1 STATE OF VERMONT

ENVIRONMENTAL COURT

} City of Burlington, } Plaintiff, } } v. } Docket No. 155-8-09 Vtec } Diana L. and Ronald N. Charboneau, } Defendants. } }

Decision and Order on Cross-Motions for Summary Jud gment This case is an enforcement proceeding brought unde r 24 V.S.A. §§ 4451 and 4452 by Plaintiff City of Burlington against Defend ants Diana L. and Ronald N. Charboneau (Defendants) for alleged violations of t he City of Burlington Comprehensive Development Ordinance (Ordinance) at property located at 66 Village Green. Plaintiff City is represented by Kimberlee J. Sturtevant, Esq.; Defendants are now represented by Marc E. Weiner, Esq. The complaint that instituted this enforcement acti on was served on Defendants on August 11, 2009. Defendants did not answer the c omplaint within twenty days of service, as required by V.R.C.P. 12(a)(1)(A), and th erefore the City moved for default. On November 5, 2009, this Court granted the City’s m otion for default judgment. 1 The Court’s November 5 order stated that “[i]f Defendan ts have transferred the property, they may move to vacate this order and should be pr epared to file proof that the

1 An affidavit submitted in connection with the moti on for default judgment revealed that Defendants had been represented in prior prope rty transactions related to 66 Village Green property by Attorney Weiner. Although no answer had been filed and no appearance was entered on behalf of Defendants at t hat time by, the Court provided Attorney Weiner with a courtesy copy of the default order.2

property is owned by others.” After Defendants fil ed proof that a contract and deed had been executed in 1996, which purportedly transfe rred ownership of the 66 Village Green property to a Mr. John C. Kirby, the Court gra nted Defendants’ motion to set aside the entry of default and reopened this enforc ement proceeding. The parties have now each moved for summary judgmen t. When “both parties move for summary judgment, each is entitled to the b enefit of all reasonable doubts and inferences when the opposing party's motion is bein g judged.” City of Burlington v. Fairpoint Commc’ns, Inc. , 2009 VT 59, ¶ 5 (citing Toys, Inc. v. F.M. Burlingto n Co. , 155 Vt. 44, 48, 582 A.2d 123, 125 (1990)). In its motion, Plaintiff City asks the Court to esta blish the existence of the violations, arguing that Defendants were the “record owners” of the 66 Village Green property at the time of the violations and that bec ause they did not appeal the Notices

of Violation the violations became final. Defendan ts counter by asking the Court to dismiss the enforcement proceeding, arguing that the y are not responsible for the violations as they “did not control the property, oc cupy the property, [or] permit[] or authorize anyone to use the property.” Defendants’ Motion for Summary Judgment, at 2–3 (Feb. 8, 2010). Defendants also request that Jo hn C. Kirby be joined as a necessary party, although they have not sought to interplead h im under V.R.C.P. 22 and

V.R.E.C.P. 3. Facts stated in this decision are undisputed unless otherwise noted. In responding to Defendants’ Statement of Undisputed M aterial Facts, the City agreed that facts 1, 2, 3, 6, and 7 were “undisputed,” but qualified its response regarding facts 4, 5, 8, and 9. As to facts 4, 5, 8, and 9, the City stated t hat those facts were undisputed “[f]or purposes of responding to the pending motions [for summary judgment] in this matter only and without prejudice to the City’s ability to dispute this purported fact at trial.” See City’s Response to Defendants’ Statement of Und isputed Material Facts (City’s3

Response to Defendants’ SOF), ¶¶ 4, 5, 8, 9. The “undi sputed” facts subject to this disclaimer are specifically noted in this decision. Despite the City’s disclaimer, under V.R.C.P. 56, in response to Defendants’ statement of undisputed material facts, the City was required to file “a separate, short,

and concise statement of the material facts as to w hich it is contended that there exists a genuine issue to be tried.” V.R.C.P. 56(c)(2). R ule 56(c)(2) provides that all of the facts in the moving party’s statement “will be deemed to be admitted unless controverted by the statement required to be served by the opposing party.” Id . Thus, Rule 56 does not provide for a party to state that certain facts are “undisputed” for purposes of summary judgment while still reserving the right to “disput e” them at trial. Rather, the City must either admit that the stated fact is “undisputed,” or it must dispute the fact and “contend[] that there exists a genuine issue to be tried” as to those facts. If the City does contend that such facts are in dispute, it “may not rest upon mere allegations or denials of the adverse party's pleading, but must set forth specific facts showing there is a genuine issue through affidavits.” Nature Conserva ncy v. Cantin , No. 2007-323, slip op. at 3 (Vt. Apr. 2009) (unpublished mem.) (quoting V. R.C.P. 56(e)). Rule 56 requires such supporting affidavits to “set forth such facts as w ould be admissible in evidence.” V.R.C.P. 56(e).

Factual and Procedural History Defendants are the former owners of a parcel of pro perty located at 66 Village Green in the City of Burlington. Defendant Ronald Charboneau acquired an ownership interest in the property in 1983, and in 1993 convey ed the property to the joint ownership of himself and his wife Diane. See Warra nty Deed, at 1 (Apr. 5, 1996). On April 5, 1996, Defendants entered into a “Contrac t for Deed” with John C. Kirby, in which Defendants “agree[d] to sell, convey , transfer, assign, and deliver” the 66 Village Green property to John C. Kirby. Contra ct for Deed, at 1, ¶ 1. Under the4

Contract for Deed, title to the property remained in Defendants’ names until the full purchase price was paid and the contract was fully complied with. Despite this delay in the transfer of title, the contract provided that Jo hn C. Kirby was immediately “entitled to exclusive use and possession of the [property] i n the same manner, and to the same

extent, as he would have had he received title” on t he day on which the Contract for

Deed was executed. Id . at 4, ¶ 5. On the same day, April 5, 1996, Defendants also execu ted a Warranty Deed conveying the property to John C. Kirby. 2 Under the terms of the Contract for Deed, the Warranty Deed was to be held in escrow until “proof of payment in full” was delivered to the escrow agent, at which time the Warranty Deed was to be delivered by the escrow agent to John C. Kirby. Id . at 2, 4, ¶¶ 3, 8. The contract appointed Attorney Marc E. Weiner, who is representing Defendants in th e present proceeding, as escrow agent for the transaction. Id . at 4, ¶ 8. After the parties entered into the Contract for Dee d, Defendants state that John C. Kirby “took possession of the property,” but that “[t]itle remained in [their] names until John Kirby was able to refinance the property in his own name.” Charboneau Aff. ¶ 4. For the purposes of the pending motions, the C ity does not dispute that, pursuant to the terms of the Contract for Deed, John C. Kirby took control of the property on April 5, 1996, nor does the City dispute that, from Ap ril 5, 1996, to the present, “Defendants were not in control of the [66 Village Green] property” and have not “exercised any ownership rights in the property wha tsoever.” Defendants’ Statement of Undisputed Material Facts, at ¶¶ 4, 5 [hereinafter Defendants’ SOF].

2 Defendants also executed a Mortgage Deed on April 5, 1996, naming Defendants as mortgagors and John C. Kirby as mortgagee, as provid ed in ¶ 15 of the Contract for Deed, to “secure [John C. Kirby]’s interest” in the property. Contract for Deed, at 6, ¶ 16.5

As of April 18, 2003, John C. Kirby had complied with all conditions of the Contract for Deed, when he was able to pay off the m ortgage given by Defendants in 1996. Charboneau Aff. ¶ 5; see also Mortgage Deed and Discharge Document, at 4 (Apr. 18, 2003) (stating that John C. Kirby “does he reby release and discharge in full a certain mortgage from [Defendants] to John C. Kirby dated April 5, 1996”). Material facts are in dispute, or at least have not been prov ided to the Court, regarding the location of the original Warranty Deed after it was executed in 1996, including the circumstances of delivery of the original Warranty Deed to the escrow agent, its location as of 2003, or where and by whom the original deed w as eventually located in November of 2009, prior to its recording by John C. Kirby’s mother, Leah Racine, who is

also Diana L. Charboneau’s cousin. Charboneau Aff. ¶ 6 (Nov. 12, 2009). In May of 2007, more than eleven years after the War ranty Deed was signed, a City of Burlington Code Enforcement Officer inspect ed the property and discovered several Ordinance violations, including the existenc e of an unpermitted canvas storage structure and illegal parking and outdoor storage o n the property. Francis Aff. ¶ 2 (Aug. 4, 2009); see also City’s Complaint and Motion for Preliminary and Permanent Injunctive Relief, ¶ 6 (Aug. 4, 2009) [hereinafter Co mplaint]. During the inspection, the Code Enforcement Officer spoke to the tenant of the property, Jay Kirby, who said he would cure the violations within seven days. Franc is Aff. ¶ 2; Complaint, ¶ 2. The Code Enforcement Officer conducted two follow-up vi sits on May 31 and June 19, 2007; during both visits, the Officer observed that the Or dinance violations had not been cured. Francis Aff. ¶¶ 3, 4; Complaint, ¶¶ 7–8. On June 19, 2007, a formal Notice of Violation was s ent both by certified mail and by first class mail to Jay Kirby and to Defendant D iana Charboneau. Francis Aff. ¶ 5; Complaint, ¶ 9. The City has not provided a copy of this Notice of Violation or of the certified mail receipts, and has not stated to what address the Notice of Violation was mailed to the Charboneaus. The certified mail copy of the Notice of Violation mailed to6

Jay Kirby was received by him on June 26, 2007. Ma terial facts are in dispute as to whether the first-class mail copy of the Notice of Violation mailed to Defendant Diana Charboneau was received by her; however, the certif ied mail copy was not claimed by her. Francis Aff. ¶ 5; Complaint, ¶ 9. No appeal w as filed from the 2007 Notice of Violation, and it became final at least as to Jay Ki rby. 24 V.S.A. §4472(d). A second Notice of Violation was sent both by certi fied mail and by first class mail to Defendants on August 5, 2008. The City has not provided a copy of this Notice of Violation or of the certified mail receipt, and has not stated to what address this

Notice of Violation was mailed. The certified mail copy was claimed on August 27, 2008, but material facts have not been provided to show who signed for the certified

mail. Id . ¶ 11. No appeal was filed from the 2008 Notice of Violation, and it may have

become final as to the existence of the violations, depending on the circumstances of notice of it to Defendants. 24 V.S.A. §4472(d); se e also, e.g, Town of Randolph v. Estate

of White , 166 Vt. 280, 283 (1997) (stating that “[a]n element ary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportuni ty to present their objections” (quoting Mullane v. Cent. Hanover Bank & Trust Co. , 339 U.S. 306, 314 (1950))). Defendants’ answer suggests that Defendants became aware of both Notices of Violation at some time, as they admit as to both Not ices of Violation that they “ignored the notices of violation as they had conveyed this property to John Kirby years before and[,] to the best of their knowledge, had no legal i nterest in the premises, including the right to enter [onto the property] or abate any vio lations.” Defendants’ Answer to Complaint, at 2, ¶¶ 3 (Nov. 9, 2009) [hereinafter Ans wer]. For the purposes of the pending motions, the City does not dispute the fact that “[t]here is no evidence that Defendants participated in or contributed to any of the violations set forth in Plaintiff’s complaint.” Defendants’ SOF, at ¶ 8.7

As of August 4, 2009, the date on which the most rec ent inspection of the property occurred, the Ordinance violations regardin g the canvas storage structure and the exterior storage remained in existence on the p roperty. Francis Aff. ¶ 19; Complaint, ¶ 13. On August 4, 2009, Plaintiff City fi led the complaint in this enforcement proceeding, asking the Court to order th e violations to be corrected, pursuant to 24 V.S.A. § 4452, and asking for a fine to be imposed on Defendants, pursuant to 24 V.S.A. § 4451. 3 After their motion to vacate the entry of default h ad been granted, Defendants filed their answer to the complaint on November 9, 2 009. As one of their affirmative defenses, Defendants stated that “[b]ecause [they] d id not create the zoning violations . . . and because [they] have no legal r ight to enter upon the lands and premises . . . they cannot abate, remove or correct the violations which are set forth in Plaintiff’s complaint.” Answer, at 2, ¶ 10. Also o n November 9, 2009, the 1996 Warranty Deed was recorded in the City’s land recor ds by John C. Kirby’s mother.

Charboneau Aff. ¶ 7.

Effect of Defendants’ Execution of the 1996 Deed an d Failure to Record In its motion for summary judgment, Plaintiff City a sks the Court to establish the existence of the Ordinance violations, arguing that Defendants were the “record owners” of the 66 Village Green property until Nove mber 9, 2009, and that, because they did not appeal the Notices of Violation, the ex istence of the violations has become

final and cannot be contested in this enforcement a ction. In their cross-motion,

Defendants ask this Court to dismiss the enforcemen t proceeding because they “did not

3 See 24 V.S.A. § 4451 (authorizing the imposition o f up to $100 per violation of a zoning bylaw, and establishing that each day that such a vi olation continues is a separate offense); id . § 4452 (authorizing municipalities to bring an en forcement action in environmental court “to prevent, restrain, correct, or abate” a violation of a zoning ordinance).8

control the property, occupy the property, permit, or authorize anyone to use the property” after April 5, 1996, and therefore cannot b e held liable for violations that occurred on the property after that date. Although Plaintiff City acknowledges that Defendant s executed both the Contract for Deed and the Warranty Deed in 1996, wh ich purportedly transferred the property to John C. Kirby, it argues that Defendant s are nevertheless liable because they were the “owners of record” of the property until t he Warranty Deed was actually recorded in November 2009. In effect, the City is a sking the Court to hold that if the purchaser of property fails to record a deed, the se llers remain responsible as “owners” of the property for any zoning violations that took place on the property prior to

recordation. Contrary to the City’s theory, however, an unrecorded deed still operates to transfer the seller’s ownership in the property to the buyer. See, e.g., In re Galvin , 120 B.R. 767, 770 (Bankr. D. Vt. 1990) (stating that the “failure to record under [the recording statute] still operates to pass the assignor's inte rest to the assignee”); Duhamel v. Donnelly , No. 207-227, slip op. at 2 (Vt. Dec. 2007) (unpub lished mem.) (holding that a

failure to record, in and of itself, did not affect the transfer of ownership from the seller to the buyer); Spaulding v. H. E. Fletcher Co. , 124 Vt. 318, 323 (1964) (“Even if not recorded an assignment operates to pass the assigno r's interest to the assignee.”). 4 Therefore, if and when Defendants transferred owners hip of the property to John C. Kirby through a validly executed (albeit unrecor ded) deed, they no longer had an

4 See also In re Estate of Deschenes , 818 A.2d 1026, 1030 (Me. 2003) (“The want of recor d of a deed does not render the instrument void.” (qu oting Gatchell v. Gatchell , 143 A. 169, 170 (1928))); 66 Am. Jur. 2d Records and Record ing Laws § 136 (2010) (stating that “[s]ince recording is required for the protection o f third persons, the recording statutes do not change the rule that an unrecorded deed, mort gage, lease, or other instrument affecting the title to land is valid as between the parties thereto”); id . § 82 (stating that recording statutes “give no substantive rights in t hemselves”).9

interest in the property and they cannot be held li able for zoning violations that occurred after the transfer of ownership. See, e.g. , Smith v. Monmaney , 127 Vt. 585, 592–93 (1969) (“Following a transfer of ownership a nd possession of real estate to a vendee without reservation, a vendor of realty is in no position to control the use

thereof” and the “vendor divests himself of title a nd all right of possession or of reentry for repairs or for any other purpose.”). If owners hip was transferred from Defendants to John C. Kirby when the deed was signed in 1996, o r when the contract was fulfilled in 2003, or at any time prior to the Notices of Viol ation, then Defendants cannot be held responsible for the violations under the Ordinance unless they “knowingly” participated in the violations, as provided in § 2.7 .6 of the Ordinance, discussed further

below.

However, the materials submitted in connection with the parties’ motions fail to establish the material fact of when ownership of th e property was considered to be transferred from Defendants to John C. Kirby throug h actual or imputed “delivery” of a validly executed deed. It is well-settled under Ve rmont law that a “deed does not take effect until it is delivered.” Spero v. Bove , 116 Vt. 76, 86 (1950). 5 In order “[t]o constitute a delivery of a deed the grantor must pa rt with the custody and control of the instrument, permanently, with the intention of having it take effect as a transfer of the title, and must part with his right to the instrumen t as well as with the possession.” Rich v. Wry , 110 Vt. 307, 307 (1939) (citing Elmore v. Marks , 39 Vt. 538, 541 (1867);

Walsh's Adm'x v. Vt. Mutual Fire Ins. Co. , 54 Vt. 351, 360 (1882)). But although “delivery is essential to the validity of a deed, it is not necessary that there should be an actual manual delivery” fro m seller to buyer. Id . Delivery is

5 See also Fisher v. Poole , 142 Vt. 162, 167 (1982) (stating that a deed does not take effect until it has been delivered to the grantee); 23 Am. Jur. 2d Deeds § 103 (2010) (“[I]t is the universal rule . . . that a deed, to be operative as a transfer of the ownership of land or an interest or estate therein, must be delivered; it is delivery that gives the instrument force and effect.”).10

sufficient, absent a manual delivery from seller to buyer, if the deed “is so disposed of as to evince clearly the intention of the parties t hat it should take effect as a conveyance.” Id . (citing Orr v. Clark , 62 Vt. 136, 146 (1890); Gorham's Adm'r v.

Meacham's Adm'r , 63 Vt. 231, 233 (1891)); see also Dwinell v. Bliss , 58 Vt. 353, 254 (1886) (“Delivery may either be actual,—that is, by doing s omething and saying nothing; or verbal,—that is, by saying something and doing nothi ng; or it may be both.” (citation and quotations omitted)). For example, delivery of the deed by the seller to a third party in escrow, who will then deliver the deed to the buyer, can constit ute delivery as long as the seller intended for that action to operate as a conveyance . See, e.g., 23 Am. Jur. 2d Deeds § 119 (“The delivery of a deed to a third person wi th instructions to pass it on to the grantee, and without any reservation by the grantor of a right to recall it, is sufficient in law and effects a complete transfer of the title to the property.”). However, if a deed is deposited with a third person in escrow to be deliv ered only after the satisfaction or performance of certain conditions, then the deed wil l not take effect until such conditions have been fulfilled. See Dunlevy v. Fen ton , 80 Vt. 505, 505 (1908) (“When a deed is deposited with a third person, to be deliver ed to the grantee only upon the performance of some condition precedent, and the dep ositary delivers it without the performance of the condition, there is no delivery i n law, and the deed is without effect.” (citation omitted)); 23 Am. Jur. 2d Deeds § 119 (“When a deed is placed in the hands of a third person to hold until a certain act is performed, no title passes until that act is performed.”). Upon the fulfillment of all conditions, however, it r emains unsettled under Vermont law whether such a deed becomes operative o nly upon actual delivery by the escrow agent to the grantee, or whether it automatic ally takes effect upon the fulfillment of all conditions. See 28 Am. Jur. 2d Escrow § 119 (“Although some

authorities hold that an instrument held in escrow, such as a deed, does not take effect11

and transfer title until it is delivered to the gra ntee or obligee, others hold that upon . . . performance of the condition upon which the deliver y must be made by the depositary to the grantee or obligee, the title to the instrume nt ipso facto vests in the grantee or obligee without an actual delivery.”). In the present case, the 1996 Contract for Deed stat es that “[u]pon payment of the purchase price . . . and upon the full and complete performance of all of the terms and conditions herein, SELLER shall, pursuant to the term s of paragraph 8 herein, deliver to the BUYER a good and sufficient Warranty Deed conve ying the [property] . . . .” Contract for Deed, at 2, ¶ 3. Paragraph 8 of the con tract, which spells out the precise terms for delivery of the deed, states that the warr anty deed “shall be held in escrow by Marc E. Weiner, as escrow agent, until such time as p roof of payment in full . . . has been delivered to said escrow agent,” at which time he was to deliver the deed to John C. Kirby. Id . at 4, ¶ 8. According to the terms of the Contract for Deed, therefore, the method of delivery was established. However, materi al facts have not been provided regarding whether the original warranty deed was re linquished by Defendants and held by the escrow agent as of its signing in 1996, or regarding what, if anything,

occurred as of 2003 when the contract’s conditions were fulfilled, or where the original warranty deed was located at that time. The partie s do not dispute the fact that, as of 2003, the original deed was not recorded. Charbonea u Aff. ¶ 5; see also Answer, at 2, ¶ 5 (“In connection with a refinance by John Kirby, the title was searched and Mr. Kirby’s attorney found the original deed was never recorded.”). It was not until after

the current enforcement action was instituted that the original deed was “located and delivered to John Kirby’s mother Leah Racine,” who r ecorded the deed on November 9,

2009. Charboneau Aff. ¶¶ 6, 7.

Therefore, as to the issue of when the 1996 deed too k effect, summary judgment must be denied at the present time as material fact s are in dispute, or at least have not been provided to the Court, as to when the “delivery ” of the deed was accomplished.12

The parties will be given an opportunity to present further affidavits and legal

memoranda on this issue.

Whether Charboneaus are Proper Defendants under the Ordinance Regardless of when the deed to the 66 Village Green property was in fact transferred to John C. Kirby, the City may only main tain this action against Defendants if they are proper defendants under the Ordinance.

Two sections of the ordinance are relevant to the t ask of determining those who may be held responsible for violations of the Ordin ance. First, the “General Provisions”

section of the Ordinance states: Except as otherwise provided in this ordinance, no p erson may use or occupy any land or buildings or authorize or permit the use or occupancy of land or buildings under his or her control except in accordance with the applicable provisions of this ordinance. For purpos es of this section, the “use” or “occupancy” of a building or land relates to anything and everything that is done to, on, or in that building o r land.

Ordinance § 1.1.7 (emphasis added). Under this sec tion, persons who control land or buildings must comply with the Ordinance. However, control of land or buildings is not necessa rily required to hold a person responsible for an Ordinance violation. Rat her, § 2.7.6 of the Ordinance, which falls under the “Enforcement” chapter, delineates th ose persons who can be held responsible for violations of the provisions of the Ordinance: The owner, tenant, or occupant of any structure or l and or part thereof who participates in, assists, directs, creates, or main tains any situation that is contrary to the requirements of this ordinance, a nd any architect, builder, contractor, agent, or other person who knowin gly participates in, assists, directs, creates, or maintains any situation that is contrary to the requirements of this ordinance, may be held responsi ble for the violation and suffer the penalties and be subject to the reme dies herein provided.13

Ordinance § 2.7.6. 6 Under this section, an owner (or tenant or occupan t) of property cannot be held responsible for a violation of the O rdinance unless that person “participates in, assists, directs, creates, or maintai ns” a situation that violates the Ordinance. In addition, any person other than an ow ner (or tenant or occupant) must “knowingly” participate in, assist, direct, create or maintain a violation in order to be held responsible for that violation. If the City c annot show that Defendants fall within either portion of § 2.7.6, Defendants cannot be held responsible for the violations. For the purposes of the present motions, the City d oes not dispute that, from April 5, 1996, to the present, “Defendants were not i n control of the [66 Village Green] property” and have not “exercised any ownership rig hts in the property whatsoever.” Defendants’ SOF, at ¶¶ 4, 5. The City also does not d ispute, for the purposes of the present motions, that “[t]here is no evidence that D efendants participated in or contributed to any of the violations set forth in P laintiff’s complaint.” Defendants’ SOF,

at ¶ 8. Because each party is “entitled to the benefit of a ll reasonable doubts and inferences when the opposing party's motion [for su mmary judgment] is being judged,” Fairpoint Commc’ns , 2009 VT 59, ¶ 5, and because the City has attempted to “reserve the right to contest these purported facts at trial ,” the Court will give the City ten days to comply with V.R.C.P. 56(c) and (e) by either com ing forward with affidavits or other evidence to dispute those facts, or by stating that such facts are indeed undisputed. If it is undisputed that Defendants did not participate i n, assist, direct, create, or maintain any violation on the property, which is required und er the first portion of § 2.7.6 to hold them responsible for a violation even if they still had an ownership interest in the

6 Although the parties provided the Court with § 1.1 .7 of the Ordinance, they only provided a portion of § 2.7.6. The complete text o f § 2.7.6 is found at: http://www.ci.burlington.vt.us/planning/zoning/zn_o rdinance/burlington_vermont_zo ning_ordinance_20090421.pdf. The parties have not suggested that any earlier version of the zoning ordinance is applicable to the presen t case.14

property, then summary judgment will be entered in f avor of Defendants. Similarly, under the second portion of § 2.7.6, if it is undisp uted that the deed was “delivered” in 2003 when the contract conditions were fulfilled by John C. Kirby, or was “delivered” at any time prior to the Notices of Violation, then De fendants were no longer even the record owners of the property. As the City does no t assert that they “knowingly” participated in, assisted, directed, created, or mainta ined any violation on the property, which is required to hold them responsible for a vi olation under the second portion of § 2.7.6, then summary judgment will be entered in fa vor of Defendants. Accordingly, on or before April 23, 2010, the City may provide affidavits or evidence in support of its contesting of any of Def endants’ undisputed facts; otherwise, summary judgment will be entered in favor of Defend ants effective on April 26, 2010. If

this matter is not concluded on that basis, then on or before May 3, 2010, Defendants may provide any additional affidavits or evidence p ertaining to the issue of “delivery” of the deed, and may submit any additional memorandu m regarding actual or imputed delivery of the deed, and on or before May 13, 2010, t he City may submit any reply

memorandum on that issue.

Done at Berlin, Vermont, this 13 th day of April, 2010.

________________________________________________ _ Merideth Wright Environmental Judge