Vermont Superior Court
Environmental Division
State of Vermont

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Linda C. Nordlund Dock et No. 42-3-10 Vtec

v. Elizabeth M. Van Nostrand; Elizabeth M. Van Nostran d 2007 Trust; Mark L. Van Nostrand and Nancy A. Van Nostrand
(private enforcement action of municipal zoning proceedings)
Title: Motions for Summary Judgment, (Filing Nos. 4 & 5)

Filed: May 28, 2010 and June 1, 2010

Filed By: James C. Foley, Jr., Attorney for Defenda nts Elizabeth M. Van
Nostrand and the Elizabeth M. Van Nostran d 2007 Trust, and Defendants Mark L. and Nancy A. Van Nostrand, repres enting themselves

Response in Opposition filed on 06/28/10 by Karl W. Neuse, Attorney for
Plaintiff Linda C. Nordlund

_x _ Granted ___ Denied ___ Other

Plaintiff Linda Nordlund filed this action under 24 V.S.A. § 4470(b) to enforce a judgment order of this Court. In respons e, Defendants Mark and Nancy Van Nostrand and Elizabeth Van Nostrand, both in he r personal capacity and in her capacity as trustee of the Elizabeth M. Van Nos trand 2007 Trust, have filed Answers, 1 Counterclaims, and motions for summary judgment as to all of Plaintiff’s claims against all Defendants. 2 Plaintiff has responded in opposition to both of the motions filed by Defendan ts and Elizabeth Van Nostrand, in both capacities, has replied in opposi tion. This Entry Order addresses Defendants’ respective claims that Plaint iff’s Complaint against them should be dismissed; a companion Entry Order addres ses Plaintiff’s separate
motion to dismiss Defendants’ counterclaims.

Factual Background

For the sole purpose of putting the pending motion s into context we recite the following facts, which we understand to be undisputed unless noted
otherwise:

1. Plaintiff, Linda Nordlund, owns property on Wes t Shore Road in Salisbury,
Vermont. Defendant Elizabeth Van Nostrand owns and resides on a 1.1± acre

1 Although Defendants are referred to collectively, we note here that Defendant Elizabeth Van Nostrand and Defendants Mark and Nancy Van Nostrand have separat e interests and, at times, separate defenses. We a ddress in this Entry Order all arguments relevant to the claims ra ised by Plaintiff in her Complaint.

2 Elizabeth Van Nostrand, in both her individual an d Trustee capacity, is represented in this enforcem ent proceeding by Attorney James C. Foley, Jr. Attorney Foley fil ed a motion for summary judgment on behalf of Mrs. Van Nostrand on May 28, 2010, seeking dismissal of all of Plaint iff’s claims against his client. On June 1, 2010, Mark and Nancy Van Nostrand, who represent themselves, filed their own summary judgment motion, seeking dismissal of all of Plaintiff’s claims against them. Each of Defendant s’ respective filings was supported by statements o f undisputed facts. By filings received June 25, 2010, Plaintif f responded to both sets of summary judgments motio ns and statements of undisputed facts.Nordlund v. Van Nostrand, et. al. , No. 42-3-10 Vtec (Entry Order on Defendants’ sj m otions)(07-07-10) Page 2 of 5.

parcel (the “front parcel”) immediately north of Pl aintiff’s property. Defendants Mark and Nancy Van Nostrand own and resi de on a 24± acre parcel (the “back parcel”) which is separated from West Shore R oad by Plaintiff’s parcel and the front parcel.

2. Both the front and back parcels were once owned jointly by Ronald and Elizabeth Van Nostrand. In September 2007, Ronald Van Nostrand conveyed his interest in the parcels to Elizabeth Van Nostrand. Elizabeth Van Nostrand transferred her interest in the front parcel to her self, as trustee of the Elizabeth M. Van Nostrand 2007 Trust, reserving to herself a life estate and a power of sale. In March of 2009, Mrs. Van Nostrand then conveyed all interests in the back parcel to Mark and Nancy Van Nostrand.

3. Prior superior court litigation, finalized in a n appeal to the Vermont Supreme Court, established that a right of way (the “Nordlund right of way”) exists between the back parcel and West Shore Road, thereby providing access for the benefit of the back parcel. This right of way crosses over both Plaintiff’s property and Mrs. Van Nostrand’s front parcel; where it crosses over Plaintiff’s property, it is no more than eight een feet wide. See Nordlund
v. Van Nostrand , No. 56-3-06 Ancv (Ad. Sup. Ct. Dec. 14, 2006) (Ka tz, J.),
aff’d ., No.2007-027, slip op. (Vt. Aug. 17, 2007) (unpub . mem.).

4. In 2004, Ronald and Elizabeth Van Nostrand appl ied for a zoning permit to construct a residence on the back parcel. The Zoni ng Administrator granted the permit, but the Town of Salisbury Development Revie w Board (“DRB”) reversed the granting of that permit application when Ms. Nordlu nd appealed, finding that access to the property did not comply with the 50-f oot minimum width requirement of the Town of Salisbury Zoning Regulat ions (“Regulations”). The Van Nostrands appealed the DRB determination to thi s Court.

5. In 2005, Ronald and Elizabeth Van Nostrand also applied for a variance to access the back parcel through the undersized Nordl und right of way. The DRB denied the variance and the Van Nostrands appealed to this Court. The right of way and permit appeals were consolidated for trial by this Court.

6. On appeal, this Court ruled that the building p ermit should be reinstated.
In re Van Nostrand , Nos. 209-11-04 & 101-5-05 Vtec, slip op. (Vt. Env tl. Ct. May 18, 2007) (Durkin, J.). Plaintiff appealed thi s ruling to the Vermont Supreme Court, which reversed that determination an d remanded the pending variance and permit applications to this Court. In re Van Nostrand , 2008 VT 77.

7. While these appeals were pending, Mark and Nanc y Van Nostrand applied for a zoning permit to construct their house on the back parcel and for approval of an alternate 50-foot wide right of way for the back parcel through the front parcel (the “Van Nostrand right of way”). The DRB approved this alternate right of way and building permit. 3

8. On remand of the consolidated zoning applicatio ns from the Supreme Court,
this Court conducted a trial and thereafter denied the Van Nostrands’ variance request, due to the undersized width of the Nordlun d right of way. Having denied the variance request, this Court concluded t hat it must also deny the 2004 zoning permit application that relied upon the Nordlund right of way. In
re Van Nostrand , Nos. 209-11-04 & 101-5-05 Vtec, slip op. (Vt. Env tl. Ct. Oct. 21, 2009) (Durkin, J.). Those determinations were not appealed by either party
and have therefore become final.

9. In support of Mark and Nancy Van Nostrand’s sec ond permit application, Elizabeth Van Nostrand conveyed to them an alternat e, fifty-foot-wide easement

3 The first zoning permit for construction was grant ed in 2007. Construction was not begun on the parc el and the permit lapsed after two years. A second zoning per mit was applied for and granted in 2009.Nordlund v. Van Nostrand, et. al. , No. 42-3-10 Vtec (Entry Order on Defendants’ sj m otions)(07-07-10) Page 3 of 5.

over her front parcel, to serve as an alternate acc ess for the back parcel. Defendants Mark and Nancy Van Nostrand have since c ompleted construction of a house on the back parcel. In the course of occupyi ng and using their new home, Mark and Nancy Van Nostrand and their invitees have used both rights of way over the Nordlund and Van Nostrand properties to ac cess their back parcel home.

10. Elizabeth Van Nostrand has on occasion travele d over Plaintiff’s property in the course of accessing her front parcel propert y. Mrs. Van Nostrand does not have a lawful right to access her property via Plaintiff’s property, having conveyed the right of way that partially travels ov er Plaintiff’s property to her son and daughter-in-law when she conveyed the b ack parcel to them.

11. On occasion, Elizabeth Van Nostrand has parked her vehicle in such a manner, and allowed her guests to park their vehicl es in such a manner, that the only available access to the back parcel is ove r the right of way that partially travels over Plaintiff’s property.

Discussion

Plaintiff Nordlund filed this enforcement action ag ainst all three named Defendants, premised upon the following: (a) the Oc tober 21, 2009 Judgment Order (“Order”) of this Court; (b) various permit d eterminations by the DRB relating to the back parcel; and (c) applicable pro visions of the Regulations. Plaintiff relies upon 24 V.S.A. § 4470(b) and V.R.E .C.P. 3(3) for the jurisdictional authority to prosecute her claims. Defendants have filed motions for summary judgment, challenging the juris dictional authority of all
of Plaintiff’s claims. For the reasons stated belo w, we GRANT Defendants’ summary judgment requests.

As has been often stated, a trial court may only gr ant a motion for summary judgment when “the pleadings, depositions, [and] answers to interrogatories, ... together with the affidavits, if any, ... show that there is no genuine issue as to any material fact and tha t any party is entitled to judgment as a matter of law.” V.R.C.P. 56(c)(3). As we review a motion for summary judgment, we “must consider the facts prese nted in the light most favorable to the nonmoving party.” Madkour v. Zolta k , 2007 VT 14, ¶ 12, 181 Vt. 347. With this standard in mind, we review the pen ding motions.

A private individual is authorized to bring an acti on against another individual or municipality under 24 V.S.A. § 4470(b ) to enforce a decision of “a zoning board of adjustment (ZBA), planning commi ssion, or development review board (DRB).” Whitmore v. Phillips , No. 18-1-09 Vtec, slip op. at 3 (Vt. Envtl. Ct. Mar. 12, 2009) (Wright, J.). Such actio ns may also be brought when based upon municipal land use determinations made b y this Court on appeal. City of Burlington, v. Richardson , No. 188-10-03 Vtec, slip op. at 12 (Vt. Envtl. Ct. June 27, 2006) (Wright, J.). We therefo re review Plaintiff’s Complaint to determine what claims are presented th at may lawfully be presented
under § 4470(b).

Plaintiff seeks to enforce this Court’s Order which denied a zoning permit and variance for approval of the access via the Nordlund right of way. However, we have searched in vain for the provision of that Order that Defendants have violated. The Order has no specifi c provision prohibiting the use of the Nordlund right of way; Plaintiff argues that the Order contains such a directive, but we find none. In fact, this Court specifically concluded that “it does not have the jurisdictional authority to d etermine the nature and limits of the use and enjoyment by either party of their respective properties, including easements that encumber or benefit those properties.” Order at 4.

Plaintiff appears to interpret our denial the varia nce request concerning the Nordlund right of way as a rejection of the Van Nostrand’s right to use theNordlund v. Van Nostrand, et. al. , No. 42-3-10 Vtec (Entry Order on Defendants’ sj m otions)(07-07-10) Page 4 of 5.

right of way that partially traverses Plaintiff’s p roperty. We rejected such a claim as beyond the scope of the permit application s we considered over the last several years, and must now reject Plaintiff’s assertion that the 2009 Order contains such a prohibition on the Van Nostra nd’s easement rights.

Plaintiff wishes to enjoin Defendants from using th e right of way over her property to access the Van Nostrand residences. In order for such relief to be awarded under 24 V.S.A. § 4470(b) there must be a decision, either from an appropriate municipal panel or this Court, speci fically stating that Defendants’ use is prohibited. In our search of ou r record of all municipal land use determinations relating to the Van Nostran d property, we find no such directive from an appropriate municipal panel, or t his Court.

In her complaint, Plaintiff references the DRB zoni ng permit which approved access to the back parcel through the Van Nostrand right of way. This brief mention does not refer to any specific permit condition to be enforced. We find no specific provision that limits or bars D efendants’ use of the Nordlund right of way. In the absence of a clear a nd specific prohibition contained as a permit condition, we must conclude t hat Plaintiff has failed to identify a zoning permit condition that can be enfo rced under 24 V.S.A. § 4470(b).

For a zoning permit to be the subject of an enforce ment action, the permit condition “must be expressed with sufficient clarity to give notice” of possible enforcement. In re Farrell & Desautels, I nc. , 135 Vt. 614, 617 (1978) (citing Suburban Club of Larkfield, Inc. v. Town of Huntington , 294 N.Y.S.2d 4, 8 (N.Y. Sup. Ct. 1968) aff'd ., 297 N.Y.S.2d 893 (N.Y. 1968) (unpub. mem.)). We must be mindful that zoning permits and the zoning ordinances upon which such permits rely “are in derogation of common law prope rty rights and that ‘in construing land use regulations any uncertainty mus t be decided in favor of the property owner.’” In re Weeks , 167 Vt. 551, 555 (1998) (citing In re Vitale
, 151 Vt. 580, 584, (1989)). If a provision is to be enforced, fair notice must be given to the party against whom enforcement is s ought. Id

. In the absence of a decision of an appropriate muni cipal panel or this Court clearly restricting the use of the Nordlund r ight of way, we cannot provide the relief Plaintiff requests under 24 V.S. A. § 4470. Id

. The Environmental Court is a court of limited juris diction and, as such, only possesses the authority granted to it by the L egislature; the power of this Court is limited to cases arising under specif ic statutes. See 4 V.S.A. § 1001. “There is no presumption of jurisdiction a s to courts of special and limited powers.” Barber v. Chase , 101 Vt. 343, 305 (1928) (citing Barrette v.
Crane , 16 Vt. 246 (1844)).

The Environmental Court’s authority is narrowly def ined; we must be diligent in refusing to address matters not within our jurisdiction. “It has long been the law of this State that a court will d ismiss a cause at any stage, whether moved by the party or not, when it is disco vered that it [lacks subject matter] jurisdiction.” Gerdel v. Gerdel , 132 Vt. 58, 65 (1973) (citing In re Bellows Falls Hydro-Elec. Corp. , 114 Vt. 443, 445 (1946)). “This Court has a duty to dismiss legal issues ‘[w]henever it appears by suggestion of the parties or otherwise that the court lacks jurisdict ion of the subject matter.’” In re Champlain Marina, Inc., Dock Expansion , No. 28-2-09 Vtec, slip op. at 9 (Vt. Envtl. Ct. July 31, 2009) (Durkin, J.) (quotin g V.R.C.P. 12(h)(3)).

Plaintiff’s claims fall outside of the jurisdiction of this Court. Plaintiff asks for Defendants to be enjoined from u sing the Nordlund right of way and from blocking the Van Nostrand right of way . Plaintiff also asks the Court to allow her to install signage and a gate to restrict access to theNordlund v. Van Nostrand, et. al. , No. 42-3-10 Vtec (Entry Order on Defendants’ sj m otions)(07-07-10) Page 5 of 5.

Nordlund right of way. Without a prior decision fr om an appropriate municipal panel or this Court authorizing these requests, we have no jurisdictional authority to address them. See In re Van Nostrand , Nos. 209-11-04 & 101-5-05 Vtec, slip op. at 9 (Vt. Envtl. Ct., Jan. 13, 2006) (Durkin, J.) (“[T]he Environmental Court is not vested with the jurisdic tion to determine the parties' respective private property rights to land or easements that benefit or encroach upon their property.”); In re Kelley , No. 34-3-04 Vtec, slip op. at 6 (Vt. Envtl. Ct. Aug. 19, 2005) (Wright, J.) (“[T] his Court cannot resolve disputed property rights as between the parties.”). Indeed, the Order states
that “the Court noted from the bench that it does n ot have the jurisdictional authority ... to determine the nature and limits of the use and enjoyment by either party of their respective properties, ‘inclu ding easements that encumber or benefit those properties.’” In re Van Nostrand , Nos. 209-11-04, 101-5-05 Vtec, slip op. at 4 (Vt. Envtl. Ct. Oct. 21, 2009) (Durkin, J.). To act upon Plaintiff’s requests, as well as her request to ren der void an agreement between Defendants Mark and Nancy Van Nostrand and Elizabeth Van Nostrand, would require us to ignore our jurisdictional limit ations. This we cannot do.

Absent a clear decision of a municipal panel or thi s Court, the relief Plaintiff seeks would require an independent determ ination of property rights and contract rights, neither of which is within the jurisdiction of this Court. Because these issues are outside of our jurisdictio n, we declined to address them in our prior trial and, therefore, cannot addr ess them through an action brought to enforce that Order.

After review of this action by the Court, we find t hat, even when viewing all material facts in a light most favorable to Pla intiff, we must conclude that this Court lacks subject matter jurisdiction o ver all the claims Plaintiff raises in her Complaint. As such, we are required to DISMISS Plaintiff’s action and GRANT Defendants’ motions for summary ju dgment.

___________________________________________ __ _July 7, 2010

______ Thomas S. Durkin, Judge Date

=================================================== ============================ Date copies sent to: ____________ Cle rk's Initials _______
Copies sent to:
Karl W. Neuse, Attorney for Plaintiff Linda C. Nordlund
James C. Foley, Jr., Attorney for Defendants El izabeth M. Van Nostrand and
the Elizabeth M. Van Nostrand 2007 Trust

Defendant Mark L. Van Nostrand
Defendant Nancy A. Van Nostrand