In re: Eustance Act 250 Jurisdictional Opinion #2-231, 2007-156

9:30 a.m.

This case presents a classic Vermont tension: balancing the rights of private landowners trying to earn a living by farming their land with the rights of neighboring landowners who bought their property to enjoy the neighborhood’s peace and tranquility. Appellants Robert and Lourdes Eustance bought a forty-seven-acre lot in the Town of Winhall within a residential subdivision subject to Act 250 conditions that limit development. The Eustances then cleared eight acres of land for pasture and created an alpaca farm with barns, related facilities, and a limited number of public events each year. Several years later, the owners of a vacation home neighboring the farm complained to the District 2 Environmental Commission that the farm was noncompliant with the subdivision’s Act 250 permit. Following a hearing, the Commission found that the Eustances’ property was subject to Act 250 amendment jurisdiction, notwithstanding Act 250’s general farming exemption. The Environmental Court affirmed, and the Eustances filed this appeal. The Eustances argue that Act 250’s intent is to protect Vermont’s environment from development, not to prohibit diversified farming operations.

Larkin v. Marceau, 2007-176

10:00 a.m.

Plaintiff, John Larkin, purchased land from the defendant on which he has planned a 122-unit residential development near South Burlington. Defendant, Edward Marceau, operates an apple orchard on adjacent land. This case arises out of the defendant’s use of pesticides on his property. Even when done in accordance with accepted agricultural practices by licensed applicators, this results in detectable levels of pesticides drifting onto plaintiff’s property. Plaintiff filed an action in trespass against the defendant, claiming that defendant’s activities have prevented him from occupying a 250-foot strip of land on the Larkin-Marceau boundary line. The Chittenden Superior Court held that plaintiff’s suit was better characterized as a nuisance action, and dismissed the claim under the authority of the Right to Farm Act, which creates a rebuttable presumption prohibiting nuisance claims against agricultural operations. On appeal, this Court is asked to address the question of whether pesticide drift constitutes trespass, not nuisance, and is therefore not barred by the Right to Farm Act.

State v. Mandy Cram, 2007-054

11:00 a.m.

A homeowner in rural Salisbury, Vermont exited his bathroom one morning and discovered a stranger, Ms. Cram, standing in his living room. She advised the startled homeowner that her car was overheating and she wanted to call her husband for help. The homeowner handed Ms. Cram a phone, she placed a call, and then she promptly drove off. The home had recently been burglarized, so the owner immediately called the police. A trooper soon located Ms. Cram and discovered in her possession a photo identification card cracked and bent in a manner consistent with being used to pry open doors. Ms. Cram admitted to entering the home in order to use the phone, but only after her knocks went unanswered. Ms. Cram was charged with Unlawful Trespass, and entered a conditional plea of guilty, reserving the right to appeal from the denial of her motion to dismiss. Criminal trespass is a specific intent crime, requiring the intruder to know that he or she is not licensed or privileged to enter the home. On appeal, Ms. Cram argues that there is no evidence in the record showing that she knew she was neither licensed nor privileged to enter the dwelling.

Borden v. Hoffman, 2006-345

11:30 a.m.

Nutraloaf is a food product made of cubed whole-wheat bread, nondairy cheese, raw carrots, spinach, seedless raisins, great northern beans, vegetable oil, tomato paste, powdered milk, and potato flakes.  The Vermont Department of Corrections places inmates who misuse food, utensils, or bodily waste on a diet of “Special Management Meals,” which consist of Nutraloaf and water.  Mr. Borden and two other inmates filed a class-action suit in Windsor County Superior Court claiming that the Nutraloaf diet is “punishment” and therefore the DOC must afford inmates procedural due process before feeding them Nutraloaf.  The superior court disagreed, and the issue on appeal is whether feeding prisoners Nutraloaf constitutes “punishment.”  The appellants contend that the superior court misinterpreted Conway v. Cummings, 161 Vt. 113 (1993), which outlines the test to determine what constitutes punishment.

State v. Pitts, 2007-077, 2007-219

2:00 p.m.

In December 2005, police officers approached Yosef Pitts and asked to speak with him. The officers suspected that Mr. Pitts was part of a drug distribution ring. One of the officers first asked Mr. Pitts for identification, but he replied that he did not have any, explaining that he was from New York and had been living with his sister Sequoya Pitts. The officer next asked Mr. Pitts if had any weapons on him. Mr. Pitts replied that he had a knife and indicated its location. In the process of securing the knife, the officer patted down Mr. Pitts’ pockets and found a large wad of cash. The officer then asked Mr. Pitts if he had any drugs; Mr. Pitts replied that he had a small amount of marijuana. Thereafter, the officer asked Mr. Pitts to remain with the other officer in the police cruiser while he confirmed Mr. Pitts’ identity with his sister. The officer went to the home and knocked on the door. Ms. Pitts answered the door and allowed the officer to enter, whereupon the officer saw a marijuana “roach” in the living room. He informed Ms. Pitts that the marijuana gave him probable cause to search the apartment; he gave her the choice to either consent to the search immediately or wait for him to get a search warrant. Ms. Pitts consented to a search, and police discovered additional drugs and drug paraphernalia. Mr. and Ms. Pitts were both charged and convicted of possession of cocaine and marijuana. The following constitutional questions are presented on appeal: (1) whether Ms. Pitts has standing to challenge the stop and search of her brother; (2) whether the police officers had a reasonable suspicion that Mr. Pitts had engaged in criminal conduct; (3) whether Mr. Pitts’ consent to the search of his person was voluntary; (4) whether the physical evidence retrieved from Ms. Pitts’ apartment was the fruit of an illegal stop and search of her brother; and (5) whether Ms. Pitts’ consent to the search of her apartment was voluntary.

Jensen v. Cashin, 2007-255

2:30 p.m.

This case arises out of a tragic automobile accident. Julie Jensen purchased a 1994 Toyota Supra for her son Charles (age 14) to restore. On August 24, 2004, Charles got his mother’s permission to allow his friend Norman (age 16) to take him for a drive in the car. Charles did not have a driver’s license, but Norman had a junior operator’s license. While out on the drive, Norman stopped and picked up a friend, Philip. Charles later took over as driver. While driving, Charles lost control of the car and crashed into rock ledges lining the side of the road. Norman and Philip were killed instantly. Charles, who was wearing his seatbelt, did not suffer any life-threatening injuries. Anticipating a civil suit against them, Charles and his mother filed an action in the United States District Court for the District of Vermont seeking a declaratory judgment that they are not liable for the deaths, or that their liability is offset by comparative or contributory negligence. The administrators of the decedents’ estates filed counterclaims seeking compensatory and punitive damages. The district court certified two unresolved questions of state law to the Vermont Supreme Court: (1) whether Vermont’s Wrongful Death Act, 14 V.S.A. § 1492, allows for punitive damages; and (2) whether Vermont’s Survival Statute, 14 V.S.A. § 1452, does.