                                       STATE OF VERMONT
SUPERIOR COURT                                                          ENVIRONMENTAL DIVISION
Environmental Division Unit                                                 Docket No. 9-1-15 Vtec

                                  Churchview Estates LLC NOV

                                 ENTRY REGARDING MOTION

Count 1, Municipal DRB Notice of Violation (9-1-15 Vtec)

Title:          Motion for Summary Judgment (Motion 2)
Filer:          Town of Williston
Attorney:       Paul S. Gillies
Filed Date:     August 26, 2015

Statement of Material Facts filed in response

The motion is DENIED.

       In this matter, Respondent Churchview Estates, LLC appeals a notice of violation from
the Town of Williston (Town), which cited Respondent for (1) beginning construction on two
duplex units without permits and (2) failing to provide financial guarantees for completion of
improvements, as required in Respondent’s subdivision permit. In its Statement of Questions,
Respondent raises issues of deemed approval; growth management allocations; the Town’s
authority to deny certificates of occupancy; and the Town’s authority to demand financial
guarantees.

        The Town has moved for summary judgment, summarizing the notice of violation and
asserting that Respondent began construction without permits and that it has never provided
letters or credit or an escrow agreement. In opposition to the motion, Respondent filed a
Statement of Material Facts and no supporting legal brief or memorandum. The Statement of
Material Facts can be interpreted to assert that it poured one foundation (not both),1 that its
permits are deemed approved, that it posted an escrow agreement with the Town (though for
less than the Town asked for), and that it was only required to provide financial guarantees
through 2010.

       The Town is represented by Attorney Paul Gillies. Respondent was originally
represented by Attorney Guy Babb, but Attorney Babb has since withdrawn. Respondent is

        1
          Respondent also argues that photos the Town attached to its motion for summary judgment only show
construction of foundation drains, which it claims is not a violation.
now pro se, and Rene Thibault, presumably a member of Churchview Estates, LLC, speaks for
Respondent.

                                                   Discussion
        We will grant a motion for summary judgment if the movant can show that “there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” V.R.C.P. 56(a). A party arguing that facts are or are not disputed must support its
argument with specific citations to particular parts of materials in the record such as
depositions, documents, affidavits, and stipulations. V.R.C.P. 56(c)(1)(A). In determining
whether there is a dispute of material fact, we will give the non-moving party the benefit of all
reasonable doubts and inferences. Wilcox v. Village of Manchester Zoning Bd. of Adjustment,
159 Vt. 193, 196 (1992). When the moving party would bear the burden of proof at trial, the
movant must introduce sufficient undisputed facts to satisfy its substantive evidentiary burden.
In a notice of violation appeal, the town bears the burden of showing that respondent
committed an enforceable violation. Town of Huntington v. Harriman, No. 27-2-11 Vtec, slip
op. at 1 (Vt. Super. Ct. Envtl. Div. Dec. 27, 2011) (Durkin, J.). Courts should not grant summary
judgment against pro se defendants just because pro se defendants’ disputed facts are “offered
in a manner arguably not in compliance with the rule.” Bingham v. Tenney, 154 Vt. 96, 101–02
(1990).

        With regard to the unpermitted construction issue, we deny summary judgment
because the Town has failed to assert any facts showing that Respondent does not have
permits by virtue of deemed approval, an issue that Respondent raises in its Statement of
Questions and which Respondent asserts again in its opposition to summary judgment. This is a
mixed question of law and fact, and it is disputed. If Respondent obtains a court judgment that
its permits were deemed approved, this would mean it did not begin construction without “the
necessary permits.”2 We therefore deny summary judgment on this aspect of the violation.

       With regard to the issue of financial guarantees, we also deny summary judgment
because we interpret Respondent’s opposition to raise factual disputes about whether it
submitted any guarantees and in what amount, and whether financial guarantees were
required after 2010. We therefore deny summary judgment on this aspect of the violation as
well.

        2
           Our decision to “exercise [our] discretion and refuse to grand summary judgment,” Bingham, 154 Vt. at
101, is also colored by the Town’s failure to clearly explain in its motion what laws or requirements Respondent
violated. The Town asserted two facts—that Respondent began construction without “the proper permits” and
that Respondent never offered any financial guarantees. By way of legal argument, the Town wrote:
        The Violation. As Exhibit 2 reveals the present case involves a notice of violation filed against Churchview
        dated October 15, 2014 for failing to post a letter of credit or escrow agreement guaranteeing completion
        of all the required public and private improvements and for starting construction of two duplex units
        without obtaining necessary permits. Exhibit 1 (bylaws); Exhibit 2 (NOV); Exhibit 4 (July 25, 2006
        subdivision permit (SUB 04-04)), and as amended June 9, 2009 and July 10, 2012).
We review cases de novo. A summary of what a notice of violation alleged, with general references to (lengthy)
attachments, is not sufficient to establish that a violation has actually occurred.
                                           Conclusion
       Because we find there are disputed issues of material fact in this notice of violation
appeal, and because the Town fails to establish that it is entitled to judgment as a matter of
law, we DENY summary judgment to the Town. The Court will schedule a status conference to
determine next steps for this case.

So ordered.

Electronically signed on February 01, 2016 at 01:09 PM pursuant to V.R.E.F. 7(d).



_________________________________________
Thomas G. Walsh, Judge
Superior Court, Environmental Division




Notifications:
Paul S. Gillies (ERN 3786), Attorney for Interested Person Town of Williston
Interested Person John Tardie
Interested Person Christine Tardie
Appellant Churchview Estates, LLC

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