.” Appellants have moved for contempt

and sanctions based on Applicant’s failure to move the exhaust vent to the specified

location by May 1, 2008.

       A motion under Rule 60(b) is the appropriate method for a party to seek relief

from a stipulated settlement agreement that is incorporated into a final judgment.

Johnston v. Wilkins, 2003 VT 56, ¶ 8, 175 Vt. 567 (mem.). V.R.C.P. 60(b) allows a Court

to grant relief from a final judgment or order, upon motion and “upon such terms as are

just,” for reasons of:

       (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly
       discovered evidence . . . ; (3) fraud . . . , misrepresentation, or other
       misconduct of an adverse party; (4) the judgment is void; (5) the judgment
       has been satisfied, released, or discharged, . . . or it is no longer equitable
       that the judgment should have prospective application; or (6) any other
       reason justifying relief from the operation of the judgment.

       In the present motion, Applicant has moved for relief under V.R.C.P. 60(b)(6).

Rule 60(b)(6) is “intended to ‘prevent hardship or injustice and thus [is] to be liberally

construed and applied.’” Sandgate Sch. Dist. v. Cate, 2005 VT 88, ¶ 7, 178 Vt. 625

(mem.) (quoting Estate of Emilo, 146 Vt. 421, 423–24 (1985)).

                                             2
       Despite this liberal construction, there are circumstances in which the “interests

of finality limit when relief is available” under Rule 60(b)(6). Riehle v. Tudhope, 171 Vt.

626, 627 (2000) (mem.) (citing Tudhope v. Riehle, 167 Vt. 174, 178 (1997)). Rule 60(b)(6)

should not be used to relieve a party from “an ill-advised tactical decision or from some

other free, calculated, and deliberate choice of a party.”           Id. (citing Richwagen v.

Richwagen, 153 Vt. 1, 3–4 (1989)). Nor is Rule 60(b)(6) relief appropriate when the

movant is at fault or has failed to prevent the circumstances which allegedly justify the

relief sought. McCleery v. Wally’s World, Inc., 2007 VT 140, ¶ 12 (mem.) (citing 12 J.

Moore, et al., Moore’s Federal Practice § 60.48(3)(b), at 60-188).

       Unlike motions for relief under subsections (1)–(3) of V.R.C.P. 60(b), which must

be filed within one year after judgment, Rule 60(b)(6) motions have no time limit, as

long as they are filed “within a reasonable time” after judgment. See Kellner v. Kellner,

2004 VT 1, ¶ 12, 176 Vt. 571 (mem.). Rule 60(b)(6) cannot be used to avoid the time

limitation imposed on motions filed for the reasons set forth in subsections (1) through

(3) of the Rule. See Juster v. Juster, 2007 VT 111, ¶ 4, 182 Vt. 622 (mem.) (citing

Alexander v. Dupuis, 140 Vt. 122, 124 (1981)).

       Applicant’s motion was filed on July 29, 2008, one business day after the

expiration of one year from the entry of the 2007 Settlement Order. However, it does

not fall within the other listed subsections of Rule 60(b) and is therefore not barred by

the one-year limitation.

       Applicant argues that relief from judgment is justified because the action

required by paragraph 2 of the Settlement Order is “not physically possible.”1

Paragraph 2 requires the exhaust vent to be relocated “behind an existing chimney on

1
  A stipulated agreement is an “’independent contract’” over which the Court has
jurisdiction, see Lussier v. Lussier, 174 Vt. 454, 456 (2002) (mem.) (quoting Manosh v.
Manosh, 160 Vt. 634, 634 (1993) (mem.)), making a request for relief analogous to the
defense of ‘impossibility of performance’ in contract law. See generally 17A Am. Jur. 2d
Contracts §§ 655–683.
                                              3
the main roof.” However, Applicant has not, or has not yet, made a showing that

relocation of the vent is not physically possible. Rather, in discussions with the vent

contractor, Applicant became aware that the stipulated location does not conform to fire

code regulations, which require a through-roof vent (such as the exhaust vent at issue

here) to be located at least ten feet from any existing chimney. Applicant argues that

locating it at the required distance would eliminate a second-floor guest room and

“impinge on the viability of a third-floor room,” which it describes as “not an option”

due to other considerations.2 Applicant argues that its possible alternatives are to keep

the vent at its current location, to raise it higher at its current location, or to run the vent

where the chimney is now located,3 which would require design review approval.

Applicant requests to be allowed to keep the vent in its current location or to raise it

higher in its current location.

       Relief from the requirement that the vent be placed in the agreed location is

justified by the conflicting fire code requirement; however, such relief does not warrant

approval of any alternative location or approval of the original location. Rather, as this

court explained in In re Appeal of Cumberland Farms, No. 196-9-02 Vtec, slip op. at 5

(Vt. Envtl. Ct. Apr. 18, 2008) (Wright, J.):

              Relief from one aspect of a stipulation . . . without vacating the
       remainder of the stipulation . . . is particularly disfavored because “the
       granting of partial relief alters the parties’ original agreement and
       generally causes one of the parties to bear the burdens of the agreement
       while foregoing its benefits.” Hood v. Hood, 146 Vt. 195, 197 (1985).




2 The number of seats approved for the restaurant is related to the number of rooms at
the inn, under the applicable zoning regulations.
3
   Applicant does not indicate whether it is proposing as an alternative that the vent be
run inside the existing chimney, or whether it is proposing that a new brick chimney be
constructed around the vent pipe, or whether it is proposing that a metal vent pipe
replace the chimney in its location.
                                               4
       In this case, it would not be equitable to allow Appellants to leave the vent in the

location that was the primary basis for Appellants’ appeal, without allowing Appellants

to proceed with their appeal of that issue. Accordingly, Applicant’s motion seeking

relief from judgment “to locate the vent either where it is now located[,] or at the same

location[] but elevated,” is DENIED. However, any party may move under V.R.C.P.

60(b) to vacate the 2007 Settlement Order, at least as to the issues relating to the kitchen

vent location, so that those issues may be litigated and so that the various alternatives

proposed by either party may be considered by the Court.           Appellants’ Motion for

Contempt Sanctions is therefore DENIED as MOOT at this time, subject to renewal if

appropriate.

       A telephone conference has been scheduled (see enclosed notice) to discuss

whether any party anticipates filing any further motions in these cases and to set a

schedule for proceeding with Docket No. 111-6-08 Vtec.



       Done at Berlin, Vermont, this 16th day of December, 2008.




                            _________________________________________________
                                  Merideth Wright
                                  Environmental Judge




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