STATE OF VERMONT
ENVIRONMENTAL COURT
} In re: Premiere Homes of Vermont } (Appeal of Daley; Appeal of Harrington) } Docket No. 186‐9‐05 Vtec (Cross‐Appeal of Premiere Homes of Vt.) } }
Amended Decision and Order on Motion to Convert Mediated Agreement to Final Court Order
Applicant‐Cross‐Appellant Premiere Homes of Vermont (Applicant) is represented
by Stephanie A. Lorentz, Esq.; Appellants Richard and Wendy Daley are represented by
Attorney John A. Facey, III; Additional Appellant Brian Harrington represents himself; and
the Town of West Rutland is represented by Will S. Baker, Esq. and Steven F. Stitzel, Esq.
Interested persons Ralph H. Perry and Kurt Keller initially entered their respective
appearances representing themselves, but did not participate in the initial pretrial
telephone conference nor in the mediation. Mr. Keller did participate in the oral argument
by telephone on the present motion. After the Court issued its order on the present motion
on June 1, 2006, Applicant moved for reconsideration.
After receiving the parties memoranda on the motion for reconsideration, and after
considering oral argument on the motion in a telephone conference on July 17, 2006, and
a motion hearing on July 24, 2006, the Court hereby GRANTS the motion in part and
DENIES the motion in part. Revisions to the June 1, 2006 order are granted as follows; the
complete revised order is set forth below.
Revised Decision and Order
The Court issued a scheduling order in this matter after the initial pretrial
conference, pursuant to V.R.E.C.P. 2(d); the scheduling order reflected that parties agreed
1 at the conference to engage in mediation, and required them to mediate. The mediation
session was held on November 8, 2005, with mediator Joan Loring Wing. The parties
signed an agreement to mediate circulated by the mediator prior to the session; that
agreement recommends that the parties be represented by counsel and that they may
consult with counsel during the mediation session and before entering into any written
agreement resulting from the mediation session.
Participating in the mediation session were Attorney Lorentz, with Applicant’s
president; Attorneys Stitzel and Baker, with representatives of the Town; Attorney Facey
with Appellant Richard Daley; and Appellant Harrington, representing himself. As
described by the parties in the hearing on whether to adopt the settlement order as a court
order in this matter, the mediation session lasted most of the day, during much of which
the parties were in separate rooms while Mediator Wing went back and forth among them
to discuss various proposals. As described by the participants, the mediation focused on
the issues among the represented parties more than, or in advance of, the issues raised by
Mr. Harrington in his clarified Statement of Questions, resulting in his perception1 of being
isolated during the mediation process, and being put under some pressure to reach an
agreement.
The mediation resulted in a twelve‐page document, consisting of six pages of
handwritten text, numbered 1 through 6 near the upper left corner of each page; a
handwritten page styled as a signature page pertaining to pages 1 through 6; a handwritten
1 Due to the confidentiality agreement, Mr. Harrington was unable to detail to the Court the specific issues on which he stated that he felt pressured by the mediator to agree, and was therefore unable to fully portray to the Court the basis for his frustration with the mediation process. Because of this, we specifically note here that the result in this order is not due to Mr. Harrington’s subjective perception of whether or not he felt improperly pressured to agree, but rather is based on the objective evidence of which pages of the document he had signed.
2 page numbered 7 near the upper left corner of the page, containing text regarding tree
planting; a page labeled “Schedule A” consisting of a photocopied portion of the project
plan near the Daleys’ property, with handwritten restrictions as to location of structures
and height of trees or shrubs; and a three‐page photocopy of the August 10, 2005 Planning
Commission decision that is the subject of the appeal, labeled on its first page “Exhibit B.”
Applicant has moved for the handwritten document that resulted from the
mediation to be converted to a final order of the Court. The Town and Appellants Daley
support that motion. Appellant Harrington opposes it.
Page 1 of the document is (incorrectly) captioned “Richard and Wendy Daley v.
Town of West Rutland Planning Commission,” bears the title “Stipulation for Entry of
Order,” and states as its introductory language: “Now come the parties hereto and
stipulate and agree that the Court may enter the following order in this matter.” Paragraph
1 of the document, also on page 1, provides that the subdivision plat approval attached as
Exhibit B is approved, subject to the “further terms and conditions set forth below.”
However, the page containing this paragraph is not signed or initialed by Mr. Harrington.
Only the paragraph on the page numbered 7, dealing with the tree planting obligations, is
signed by Mr. Harrington as well as by or on behalf of the Town, Appellants Daley, and
Applicant. The first six pages and the signature page pertaining to those pages are signed
only by or on behalf of the Town, Appellants Daley, and Applicant. Mr. Harrington did
not sign those pages, or agree to the entry of any pages of the document as a court order,
or agree to the approval of the Planning Commission’s decision subject to the additional
conditions laid out in the remainder of the document.
While this Court supports the use of mediation to resolve disputes filed as appeals
in this Court, in the present matter, Additional Appellant Harrington only signed an
agreement regarding the planting of trees, found on the page numbered 7. He therefore
3 can be held to the settlement of his issues regarding appropriate screening and planting of
trees, but not to any settlement of the other issues raised in his clarified statement of
questions. The documents do not show any agreement on the part of Mr. Harrington to the
other paragraphs and do not show any agreement on his part to the entry of even page 7
as a court order. Therefore, the agreement embodied on pages 1 through 6 stands as an
agreement among the Town, Appellants Daley, and Applicant, but it cannot be entered as
an order of the Court resolving the entire case. This agreement could be entered as an
order of the Court resolving the Daleys’ appeal, but such an entry would have to be made
subject to any future order that might be made or additional conditions that might be
imposed in the litigation or future settlement of the issues (other than those related to
appropriate screening or planting of trees) raised by Mr. Harrington in his clarified
statement of questions.
On the other hand, the paragraph signed by Mr. Harrington constitutes an
agreement among the Town, Appellants Daley, Applicant, and Mr. Harrington, but at the
present time there is no agreement that it be entered as a court order or that it concludes
any of the other issues (that is, other than those related to appropriate landscaping,
screening, or preservation of existing trees or existing cover) raised by Mr. Harrington in
his clarified Statement of Questions.
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STATE OF VERMONT
ENVIRONMENTAL COURT
} In re: Premiere Homes of Vermont } (Appeal of Daley; Appeal of Harrington) } Docket No. 186‐9‐05 Vtec (Cross‐Appeal of Premiere Homes of Vt.) } }
Amended Decision and Order on Motion to Convert Mediated Agreement to Final Court Order
Applicant‐Cross‐Appellant Premiere Homes of Vermont (Applicant) is represented
by Stephanie A. Lorentz, Esq.; Appellants Richard and Wendy Daley are represented by
Attorney John A. Facey, III; Additional Appellant Brian Harrington represents himself; and
the Town of West Rutland is represented by Will S. Baker, Esq. and Steven F. Stitzel, Esq.
Interested persons Ralph H. Perry and Kurt Keller initially entered their respective
appearances representing themselves, but did not participate in the initial pretrial
telephone conference nor in the mediation. Mr. Keller did participate in the oral argument
by telephone on the present motion. After the Court issued its order on the present motion
on June 1, 2006, Applicant moved for reconsideration.
After receiving the parties memoranda on the motion for reconsideration, and after
considering oral argument on the motion in a telephone conference on July 17, 2006, and
a motion hearing on July 24, 2006, the Court hereby GRANTS the motion in part and
DENIES the motion in part. Revisions to the June 1, 2006 order are granted as follows; the
complete revised order is set forth below.
Revised Decision and Order
The Court issued a scheduling order in this matter after the initial pretrial
conference, pursuant to V.R.E.C.P. 2(d); the scheduling order reflected that parties agreed
1 at the conference to engage in mediation, and required them to mediate. The mediation
session was held on November 8, 2005, with mediator Joan Loring Wing. The parties
signed an agreement to mediate circulated by the mediator prior to the session; that
agreement recommends that the parties be represented by counsel and that they may
consult with counsel during the mediation session and before entering into any written
agreement resulting from the mediation session.
Participating in the mediation session were Attorney Lorentz, with Applicant’s
president; Attorneys Stitzel and Baker, with representatives of the Town; Attorney Facey
with Appellant Richard Daley; and Appellant Harrington, representing himself. As
described by the parties in the hearing on whether to adopt the settlement order as a court
order in this matter, the mediation session lasted most of the day, during much of which
the parties were in separate rooms while Mediator Wing went back and forth among them
to discuss various proposals. As described by the participants, the mediation focused on
the issues among the represented parties more than, or in advance of, the issues raised by
Mr. Harrington in his clarified Statement of Questions, resulting in his perception1 of being
isolated during the mediation process, and being put under some pressure to reach an
agreement.
The mediation resulted in a twelve‐page document, consisting of six pages of
handwritten text, numbered 1 through 6 near the upper left corner of each page; a
handwritten page styled as a signature page pertaining to pages 1 through 6; a handwritten
1 Due to the confidentiality agreement, Mr. Harrington was unable to detail to the Court the specific issues on which he stated that he felt pressured by the mediator to agree, and was therefore unable to fully portray to the Court the basis for his frustration with the mediation process. Because of this, we specifically note here that the result in this order is not due to Mr. Harrington’s subjective perception of whether or not he felt improperly pressured to agree, but rather is based on the objective evidence of which pages of the document he had signed.
2 page numbered 7 near the upper left corner of the page, containing text regarding tree
planting; a page labeled “Schedule A” consisting of a photocopied portion of the project
plan near the Daleys’ property, with handwritten restrictions as to location of structures
and height of trees or shrubs; and a three‐page photocopy of the August 10, 2005 Planning
Commission decision that is the subject of the appeal, labeled on its first page “Exhibit B.”
Applicant has moved for the handwritten document that resulted from the
mediation to be converted to a final order of the Court. The Town and Appellants Daley
support that motion. Appellant Harrington opposes it.
Page 1 of the document is (incorrectly) captioned “Richard and Wendy Daley v.
Town of West Rutland Planning Commission,” bears the title “Stipulation for Entry of
Order,” and states as its introductory language: “Now come the parties hereto and
stipulate and agree that the Court may enter the following order in this matter.” Paragraph
1 of the document, also on page 1, provides that the subdivision plat approval attached as
Exhibit B is approved, subject to the “further terms and conditions set forth below.”
However, the page containing this paragraph is not signed or initialed by Mr. Harrington.
Only the paragraph on the page numbered 7, dealing with the tree planting obligations, is
signed by Mr. Harrington as well as by or on behalf of the Town, Appellants Daley, and
Applicant. The first six pages and the signature page pertaining to those pages are signed
only by or on behalf of the Town, Appellants Daley, and Applicant. Mr. Harrington did
not sign those pages, or agree to the entry of any pages of the document as a court order,
or agree to the approval of the Planning Commission’s decision subject to the additional
conditions laid out in the remainder of the document.
While this Court supports the use of mediation to resolve disputes filed as appeals
in this Court, in the present matter, Additional Appellant Harrington only signed an
agreement regarding the planting of trees, found on the page numbered 7. He therefore
3 can be held to the settlement of his issues regarding appropriate screening and planting of
trees, but not to any settlement of the other issues raised in his clarified statement of
questions. The documents do not show any agreement on the part of Mr. Harrington to the
other paragraphs and do not show any agreement on his part to the entry of even page 7
as a court order. Therefore, the agreement embodied on pages 1 through 6 stands as an
agreement among the Town, Appellants Daley, and Applicant, but it cannot be entered as
an order of the Court resolving the entire case. This agreement could be entered as an
order of the Court resolving the Daleys’ appeal, but such an entry would have to be made
subject to any future order that might be made or additional conditions that might be
imposed in the litigation or future settlement of the issues (other than those related to
appropriate screening or planting of trees) raised by Mr. Harrington in his clarified
statement of questions.
On the other hand, the paragraph signed by Mr. Harrington constitutes an
agreement among the Town, Appellants Daley, Applicant, and Mr. Harrington, but at the
present time there is no agreement that it be entered as a court order or that it concludes
any of the other issues (that is, other than those related to appropriate landscaping,
screening, or preservation of existing trees or existing cover) raised by Mr. Harrington in
his clarified Statement of Questions.
As discussed in the July 17, 2006 conference and limited in the July 24, 2006 motion
hearing, by raising the issue of the adequacy and effectiveness of the stormwater drainage
system, Mr. Harrington sought primarily to challenge the removal of trees within the Old
Town Farm Road right‐of‐way and the use of swales in the grading of the land towards
that drainage system to the extent that those features may affect his view of or screening
of the proposed subdivision from his property. While he proposes to cross‐examine
Applicant’s engineer as to the functioning of the drainage system, he does not propose to
present any testimony, expert or otherwise, related to the adequacy of the stormwater
4 drainage proposed for the subdivision, in relation to its ability effectively to drain water.
Accordingly, to the extent that the questions relating to drainage relate to issues of
landscaping, screening, and preservation of existing trees or existing cover, they and the
issues specifically relating to landscaping, screening, and preservation of existing trees or
existing cover fall within the settlement paragraph that Mr. Harrington signed.
Therefore, reviewing the Clarified Statement of Questions as discussed on July 17,
2006 and July 24, 2006, it appears to the Court that the issues that remain relate to whether
the subdivision uses the least areas of roadway, sewer, water and utility lines (§410.2);
whether the proposed cul‐de‐sac street is allowed (§420.6); whether the proposed
stormwater drainage system will function adequately as a drainage system; whether the
subdivision is planned in reasonable conformity to existing topography in order to
minimize grading, cut and fill (§480.1); and (to the extent that the hortatory language in
§410 regarding the Town Plan has any regulatory effect), whether the development is
“clustered” so as to preserve natural features such as forests, meadows and ridgelines.
(§410 and p. 48 of the Town Plan).
Accordingly, the motion to convert the document resulting from the mediation to
a court order is DENIED as to the issues raised in the Harrington clarified statement of
questions, other than those related to appropriate landscaping, screening, and preservation
of existing trees or existing cover, including the planting of trees. To the extent that facts
are in dispute as to those remaining questions, a hearing on the merits of those questions
has been scheduled for August 31, 2006,2 at the Rutland District Court, beginning at 9:30
2 At the July 24, 2006 conference, the Court had set August 15, 2006, by agreement of the parties, as the date for the hearing of the remaining issues raised by Appellant Harrington. On July 27, 2006, however, the Court received Attorney Lorentz’ letter that her witness will not be available from August 10 through August 21, 2006. Accordingly, the next available date in the Court’s schedule, Thursday, August 31, 2006, has been set instead for the hearing at the Rutland District Court. (See enclosed notice.)
5 a.m. (See enclosed notice). Please arrive at the Court by 9:00 a.m. to mark all exhibits and
determine whether there will be any objection to their admission at trial, in advance of the
commencement of the hearing. As in all de novo hearings before this Court, the Applicant
should be prepared to begin the hearing with a brief presentation of the application to the
Court, and a fuller presentation of the Applicant’s evidence on the contested issues.
The parties shall submit any trial memoranda, written legal argument and requests
for findings so that they are received at the Environmental Court mailing address on or
before August 21, 2006. The parties will be given the opportunity to make their responses
to those filings orally on the record at the hearing, so that the Court may be able to make
findings and to rule on this matter on the record of that hearing, if at all possible.
Done at Berlin, Vermont, this 31st day of July, 2006.
_________________________________________________ Merideth Wright Environmental Judge