STATE OF VERMONT

ENVIRONMENTAL COURT

Secretary, Vermont 

Agency of Natural 

Resources, Plaintiff,

v.

Thomas Doran, 

Defendant.

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Docket No. 279-12-02 

Vtec

Decision and Order on Petition for Contempt

The Secretary of the Agency of Natural Resources is represented by 

Gary Kessler, Esq.; Defendant Thomas Doran represented himself. On 

May 7, 2004, the Court held an evidentiary hearing on the Agency's 

petition to hold Defendant in contempt for failure to carry out the 

terms of a judgment order issued by the Court by default, after 

Defendant failed to file an answer to the Secretary's complaint for 

enforcement of an Administrative Order that became final. After a 

hearing on the record held on May 7, 2004, the Court finds and 

concludes as follows.

Procedural History

In March of 2002, the Agency issued an Administrative Order 

regarding Mr. Doran's property at 1165 Creek Road in Castleton. The 

Administrative Order was personally served on him on April 2, 2002. 

Mr. Doran did not1request a hearing on that administrative order, and 

it became final. Because no hearing was requested and the 

Administrative Order became final, in the present case this Court does 

not have jurisdiction to review or to change the Administrative Order 

in any way.

The Administrative Order required Mr. Doran to do three things: to pay 

a penalty of $3,000; to immediately cease all unlawful burning and 

disposal of solid waste; and within 60 days to " remove all illegally 

disposed solid waste to a certified facility and provide receipts to the 

Agency . . . that demonstrate that the materials were properly 

disposed." 
On December 2, 2002 the Agency served a summons and complaint 

on Mr. Doran, commencing the above-captioned case. This case is an 

enforcement action under 10 V.S.A. § 8014 for failing to comply with 

the final Administrative Order. The relief requested in this enforcement 

action was for Mr. Doran to remove all illegally disposed solid waste to 

a certified facility (and to provide receipts demonstrating that the 

materials were properly disposed), to pay the $3,000 penalty imposed 

by the Administrative Order, and " otherwise" to comply with the 

provisions of the Administrative Order and specified sections of the 

Vermont Air Pollution Control Regulations and Solid Waste 

Management Rules.

Mr. Doran did not file an answer, or otherwise appear in the 

enforcement action. The Agency of Natural Resources moved for a 

default judgment and the Court granted the Agency's motion for 

default judgment on March 14, 2003. The default judgment order was 

personally served on Mr. Doran in June 2003. In December of 2003, 

Mr. Doran informally requested that the Court set aside the default 

judgment order. The Court gave Mr. Doran time to file a memorandum 

in support of his request to set aside the default judgment, to explain 

why he had failed to file an answer to the complaint, and to file the 

answer. He did not do so, and his request to set aside the default 

judgment was therefore denied.

Therefore, the only matter now pending before the Court is the 

Agency's petition for contempt of that default judgment order.

Findings and Order

Mr. Doran owns and operates a roofing business at a location other 

than the property at issue in the present case. The property at issue in 

this case, at 1165 Creek Road in Castleton, now contains an existing 

garage and a large dumpster, into which Mr. Doran places construction 

and demolition debris from his roofing jobs. The dumpster is emptied 

periodically by a waste hauling company: Casella Waste Management. 

Behind the garage is a steep bank leading down to a lower elevation of 

land.

At the present time Mr. Doran continues to dump old slate shingles 

(removed during re-roofing jobs) on the ground at the site near the 

top of the bank; some of those shingles slide down the bank. Slate is 

quarried in the vicinity of Castleton, and Mr. Doran considers slate 

roofing shingles to be an indigenous rock material which is not illegal 

to dump on the ground. It is not clear whether Mr. Doran intends 
simply to dispose of these old slate shingles on the site, or to stockpile 

them there for later reuse for historic preservation roofing work or for 

sale of the slate pieces for other purposes.

In 1993, Mr. Doran had dumped construction and demolition debris at 

the site, including brick, cinderblock, old slate shingles, and old 

asphalt. He had burned construction and demolition debris on the site. 

Some of the dumped material and remains of the burned material had 

been dumped or had slid over the bank.

In connection with the 1993 event, Mr. Doran cooperated with the ANR 

environmental enforcement officer who came to the site. Mr. Doran 

agreed to remove the burn barrel and to remove the burned and 

dumped material, and did so. The ANR environmental enforcement 

officer at that time had estimated that a 30-cubic-yard roll-off 

container would be sufficient for removal of the material. Mr. Doran 

removed that quantity of material in connection with the 1993 event. 

That amount of removal cleaned up the site to the satisfaction of the 

ANR environmental enforcement officer at that time, although some 

inert brick and block was left on the site and was not removed. In 

connection with the 1993 event, the ANR environmental enforcement 

officers were not concerned about the brick and block material that 

remained at the site.

Mr. Doran installed the 22-cubic-yard dumpster at that location in 

1994; it has been used since that time for the disposal and removal of 

construction and demolition debris.

In December of 2001, an Environmental Enforcement Officer observed 

brick, mortar, slate and lumber material deposited on and over the 

steep bank.2

Mr. Doran may very well be eligible for Agency approval to allow the 

inert slate shingles and/or other masonry waste materials to remain in 

place on the site. This approval is called an > Insignificant Waste 

Management Event" approval and may be obtained by application to 

the ANR's Waste Management Division. Such an approval may require 

an inspection and some degree of work with an appropriately-sized 

backhoe to demonstrate what materials are in place on the site. If it is 

obtained, Mr. Doran may be approved not only to leave the inert 

materials on the property in conformance with the approval, but also 

to continue in the future his practice of placing old slate shingles on 

the property, either for disposal or stockpiling for reuse. However, 

without such approval he may not continue this practice, and under 
the default judgment order must remove the materials already placed 

there. As explained above, this Court has no jurisdiction to review or 

change the terms of the original administrative order that became 

final.

Based on the findings, conclusions, and reasoning of this decision, 

pursuant to 12 V.S.A. § § 121-123; V.R.C.P. 76; and the Court's 

inherent power of contempt to enforce its orders under 10 V.S.A. 

Chapter 201, it is hereby ORDERED and ADJUDGED that Respondent is 

found in contempt of the default judgment order issued in the 

underlying enforcement action under 10 V.S.A. § 8014 to enforce the 

final administrative order, in two respects: (1) in that he has not paid 

the $3,000 penalty imposed by that order and has not shown a 

present inability to pay, and (2) in that he has not applied for an " 

Insignificant Waste Management Event" approval to leave the 

materials in place and to continue placing old slate roofing tiles in that 

location nor has he removed the waste materials from that location.

The Secretary requested that this Court impose an additional penalty 

of $500 to recognize the Agency's additional costs of enforcing this 

order. However, because this was a civil contempt action, rather than 

merely an amendment of or addition to the enforcement action, the 

Court is restricted to a coercive sanction only. Accordingly, it is hereby 

ORDERED and ADJUDGED that on or before August 6, 2004, Mr. Doran 

shall comply with the default judgment order by either applying for an 

" Insignificant Waste Management Event" approval to leave the 

materials in place on the property or by removing the waste materials; 

and that on or before September 7, 2004, Mr. Doran shall comply with 

the default judgment order by paying the $3,000 penalty imposed by 

that order. Failure to comply with the deadlines imposed by this order 

will result in a coercive sanction of $25 per day for each day of 

noncompliance. The parties may agree to an alternate payment 

schedule, to an alternate payment amount, and to alternate deadlines, 

but should submit any such agreed changes to this order as a 

stipulation to amend this order, signed by both parties.

Any party wishing a separate V.R.C.P. 58 judgment order may propose 

one for the Court's signature so that it is received by the Court on or 

before July 14, 2004.

Done at Barre, Vermont, this 6th day of July, 2004.
____________________________

Merideth Wright 

Environmental Judge

Footnotes

1. 

 If Mr. Doran had requested a hearing as explained in that 

Administrative Order, that Administrative Order would have come 

before the Court, and the Court could have taken evidence on whether 

any of the material over the bank was illegally disposed or not, and on 

whether $3,000 or some other lesser amount (or no penalty at all) 

would have been a fair penalty amount.

2. 

 During the hearing, this witness, Mr. Urich, referred the Court to 

his “report;” however, although some of his photographs were 

admitted into evidence from that visit, no report was offered or 

admitted. 

STATE OF VERMONT

ENVIRONMENTAL COURT

Secretary, Vermont 

Agency of Natural 

Resources, Plaintiff,

v.

Thomas Doran, 

Defendant

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Docket No. 279-12-02 

Vtec 
Order on Pending Motions

The Secretary of the Agency of Natural Resources is represented by 

Gary Kessler, Esq.; Defendant Thomas Doran represents himself. 

Scheduling Order on Motion to Set Aside the Default Judgment

Mr. Doran filed another short letter with the Court on December 1, 

2003, enclosing his entry of appearance to represent himself (which 

itself contains handwritten note: A Being advised by an attorney at 

this time@ ); and moving to set aside the default judgment in this 

matter. It again did not appear from the face of the letter filed 

December 1, 2003, that Mr. Doran had sent a copy to Attorney 

Kessler, and we have just found out that Attorney Kessler was not sent 

a copy. This is the last time we will remind Mr. Doran that each party 

is required by the rules of procedure to send a copy of anything filed 

with the Court to the other parties in the case and that judges are not 

allowed to consider any communication from one party unless all the 

other parties have received copies of it. The Court staff faxed a copy of 

the December 1, 2003 letter to Attorney Kessler on February 2, 2004 

and a copy is enclosed with this order for his information (copy 

enclosed).

In the future, Mr. Doran= s failure to send the required copy of 

any document to Attorney Kessler may result in the denial of 

any request made in the underlying document, or in other 

V.R.C.P. 11 sanctions being considered.

We again repeat the procedural status of this matter to date. The 

Agency issued an Administrative Order regarding Mr. Doran in March 

2002, which was personally served on him on April 2, 2002. Mr. Doran 

did not request a hearing on that administrative order, and it became 

final. Because no hearing was requested and the Administrative Order 

became final, the Court cannot consider the merits of the original 

administrative order in this case. See 10 V.S.A. Chapter 201.

On December 2, 2002 the Agency served a summons and complaint 

on Mr. Doran for failing to comply with the final administrative order; 

that enforcement action is this present case, Docket Number 279-12-

02 Vtec. This is an enforcement action filed under 10 V.S.A. ' 8014, to 

enforce the final administrative order. Mr. Doran did not file an 

answer, or otherwise appear in the enforcement action, and has not 

done so to date. The Agency of Natural Resources moved for a default 

judgment and the Court granted the Agency= s motion for default 
judgment on March 14, 2003. The default judgment order was 

personally served on Mr. Doran in June 2003. The Agency then filed a 

petition for contempt in the enforcement action, which was set for 

hearing several times and postponed. We treated Mr. Doran= s July 

2003 letter as Mr. Doran= s entry of appearance on his own behalf for 

the purpose of avoiding a default of the contempt proceedings, and 

received his entry of appearance as an unrepresented party enclosed 

with his December 1, 2003 letter.

Until his December 1, 2003 letter, Mr. Doran had not moved to set 

aside the default judgment or to reopen the enforcement action. 

Default judgments are disfavored and the rules on reopening cases 

should be liberally construed in favor of defendants and the desirability 

of resolving litigation on the merits, see Desjarlais v. Gilman, 143 Vt. 

154, 158-59 (1983); Courtyard Partners v. Tanner, 157 Vt. 638, 638-

39 (1991). However, Mr. Doran= s > motion= to set aside the default 

judgment contains no answer to the complaint and no explanation of 

why he did not answer the complaint when it was served on him, and 

does not address the V.R.C.P. 60 (b) grounds for reopening a 

judgment. (Copy enclosed).

Accordingly, so that it is postmarked on or before Friday, February 13, 

2004, Mr. Doran may file a memorandum explaining the grounds for 

his motion, consistent with the rules. It must be addressed to the 

Environmental Court at the Barre address and a copy must be sent to 

Attorney Kessler at the same time. Attorney Kessler may file a 

responsive memorandum within the time provided by the rules and 

then the Court will rule on whether the default judgment should be set 

aside and the case reopened. If the case is reopened, we will schedule 

the hearing on the merits of the case to enforce the administrative 

order. If the case is not reopened we will schedule the hearing on the 

contempt petition for failure to comply with the default judgment.

Request for Jury Trial on the Contempt Petition

This is a separate issue from when and whether a jury trial may be 

required in a civil enforcement action, that is, if Mr. Doran had either 

requested a hearing on the administrative order (so that it would not 

have gone into effect as a final administrative order), or if he had 

answered the complaint in this action by the agency to enforce that 

final administrative order. We do not now address any issues 

regarding a jury trial in relation to either of those scenarios.
Rather, all that we have before us at this time (that is, until or unless 

the enforcement default judgment is reopened) is a civil contempt 

proceeding to require compliance with the default judgment order. 

There is no right to a jury trial in a civil contempt proceeding, as the 

sanctions that can be imposed are limited to those designed to compel 

compliance with an existing court order. See, International Union, 

United Mine Workers of America v. Bagwell, 512 U.S. 821, 826-27 

(1994). Nor is there any statutory right to a jury trial for civil 

contempt. 12 V.S.A. ' ' 121-123; compare V.R.Cr.P. 42(b) for criminal 

contempt. Accordingly, Defendant= s request for a jury trial on the civil 

contempt petition is DENIED.

Done at Barre, Vermont, this 4th day of February, 2004.

___________________

Merideth Wright 

Environmental Judge

STATE OF VERMONT

ENVIRONMENTAL COURT

In re: Appeal of James 

Goldsmith

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Docket No. 281-12-00 

Vtec

Decision and Order on Appellant= s Motions for Summary Judgment

Appellant James Goldsmith appealed from a decision of the 

Development Review Board (DRB) of the City of Burlington denying his 

request for a variance to construct a driveway and a parking area in 

the front yard of an existing duplex. Appellant is represented by Brian 

P. Hehir, Esq.; the City is represented by Kimberlee J. Sturtevant, Esq. 

Appellant posed seven questions in his Statement of Questions, of 

which Question 5 has been withdrawn. He has moved for summary 
judgment on Questions 1, 2 and 3 of the following: 1) whether the 

proposed driveway is a ' 5.1.9 accessory use1; 2) whether the 

proposed driveway falls within the exception to yard setback 

requirements under ' 5.3.6(g); 3) whether the proposed driveway is 

exempt from site plan review under ' 7.1.4; 4) whether the proposed 

driveway and parking are consistent with the intent of ' 10.1.1; 6) 

whether the proposed driveway requires a variance under ' 17.1.6; and 

7) whether the proposed driveway satisfies the applicable variance 

criteria.

The following facts are undisputed unless otherwise noted.

Appellant is the current owner of a rectangular parcel of property 

without frontage on a public street, in the Residential Low-Density 

zoning district. It has frontage on a private right-of-way located 

entirely on the neighboring property to the north. Appellant= s 

property contains a duplex residential building known as 408/410 

Colchester Avenue. 

A permit for construction of the duplex was issued in December, 1982 

to a previous landowner, at which time the private right-of-way was 

thought to be shared with the neighboring property. A survey in 1998 

revealed that the right-of-way is located on the neighbor= s property. 

The site plan approved in 1992 indicated a driveway on the northerly 

side of the Appellant= s property within the apparent thirteen-foot 

setback, providing access to a four-space parking area in the rear 

yard. The duplex was built, however, four feet from the surveyed 

location of the northerly property line, precluding access to the rear 

parking area without going onto the neighbor= s property. The duplex 

as built is within eight feet of the southerly property line, which also 

may preclude access to the rear yard on that side of the building. A 

mature screen of vegetation has grown up in front of Appellant= s 

property, between the property and the sidewalk, which screens the 

front yard from Colchester Avenue. 

A dispute arose between Appellant and the northerly neighbor 

regarding an agreement under which the Appellant and his tenants 

had had access to the rear parking area using the neighbor= s 

driveway. Appellant and his tenants have been parking on the street, 

and will need to park remotely during the winter parking ban. 

Appellant seeks to construct a gravel driveway/parking area in the 

front yard. At least some of this area is proposed to extend beyond 
Appellant= s property line towards Colchester Avenue and into the 

City= s property, although still located behind the vegetation screen. 

On October 5, 2000, Appellant submitted an application for A Variance 

for creation of parking area at front of property,@ including a sketch of 

the proposal. The variance was requested from two provisions of the 

Zoning Ordinance: ' 5.3.5 (25 foot setback from A major street,@

Table 5-D) and ' 10.1.18 (front yard parking setback).

Questions 1, 2, 3, and 4 of the Statement of Questions are not before 

the Court, as they were not before the DRB in the decision appealed 

from. Neither is Question 6 before the Court, as Appellant did not 

request a ruling from the Zoning Administrator as to whether a 

variance is required. Rather, Appellant applied for and was denied a 

variance. All that is before the Court at the present time is Question 7, 

the merits of the variance. Material facts are in dispute as to some 

aspects of the merits of the variance, and Appellant has not requested 

summary judgment on this issue. In particular, facts have not been 

presented as to when Appellant purchased the property, and whether 

Appellant or his predecessor has acquired any easement by 

prescription or by adverse possession over the northerly neighbor= s 

driveway.

Accordingly, based on the foregoing, it is hereby ORDERED and 

ADJUDGED that Appellant= s Motion for Summary Judgment on 

Questions 1, 2, and 3 is DENIED, because those questions, together 

with Questions 4 and 6, are not before the Court in this appeal, and 

those questions are hereby DISMISSED.

Based on the parties= memoranda, it appears that an application 

under some of the sections raised in the dismissed questions should be 

filed and ruled on before this Court should hear the merits of the 

variance. It is possible that such other application would render the 

variance unnecessary or moot. It is also possible that other civil 

litigation may be necessary to determine Appellant= s rights in the 

formerly-used driveway. Accordingly, we will place this appeal on 

inactive status and request that the parties report in writing by August 

30, 2001, regarding the status of this appeal, and whether they 

request a telephone conference, which can be scheduled for 

September 14, 2001.

Done at Barre, Vermont, this 7th day of August, 2001.
___________________

Merideth Wright 

Environmental Judge

Footnotes

1. 

 Though the City agrees with Appellant that the project is a § 

5.1.9 accessory use and may to some extent encroach on the front 

yard setback under § 5.3.6(g), the City maintains that these questions 

are not properly raised in this appeal because they were not before the 

DRB on the variance request.