Campbell v. Town of Manchester, No. 20-1-14 Bncv (Wesley, J., July 16, 2014).

[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the 

accompanying data included in the Vermont trial court opinion database is not guaranteed.]

Campbell vs. Town of Manchester

ENTRY REGARDING MOTION

Count 1, Declaratory Judgment (20-1-14 Bncv)

Title: Motion for Summary Judgment (Motion 2)

Filer: Orland Campbell

Attorney: Pro Se

Filed Date: June 5, 2014

Response filed on 06/13/2014 by Attorney Robert E. Woolmington for Defendant Town of 

Manchester

Title: Motion for Summary Judgment (Motion 3)

Filer: Town of Manchester

Attorney: Robert E. Woolmington

Filed Date: June 9, 2014

No response filed

Plaintiff’s motion is DENIED and Defendant’s motion is GRANTED.

Opinion and Order

Denying Plaintiff’s Motion for Summary Judgment

and Granting Defendant’s Motion for Summary Judgment

Plaintiff is a resident of the Town of Manchester. Plaintiff did not file a timely 

homestead exemption in 2013, as then required by 32 V.S.A. § 5410 (2013). The Town 

Manager of Manchester then imposed a penalty on Plaintiff as provided by 32 V.S.A. § 5410(g). 

Plaintiff sought a waiver of the penalty for all town residents, which Manchester denied. 

Plaintiff did not appeal Manchester’s decision except by filing this case in the Vermont Superior 

Court. 

Plaintiff seeks a declaratory judgment interpreting the statutory scheme, including the 

answers to four questions set forth in his complaint. In the complaint, Plaintiff did not 

specifically seek relief in the nature of a refund or extinguishment of the penalty. Plaintiff 

moved for summary judgment and asks the Court to rule on the same four questions and an 

additional question. Plaintiff also asks the Court to order Manchester to refund all penalties it 

collected from residents who failed to file a homestead exemption. Plaintiff omitted any 

particular claim on his own behalf except as he purported to represent the interests of all 

STATE OF VERMONT

SUPERIOR COURT CIVIL DIVISION

Bennington Unit Docket No. 20-1-14 Bncv
Manchester residents. Defendant filed a cross-motion for summary judgment. Defendant 

argues the Court lacks jurisdiction to decide this case because Plaintiff did not exhaust his 

remedies and because there is no controversy for review. Defendant further argues it followed 

the statutory requirements. 

The Court grants summary judgment “if the movant shows that there is no genuine 

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” 

V.R.C.P. 56(a). The Court makes all reasonable inferences and resolves all doubts in favor of the 

non-moving party. Lamay v. State, 2012 VT 49, ¶ 6, 191 Vt. 635. 

The homestead declaration statute provides a path for appeal. See 32 V.S.A. § 5410. “A 

taxpayer may appeal an assessment of any other penalty under this section to the listers within 

14 days after the date of mailing of notice of the penalty, and from the listers to the board of 

civil authority and thereafter to the courts...” Id. § 5410(j). Alternatively, the taxpayer could 

seek abatement with the municipality. See id. The taxpayer could appeal an abatement 

decision to the Superior Court. See V.R.C.P. 75; see also Murray v. Burlington, 2012 VT 11, ¶¶ 8, 

14, 191 Vt. 597 (mem.) (holding a taxpayer may appeal an abatement decision under V.R.C.P. 

75).

A plaintiff must exhaust administrative remedies before bringing suit in the Superior 

Court. “Where a statute creates administrative remedies, ‘a party must pursue, or ‘exhaust,’ all 

such remedies before turning to the courts for relief.’” Bridgewater v. Dep’t of Taxes, 173 Vt. 

509, 510 (2001) (mem.) (quoting Rennie v. State, 171 Vt. 584, 585 (2000)). The Superior Court 

lacks subject matter jurisdiction where a plaintiff fails to exhaust administrative remedies. See 

id. at 511; see also Williams v. State, 156 Vt. 42, 58–59 (1990) (holding the Superior Court could 

not grant declaratory relief where a taxpayer had an avenue for relief in another tribunal). 

The Court lacks subject matter jurisdiction to hear Plaintiff’s claim. The homestead 

declaration statute established an avenue for appeal of a penalty first to the listers, then to the 

board of civil authority, and finally to the courts. 32 V.S.A. § 5410(j). Plaintiff sought a waiver 

from the Town, but thereafter he did not follow the proper appeals process. Because Plaintiff 

failed to exhaust his administrative remedies before seeking relief from the courts, the Court 

lacks subject matter jurisdiction. See Bridgewater, 173 Vt. at 510–11.

Plaintiff’s failure to exhaust his administrative remedies is sufficient grounds to grant 

summary judgment to Defendant. Nevertheless, it bears explaining that, on the current state 

of the pleadings, the Court is without proper authority to grant relief because Plaintiff seeks an 

advisory opinion. The Superior Court may declare the rights or legal relationship of parties. 12 

V.S.A. § 4711. Nevertheless, the declaratory judgment statute is limited by the requirement of a 

case or controversy. “Turning to the declaratory judgment proceeding itself, the first 

prerequisite is that there be a real case or controversy. This requirement is jurisdictional.” 

Cupola Golf Course, Inc. v. Dooley, 2006 VT 25, ¶ 14, 179 Vt. 427. The Court cannot advise 

parties about a law, unless the issues are sufficiently concrete to establish an actual controversy 

the outcome of that requires a declaratory ruling by the Court. See Dernier v. Mortgage 

Network, Inc., 2013 VT 96, ¶ 38. 

Plaintiff asks the Court to interpret 32 V.S.A. § 5410, without having sought any other 

remedy in his complaint that implicates the existence of an actual controversy. In the 

complaint, Plaintiff did not request a return of the money he paid as a penalty. Although 
Plaintiff sought return of the penalty for all Manchester residents who paid the penalty in his 

summary judgment pleading, this grandiose claim of relief was not raised by the complaint. 

Plaintiff cannot seek relief for other Manchester residents without complying with the exacting 

requirements of V.R.C.P. 23 governing class actions. Plaintiff could have plead his individual 

claim to a refund or extinguishment of the penalty, but he did not. This failure to plead an 

avenue of relief demonstrating the necessity of a declaratory ruling means Plaintiff’s claim 

cannot survive summary judgment. See Cupola, 2006 VT 25, ¶ 14. The Court cannot provide 

advisory answers to Plaintiff’s questions. See Dernier, 2013 VT 96, ¶ 38. Although the Court 

would have granted Plaintiff the opportunity to amend his complaint under V.R.C.P. 15, to 

attempt to establish an actual case or controversy, amendment is not appropriate here because 

Defendant is entitled to summary judgment for Plaintiff’s failure to exhaust administrative 

remedies.

The Court must grant summary judgment to the Town of Manchester and deny 

summary judgment to Plaintiff. The Court lacks subject matter jurisdiction to hear this case. The 

Court does not reach the merits of Plaintiff’s claim.

Order

The Court DENIES Plaintiff’s Motion for Summary Judgment. The Court GRANTS

Defendant’s Motion for Summary Judgment.

Electronically signed on July 16, 2014 at 03:12 PM pursuant to V.R.E.F. 7(d).

______________________________________

John P. Wesley

Superior Court Judge

Notifications:

Plaintiff Orland Campbell

Robert E. Woolmington (ERN 3047), Attorney for Defendant Town of Manchester

wesley