North Branch seeks dismissal of Dover Forge case

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NEWFANE — North Branch Fire District No. 1 wants a lawsuit thrown out of court, claiming that the owner of Dover Forge and One More Time has not exhausted "administrative remedies" offered to sewer system customers who are unhappy with choices made by the committee governing the district.

"Any person aggrieved by a decision of the Prudential Committee may appeal any decision or act taken by it, or failure to act, by filing a written notice of appeal in triplicate with the clerk of the Prudential Committee within 30 days of the date of such decision or act," says a North Branch bylaw cited by Burlington attorney Gary L. Franklin of Primmer Piper Eggleston & Cramer in a motion to dismiss.

Andirons Redevelopment Co. LLC, owned by Rich Caplan, claims North Branch unfairly took away his wastewater allocation or right and it would cost him $713,400 to get it back. His complaint says businesses on the property, including a real estate office, would be forced to leave if he cannot continue to keep the allocation at 17,835 gallons per day.

Caplan "failed to follow the bylaws and appeal the determination that plaintiff's allocation reverted due to non-use," Frank wrote, explaining that appeals are heard by a board of review, then decisions by that board can be appealed in court. "Because plaintiff admittedly received the letter notifying him of the adverse action upon which his claim is based on Aug. 24, 2018, his administrative remedy expired 30 days thereafter and is now barred."

Caplan was given "sufficient due process," said Franklin, who called for the court to "dismiss the complaint for lack of subject matter jurisdiction."

North Branch's motion should be denied because its "unconstitutional actions made it impossible for plaintiff to obtain an administrative remedy, leaving plaintiff with no choice but to seek relief in the Civil Division of the Superior Court," argued Caplan's attorney James Valente of Costello, Valente & Gentry in Brattleboro.

Valente claimed Caplan's property had not been among the nine the committee decided to take allocations back from in August 2017 but Caplan received a letter a year later saying his was.

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Minutes from the meeting have been removed from North Branch's website, according to the complaint.

North Branch's bylaws require a person aggrieved by a decision to file a notice of appeal within 30 days of its "decision or act," Valente wrote. The bylaws "do not contain a provision allowing an aggrieved party to commence an appeal after receipt or notice of defendant's decision or act."

North Branch's argument that Caplan should have known he needed to seek an appeal within 30 days of receiving a letter one year after the decision, Valente said, "is fundamentally unfair, contrary to public policy, and will lead to an absurd result which is enormously prejudicial to plaintiff."

The point of requiring exhaustion of remedies in Vermont's Administrative Procedures Act, Valente wrote, is "to protect the authority of an administrative agency and promote judicial efficiency." He said North Branch is a municipal entity and not subject to the law.

Valente also cited cases where courts waived exhaustion of administrative remedies.

"Because defendant's actions deprived plaintiff of the opportunity to timely notice its intent to pursue an administrative appeal, defendant effectively terminated its own appellate jurisdiction," he wrote, "and this is appropriate grounds for the court to exercise its discretion to decline to strictly apply the exhaustion requirement."

An April 4 hearing on the case in Windham Superior Court, Civil Division was cancelled due to scheduling issues for North Branch. A new date has not yet been set.

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


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