                                     STATE OF VERMONT

                                  ENVIRONMENTAL COURT

               Town of Hartford, Plaintiff,
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               v
                                                   } Docket No. 203-10-99 Vtec
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               Kathryn O= Connell-Kivler,
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               Defendant.

       Decision and Order on Town= s Petition for Contempt and Town=s Rule 70 Motion

The Town of Hartford has moved for specific enforcement of the Stipulation for Final Order
entered into by the parties and entered as an order of the Court (> the Consent Order@ ) in this
matter on May 26, 2000. Defendant was represented by counsel as of the May 2000 stipulation,
but represented herself in these enforcement proceedings; the Town is represented by Kimberlee
J. Sturtevant, Esq. An evidentiary hearing was held in this matter before Merideth Wright,
Environmental Judge, who also took a site visit with the parties. The parties were given the
opportunity to submit written requests for findings and memoranda of law. Upon consideration
of the evidence, the site visit, and the written memoranda and proposed findings, the Court finds
and concludes as follows.

Defendant owns a parcel of land located easterly of Kriskarli Drive, part of a subdivision shown
on a 1997 plan entitled A Minor subdivision for Katherine O= Connell-Kivler, O= Connell Court,
Hartford, Vermont@ recorded in Hanging File 329A in the Town= s land records. The Town
originally brought the above-captioned zoning enforcement complaint against Defendant based
on her commencement of work to relocate the subdivision roadway known as O= Connell Court
so that it is located entirely within the limits of the right-of-way shown on that plan, without
having first obtained a permit to do so. In connection with the relocation, Defendant performed
excavation work as shown on Exhibits 5A through 5F, referred to in the settlement order (Exhibit
107-1 through 107-6 in the present proceedings). Defendant and the Town stipulated to the
settlement of that enforcement action, authorizing her to Acomplete [the] work associated with
the relocation of O= Connell Court@ in accordance with the following requirements, and requiring
her to pay a $2,000 fine:

A. Defendant shall fill and re-grade all areas where excavation work created a cut into banks
adjoining O= Connell Court and re-grade the filled area to establish a slope of no more than 5
(horizontal) on 1 (vertical). Defendant shall fill and re-grade the cut area adjoining the property
of Richard and Patty Spear as shown on Exhibits 5B and 5C no later than June 30, 2000.

B. Defendant shall re-grade and reseed all areas disturbed by work associated with relocation of
O= Connell Court. Defendant shall re-grade and reseed the area adjoining the Spear property no
later than June 30, 2000.
C. Defendant shall reuse on site or remove from the property all debris or stockpiled material
associated with the relocation of O= Connell Court.

D. Defendant shall complete all work required above by September 30, 2000, except the work
which is required to be completed by June 30, 2000, which work must be completed by that date.

The stipulation was drafted by the Town= s attorney and printed on the Town= s attorney= s
letterhead. It must be interpreted against the drafter in the event of ambiguity.

For the purposes of analyzing and discussing the areas excavated in association with the
relocation of O= Connell Court, a diagram of the four areas was admitted into evidence as Exhibit
102; this decision refers to those areas: Area 1 between O= Connell Court and Defendant= s home
property, along the first stretch of O= Connell Court; Area 2 between O= Connell Court and
Defendant= s home property, along O= Connell Court after it makes a 90-degree turn; Area 3 in
front of the Spears= house (marked A neighbor= s house@ on Exhibit 102); and Area 4 along O=
Connell Court across the Spears= driveway on property intended as a future right-of-way to three
additional lots in the subdivision. The photographs in evidence as Exhibits 107-1 through 107-6
show the areas where the excavation work had created a cut into the banks adjoining O= Connell
Court, and show the stockpiled material along the sides of the newly-configured O= Connell
Court. The photographs in evidence as B-1 and B-2, dating from May 1997 before the
excavation work had been done, show that the grass growing on the native soils was sparse and
dry relative to the prepared lawn in front of Defendant= s house. The native soil is sandy and
gravelly and drains easily, drying out the vegetation relatively quickly in the absence of
watering.

Defendant did reuse on site or did remove all debris and stockpiled material associated with the
relocation of O= Connell Court. The debris and stockpiled material had been removed by June 28,
2000 in Area 3 adjoining the Spear property, and by approximately September 30, 2000 for the
remainder of the areas.

Defendant did fill and re-grade all the areas where excavation work had created a cut into banks
adjoining O= Connell Court and did re-grade the filled area to establish a slope of no more than 5
(horizontal) on 1 (vertical). She did this work using the material that had been removed from the
areas where O= Connell Court was to be relocated. Because these native soils are sandy and
gravelly, this material contained more stones and was more sandy and drier than new topsoil
imported into the area would have been. Nothing in the Consent Order required the filling and
regrading to be done with imported topsoil or with materials other than those stockpiled on the
property. All four areas had been filled and regraded before approximately September 30, 2000,
except that Defendant accomplished the work to fill and re-grade the cut area in Area 3 adjoining
the property of Richard and Patty Spear by June 28, 2000.

After regrading, Defendant did reseed all areas disturbed by work associated with relocation of
O= Connell Court. Although not specified in the Consent Order, > reseeding= reasonably includes
the raking or other similar preparation of the ground surface to accept seed; the spreading of a
grass seed mix, the spreading of some type of mulch, and watering as necessary so that the seed
germinates and grows, with replacement reseeding of any area that does not germinate and grow.
The term > reseeding= by itself without further specification for maintenance or replacement of
does not include any mowing, maintenance, repair or replacement of the reseeded area after that
first crop of grass germinates and grows successfully, whether due to drought conditions, winter
kill or any other reason not caused by Defendant. Also, the term > reseeding= by itself without
further specification does not include the addition of imported topsoil, the rolling or compaction
of that topsoil, or the installation of an in-ground temporary irrigation system, even though those
actions are suitable to be included in the installation of a lawn by a professional landscaper who
will be guaranteeing the work for at least a year after installation.

Defendant accomplished the work required under the Consent Order to reseed Area 3 adjoining
the Spear property no later than June 30, 2000, by seeding, mulching with hay, and watering as
necessary to promote the germination and growth of the seeds. The grass germinated and grew
adequately, except in the area by the telephone pole which is used as a pathway from O= Connell
Court onto the Spear property and therefore was prevented from growing for a reason beyond
Defendant= s control. Defendant accomplished the work required under the Consent Order to
reseed Areas 1, 2 and 4 no later than approximately September 30, 2000, by seeding, mulching
with hay, and watering as necessary to promote the germination and growth of the seeds. The
grass germinated and grew adequately in the fall of 2000 in all four areas. The Town conceded at
trial that some areas had been adequately > restored= by the end of the 2000 growing season, but
that they had all deteriorated considerably in the 2001 growing season.

Whether due to normal winter kill or to unusually dry conditions, by the time of the trial and site
visit in this matter in June of 2001, the grass in all four areas had died back somewhat, so that the
grassed areas are sparser than a conventionally-installed lawn and weedy vegetation has grown
up within the grass. The area most resembling an established lawn is the area adjacent to
Defendant= s driveway (Area 2). Defendant continues to maintain and do work on the vegetated
areas within the O= Connell Court right-of-way (not covered by the gravel traveled way).
However, the Consent Order does not obligate her to do this work, nor does it require those areas
to be planted with lawn as opposed to other vegetation, nor does it require that all four areas have
the same appearance.

The Town argues that the A intent@ of the Consent Order was to A restore@ the property to its
condition prior to the excavation, as had been stated in an earlier settlement demand by the Town
to A restore the property to its condition prior to the excavation, including, at a minimum, remove
all stockpiled materials, grade & reseed, etc. . .@ First, the Town interprets that demand as the
equivalent of installing a lawn on all four areas of the property, although the condition of those
areas prior to the excavation was more sparse vegetation than a commercially-installed lawn,
suitable to the grass verge of a right-of-way in sandy soil. More importantly, no requirement to A
restore the property@ is found in the Consent Order, nor is there any reference to the condition of
the property prior to the excavation. The Consent Order only requires what it actually requires; a
court does not look beyond the four corners of the document to its intent unless there is
ambiguity in the language. Moreover, it must be interpreted against the drafter which in this
instance is the Town.

Based on the foregoing, it is hereby ORDERED and ADJUDGED that by the end of September
2000, Defendant had complied with the remedial1 terms of the settlement she entered into with
the Town, entered as a court order on May 26, 2000. No further enforcement of the remedial
terms of that order is warranted; this decision and order concludes the above-captioned
enforcement action.

Dated at Barre, Vermont, this 18th day of January, 2002.



___________________
Merideth Wright
Environmental Judge



                                           Footnotes
1.
    That is, other than Paragraph 5 regarding the $2,000 fine, about which no evidence was
presented to the Court and about which the Court makes no findings or conclusions.
