Chandler v. Newfane, No. 270-6-13 Wmcv (Teachout, J., October 3, 2014)

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                                                      STATE OF VERMONT

SUPERIOR COURT                                                                                               CIVIL DIVISION
Washington Unit                                                                                        Docket No. 270-6-13 Wmcv

Charles Chandler
      Plaintiff

           v.

Town of Newfane et al.
      Defendants


                                               DECISIONS on Pending Motions

                  Defendants’ Motion to Extend Summary Judgment Motions Deadline, #3
                               Plaintiff’s Motion to Quash Deposition, #5
                                   Plaintiff’s Motion for Sanctions, #6
                              Plaintiff’s Motion for Summary Judgment, #7
                            Defendants’ Cross Motion for Summary Judgment

        Plaintiff Charles Chandler’s claims in this case arise mostly out of the land use permitting
history of his Newfane property and how the Town has assessed his property for tax purposes.
He seeks money damages based on his claim that the Town has engaged in unlawful acts and
omissions, causing him damages. He seeks compensation for the loss of the use of and physical
injury to his real and personal property, loss of income, and the effects of the allegedly incorrect
assessment. The parties have filed cross-motions for summary judgment.1

       Oral argument was heard at a motions hearing on October 3, 2014. Plaintiff represented
himself. The Town was represented by Attorney James F. Carroll.

       For the reasons stated on the record, the Court ruled that both the Town’s Motion to
Extend Summary Judgment Motions Deadline and the Plaintiff’s Motion to Quash were denied
as moot.

           Mr. Chandler’s Motion for Sanctions

       Mr. Chandler seeks sanctions based on the circumstance that he appeared on February 18,
2014 for a deposition scheduled by Attorney Carroll, but Mr. Carroll was not present at the time
and place scheduled (Windham County Courthouse in Newfane). Mr. Chandler says that he
drove 255 miles in order to be there, and seeks monetary compensation and preclusion of further

1
 Along with the Town, Mr. Chandler has named Doris Knechtel as a defendant in her personal and official
capacities. Ms. Knechtel is a lister for the Town. There are no apparent claims against her in her personal capacity.
The claims are against the Town (which includes Ms. Knechtel in her official capacity). In this decision, the court
will refer to both the Town and Ms. Knechtel collectively as the Town.
discovery as sanctions for Mr. Carroll’s failure to be present. Mr. Carroll says that he cancelled
the deposition based on Mr. Chandler’s statement in a February 14th telephone call to Mr.
Carroll’s office manager that he (Mr. Chandler) was out of state and it was not going to be
possible for him to get back and he would not be coming. (Although he had mail notice of the
scheduled deposition, relayed to him by telephone through his son, he had not been served with a
subpoena.) Mr. Chandler agrees that the call took place, but disputes that he said he would not
be coming. He claims that he said that he would be coming.

        Sanctions can be appropriate when a party knowingly fails to comply with a discovery
obligation. In this case, there is a disagreement about what was said in a telephone conversation,
and it directly affects whether the deposition would be held or cancelled. A misunderstanding
resulting from a disputed but undocumented communication is not a sufficient basis for the Court
to conclude that there was a knowing failure to comply with a discovery obligation. Therefore,
the motion for sanctions is denied.


       Mr. Chandler’s Motion for Summary Judgment

        Mr. Chandler’s summary judgment motion does not comply with Rule 56. The rule
requires the motion to be supported by a statement of undisputed facts “with specific citations to
particular parts of the materials in the record, including depositions, documents, electronically
stored information, affidavits, stipulations (including those made for purposes of the motion
only), admissions, interrogatory answers, or other materials.” V.R.C.P. 56(c) (1)(A). All of the
factual allegations in Mr. Chandler’s statement of undisputed facts begin with “[t]he defendants
admit . . . .” There is no evidence (or citations to such evidence) of any such admissions in the
record, however. This lack of compliance makes it impossible for the court to determine which
facts are material and which are or are not in dispute.

        Mr. Chandler also supported his motion with his own affidavit. The affidavit, however,
largely consists of conclusory facts and conclusions of law. For example, Mr. Chandler alleges:
“Every time I applied for a building permit it was either unlawfully denied out of hand or granted
and then later unlawfully revoked.” Affidavit of Charles Chandler ¶ 5. He does not specify. “It
is well-established that ‘ultimate or conclusory facts and conclusions of law . . . cannot be
utilized on a summary-judgment motion.’” In re Shenandoah LLC, 2011 VT 68, ¶ 17, 190 Vt.
149.

      Mr. Chandler’s motion for summary judgment is not supported in the manner
contemplated by Rule 56. Therefore it does not provide support for a ruling as a matter of law.


       The Town’s Motion for Summary Judgment

        Mr. Chandler, in the complaint and elsewhere, has not articulated his legal claims with
clarity. At oral argument, he clarified that he is seeking compensation from the Town on the
basis of a legal claim for “unlawful acts and omissions.” The general thrust of the allegations is
that the Town manipulated the zoning permit process specifically to harm him, wrongfully

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obtained a “cease-and-desist” order from the Environmental Division of the Superior Court that
caused physical damage to his real and personal property, incorrectly characterized his property
as industrial for assessment purposes, and refused to allow him to record the deed in the Town’s
land records. The Town argues that none of these claims is cognizable in the Civil Division of
the Superior Court or has any evidentiary support. The Town argues that Mr. Chandler’s issues
with permitting belong in the Environmental Division, not in a case in the Civil Division, and
that his claims about his taxes should have been addressed through statutory processes designed
to address tax disputes.

       The murkiness of Mr. Chandler’s claims is exacerbated by his failure to comply with
Rule 56, whether with regard to his own summary judgment motion or in opposition to the
Town’s. As for the latter, he generally asserts that the facts in the Town’s statement of
undisputed facts “are falsehoods at best and unlawful and criminal.” Mr. Chandler’s Objections
to Defendants Motion for Summary Judgment ¶ 6 (filed Apr. 28, 2014). He does not further
specify. This does not comply with Rule 56(c)(1)(A). The Town’s well-supported facts will be
considered admitted for purposes of summary judgment. V.R.C.P. 56(e)(2), (3).

        Mr. Chandler also appears to misunderstand that the burden of persuasion for his claims
is on him, not the Town. He repeatedly objects that the Town has not presented evidence that
refutes his claims. Under Rule 56, when the burden of persuasion is on the nonmoving party, the
moving party may support its summary judgment motion (and satisfy its burden of production)
by indicating an absence of record evidence in support of the claim. To survive summary
judgment, the nonmoving party then must come forward with evidence of a triable issue.
Clayton v. Unsworth, 2010 VT 84, ¶ 16, 188 Vt. 432. Merely saying that the Town has not
disproven his claims neither helps to clarify them nor shows that any of those claims might have
evidentiary support.


       The zoning permit process

        Mr. Chandler has been involved in numerous zoning permit cases related to the Newfane
property at issue in this case over the years. The record includes many decisions of the
Environmental Division, and one from the Supreme Court, that emerged from those cases. There
is no need to parse the details of those decisions here. In general, they reflect a great deal of
confusion about whether Mr. Chandler’s evolving plans for the property at any given time were
properly characterized as residential or commercial. The size of the property evidently
forecloses independent residential and commercial uses. Eventually, with the guidance provided
by an Environmental Division judicial ruling, Mr. Chandler applied for a residential use with a
subsidiary home occupation (or home industry). The Environmental Division granted that
application and issued a permit with conditions.

        As a general matter, the Civil Division of the Superior Court has no jurisdiction to review
either a Town’s or the Environmental Division’s zoning permit decisions. 4 V.S.A. §§ 31(1), 34
(exempting subject matter within the Environmental Division’s jurisdiction from the Civil
Division’s). To the extent that Mr. Chandler may have thought that the Town got a zoning
decision wrong, his exclusive remedy was an appeal to the Environmental Division. 24 V.S.A. §

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4472(a). The Vermont Supreme Court has jurisdiction over appeals from the Environmental
Division. 4 V.S.A. § 2(a). The rightness or wrongness of any particular permit decision is not
properly before this Court.

        Otherwise, there are no specific allegations that could support any inference of any
tortious or other wrongful act by the Town in the course of the numerous zoning permit cases
that might give rise to a claim within the Civil Division’s jurisdiction. It is not uncommon for a
landowner whose zoning application has been denied by a town to feel that something unfair has
happened. The remedy is to appeal to the Environmental Division and, if necessary, to the
Supreme Court. A basis for a private cause of action in the Civil Division has not been shown.


       The wrongful “cease-and-desist” order

        Mr. Chandler claims that at some point the Town wrongfully obtained a “cease-and-
desist” order without a bond and this resulted in damage to his real and personal property. The
damage allegedly was caused by a flood. Apparently, Mr. Chandler claims that the cease-and-
desist order prevented him from doing something to prevent the flood or to prevent the property
damage that the flood caused.

        The Environmental Division in one zoning appeal ordered Mr. Chandler to stop
construction on a foundation. See Order Regarding Stay of Construction 1, Appeal of Chandler,
No. 155-8-05 Vtec (Vt. Envtl. Ct. Sept. 29, 2005) (Durkin, J.). However, the decision reflects
that Mr. Chandler stipulated to the stay of construction. Mr. Chandler’s agreement to stop
construction forecloses his allegation that the order was wrongfully obtained by the Town in
some manner. The Civil Division has no jurisdiction to review the order and provide a remedy
in any event.


       The incorrect assessment of his property for tax purposes

         Mr. Chandler claims that the Town has improperly characterized his property as
industrial for assessment purposes. His tax bills show that he has been paying the non-residential
education rate. If Mr. Chandler has a grievance with his appraisal or any action of the Town’s
listers in producing the grand list, he should have sought relief directly from them. 32 V.S.A. §
4111(g). If still aggrieved, he could seek relief from the board of civil authority. Id. §§ 4404,
4407. If still aggrieved, he could further seek relief from the Division of Property Valuation and
Review of the Department of Taxes or in the Civil Division of the Superior Court. Id. § 4461(a).
There is no evidence that Mr. Chandler grieved, but even so, the nature of his claim is one that
would come to the Civil Division as an appeal under § 4461(a) and not in a claim for a private
cause of action.

        If Mr. Chandler thought he was entitled to an abatement of his taxes, he could so petition
the board of abatement. 24 V.S.A. § 1535. If still aggrieved, he then might seek Rule 75 review
in the Civil Division of the Superior Court. V.R.C.P. 75; see generally, e.g., Garbitelli v. Town
of Brookfield, 2011 VT 122, 191 Vt. 76 (Rule 75 review of decision of board of abatement).

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There is no evidence that Mr. Chandler ever petitioned the board of abatement and no Rule 75
claim in this case.

       If Mr. Chandler’s claim relates to a homestead property tax income sensitivity
adjustment, then his exclusive remedy is an appeal to the Commissioner of the Department of
Taxes. 32 V.S.A. § 6072.

        Otherwise, there are no specific allegations that could support any inference of any
tortious or other wrongful act committed by the Town that relates to Mr. Chandler’s taxes and
could be within this Court’s jurisdiction.


         Refusal to accept the deed for recording

        Mr. Chandler asserts that the Town, at least for a time, expressly refused to accept for
recording the deed by which he acquired his Newfane property. The deed from Phoenix
Management Co. to Mr. Chandler was executed in 2006. The only receipt in the record for the
corresponding transfer tax return indicates on its face that the Town received it for recording on
April 24, 2013. Mr. Chandler asserts in a general way, without specific facts, that on some
unspecified date(s) before April 24, 2013 he was not permitted to record the deed. The Town is
entitled to summary judgment on this aspect of the case for two reasons. First, the claim lacks
sufficient specificity, which has not been provided in response to the Town’s summary judgment
motion, to support a claim of wrongful refusal to record a properly submitted deed. Moreover,
even if it were true that the Town Clerk wrongfully refused to record a properly submitted deed,
it could be the subject of a Rule 75 Review of Governmental Action petition to this Court, but
the action would have to have been filed within 30 days of the refusal. V.R.C.P. 75(c). This
case was filed on June 12, 2013, which was beyond the time limit.


         Other allegations

         Mr. Chandler makes a number of other allegations that seem to be unrelated to the claims
above or only tangentially related at most. Some of these include the following: (1) that agents
of the Town hate him and make their official decisions with regard to him based on that hatred;
(2) that agents of the Town adhere to different religious principles than he does and hate him for
it; (3) that much of what agents of the Town do is unlawful, wrongful, and criminal; and (4) that
agents of the Town admit that much of what they do is unlawful, wrongful, and criminal.
Though unclear how these general allegations might have been intended to relate to his legal
claims, the Court notes that the record lacks specific evidence of any of them.

         The Court does not need to reach any other arguments raised by the Town and declines to
do so.




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                                        ORDER

     For the foregoing reasons, it is hereby ordered that
1.   Defendants’ Motion to Extend (#3) is denied as moot;
2.   Plaintiff’s Motion to Quash (#5) is denied as moot;
3.   Plaintiff’s Motion for Sanctions (#6) is denied;
4.   Plaintiff’s Motion for Summary Judgment (#7) is denied; and
5.   Defendants’ Motion for Summary Judgment (#8) is granted.

     Dated at Newfane, Vermont this 3rd day of October 2014.


                                                _____________________________
                                                Mary Miles Teachout
                                                Superior Judge




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