                                         State of Vermont
                              Superior Court—Environmental Division

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                   ENTRY REGARDING MOTION
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In re Whiteyville Properties, LLC                                          Docket No. 179-12-11 Vtec
(Appeal of City of Burlington DRB decision)

Title: Motion for Sanctions (Filing No. 1)
Filed: May 15, 2012
Filed By: Whiteyville Properties, LLC
Opposition to Motion filed on 6/18/12 by City of Burlington
Response to Opposition filed on 7/2/12 by Whiteyville Properties, LLC
Reply to Response to Opposition filed on 7/24/12 by City of Burlington
Response to Reply to Response to Opposition filed on 8/3/12 by Whiteyville Properties, LLC


    Granted                          X Denied                          Other

        At a January, 2012 status conference, the Court accommodated the joint request of
Applicant Whiteyville Properties, LLC (“Applicant”) and the City of Burlington (“City”) to
allow limited continued informal negotiations related to the above-referenced appeal. Pursuant
to V.R.E.C.P. 2(d) and V.R.C.P. 16.3(a)(3)(a)(A), the Court ordered the parties—should their
informal efforts fail—to complete mediation by March 19, 2012. On March 21, the parties
informed the Court that scheduling conflicts prevented a meeting before March 27, 2012. 1
        The parties attended mediation on March 27, 2012. (Alternative Dispute Resolution
Report at 1, filed Apr. 12, 2012). Applicant alleges that “[t]he mediation lasted approximately
fifteen minutes, [and] the parties came to a solution,” but that the City acted in bad faith
because its representatives (Attorney Sturtevant and Senior Planner Scott Gustin) lacked
authority to bind the City. (Applicant’s Mot. for Sanctions at 1, filed May 15, 2012). Applicant
alleges that the actions of the City’s representatives and their lack of authority to settle caused
“damages in time and money.” Id. The City maintains that prior to the start of the mediation
session, it informed Applicants that the DRB would have to approve any tentative settlement
reached during the mediation. (City’s Opp. to Applicant’s Mot. for Sanctions at 1, filed Jun. 18,
2012). Applicant disputes that this representation was made before settlement. See Applicant’s
Reply Mem. at 1, filed Aug. 3, 2012. But Applicant fails to dispute the City’s assertion that
settlement of this litigation required approval from its Board and that the Board could not
delegate that authority to a single individual.


1 The letter, filed by the City, indicated that Applicant’s attorney joined in the City’s request to postpone
the scheduled conference with the Environmental Case Manager until after the mediation due to the
scheduling difficulties. Applicant does not deny that his attorney joined in this request, nor does he
assert that he objected to this extension of time.
In re Whiteyville Properties, No. 179-12-11 Vtec (E.O. on Mot. for Sanctions) (12-13-12)                  Pg. 2 of 2.


         Applicant misunderstands the role of municipalities in the mediation process. Only the
City’s democratically-elected City Council has final authority to accept or reject any settlement
of litigation on the part of the City. Alternatively—as appears might be the case here—a revised
plan may need to return to the City of Burlington Development Review Board (“DRB”) for
approval. Either way, the entire City Council or DRB cannot attend and participate in a
confidential mediation session, due to the fact that any meeting of a majority of either of those
bodies must be noticed in advance as a public meeting.
        Rule 16.3 of the Vermont Rules of Civil Procedure require that when a party is ordered
to participate in mediation, that party must attend the mediation or have a representative at the
mediation who has authority to settle the dispute at issue. V.R.C.P. 16.3(c)(5). A court is
authorized to impose one or more sanctions against any party who does not fulfill their
obligations under a Rule 16.3 mediation order, unless the party shows “good cause” for its non-
compliance. V.R.C.P. 16.3(h).
        All municipalities who participate in litigation face the difficulty of strict compliance
with V.R.C.P. 16.3(c)(5), given the impossibility of its legislative body delegating its authority to
settle pending litigation. The common practice established by this Court, given the frequency
that municipal entities are parties in litigation before us, is to require that, if and when
mediation results in a settlement, that settlement is contingent upon final approval by the
municipality’s legislative body. The City followed that practice here. We therefore conclude
that the City has shown good cause not to be subject to the sanctioning power this Court is
authorized to exercise through V.R.C.P. 16.3(h).
        Our review of the affidavits submitted by both sides does not reveal any evidence of bad
faith or unreasonable delay on the City’s part with regard to the very brief mediation session at
issue. Thus, we DENY Applicant Whiteyville Properties, LLC’s request for sanctions.




_________________________________________                                         December 13, 2012
       Thomas S. Durkin, Judge                                                        Date
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Date copies sent: ____________                                                Clerk's Initials: _______
Copies sent to:
  Attorney Michael D. Johnson for Appellant Whiteyville Properties, LLC
  Attorney Kimberlee J. Sturtevant for City of Burlington
  Interested Person John Douglas
  Interested Person Eleanor Lanahan
  Interested Person Amanda Phillips
  Interested Person Briggs Phillips
