Judge allows North Branch Fire District sewer dispute to proceed

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NEWFANE —A judge denied a water and sewer system operator's request to dismiss a complaint involving restaurants near Mount Snow, and allowed the complaint to be amended to include violations of the Vermont Administrative Procedures Act and Vermont's Open Meeting Law.

Andirons Re-Development Company LLC, which owns One More Time and Dover Forge on Route 100 in West Dover, claimed that North Branch Fire District improperly took away part of its allocated sewage output capacity, according to the decision. North Branch had argued that the court lacks jurisdiction due to Andirons' failure to exhaust remedies available under the district's bylaws.

Those bylaws state that the Prudential Committee has the power to "determine and establish rules and ordinances regulating the amount, extent, use," Judge Robert Gerety wrote in a decision filed in Windham Superior Court, Civil Division. But the committee "never adopted rules for allocation (or reversion of prior-granted allocation)."

Gerety said North Branch decided that 17,835 gallons per day had been allocated to a hotel and restaurant on the property sometime from 1975 to 2000. Rich Caplan said he purchased the property in 2000 in part because of the allocation.

"There were no changes to the property between 2000 and 2008," Gerety wrote. In 2011, Caplan "donated the former hotel building to the local fire department, who used it for training and destroyed it. The restaurant and commercial real estate [office] remained."

Caplan told North Branch about the donation and the district did not object or say demolition would be grounds for reverting the previous allocation, according to the decision. He also had a new building constructed on the property to host events in 2015, with a contract that included the same allocation.

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Last year, Caplan received a letter stating that the allocation had been reverted to North Branch "for non-use." He estimates it would cost more than $713,000 to buy back the allocation.

"The letter indicated that the reversion was effective Aug. 10, 2017, more than one year prior," Gerety wrote. "However, plaintiff had never been notified prior to receipt of the letter."

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Gerety said actions in an Aug. 10, 2017 meeting included drafting nine letters to notify property owners of reversion, but Caplan's property had not been listed and the meeting minutes have been removed from the district's website.

Decisions by the committee can be appealed by filing a written notice within 30 days of the decision. But North Branch's "failure to provide notice of its decision for one year, or to post plaintiff's address in its minutes, deprived plaintiff of the opportunity to appeal or request a stay under defendant's bylaws," Gerety wrote.

"Accordingly, the value of plaintiff's property [value] has been and will continue to be diminished by more than 75 percent," Gerety wrote, "and the businesses thereon will be unable to operate without injunctive relief."

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Caplan is seeking monetary damages and injunctive relief, which is a court order used to stop an act or behavior. His original complaint included information about the reversion but will now contain allegations about how the committee's actions violated the Vermont Administrative Procedures Act and the state's Open Meeting Law.

Gerety said there was no basis for taking back the allocation since a statute for non-use "only provides for reversion when a property owner applies for an allocation for new construction, but then does not complete the project within years (or commence in one)."

"The only thing which could have been considered a new building project subsequent to plaintiff's purchase was the construction of the events building in 2015," Gerety wrote. "The construction was commenced within one year and completed within three years, consistent with plaintiff's original plan. Furthermore, at the time of the construction, defendant represented in what it labelled a 'contract' that plaintiff had retained its allocation of 17,835 GPD. This re-affirmed the 2000 inspection report memorializing the same allocation."

A hearing on Caplan's request for a preliminary injunction has been scheduled for Sept. 5

Reach staff writer Chris Mays at cmays@reformer.com, at @CMaysBR on Twitter and 802-254-2311, ext. 273.


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