As work on Waitsfield’s municipal water project continues, so too does the legal work of completing permitting for that project. Since construction on the project got underway two years ago, and since permitting for the project got underway four years ago, Waitsfield property owner Virginia Houston has been appealing the project and any permitting decisions in every court in the state.
Currently, Houston has six appeals underway and a seventh is anticipated. Houston owns land abutting Reed Road where the town drilled the well it will use to supply the municipal water system. In the late 1990s, Houston purchased her property and tapped into what is thought to be one of the largest aquifers in New England.
Initially, the town attempted to purchase or negotiate with Houston for access to her water but ultimately drilled a well in the right of way of Reed Road, which was believed to be a town road. When a state judge ruled that Reed Road was not a town road in December of 2010, the town was tasked with negotiating with Houston and Jean Damon for land around the Reed Road well or beginning the process of taking the land by eminent domain. The town reached an agreement with Damon to purchase just under one-half acre but was unable to reach an agreement with Houston and continued the eminent domain proceedings. Those ended last fall when the court ruled in favor of the town. Waitsfield’s attorney Joe McLean compiled the list of lawsuits at the request of the town.
What follows is a list of the appeals currently underway.
Waitsfield Public Water System Act 250 Permit (Docket No. 33-2-10 Vtec) – This matter was tried in the Environmental Court in December 2010 and involves Houston’s challenge to the town’s Act 250 permit for the water system. Her appeal involves claims that the town’s project does not comply with Criterion 3 (water supply) and Criterion 5 (traffic) of Act 250. The case is currently under advisement by the Superior Court, Environmental Division, and a decision is expected soon.
In re Waitsfield Source Permit (Docket No. 128-8-11 Vtec) – This matter involves Houston’s challenge to the town’s source permit for its water supply well. The town moved to dismiss the appeal and the Environmental Division granted the town’s motion (as it had on two prior occasions). This matter is now closed, although Houston retains the ability to challenge future source permits, which are valid for two years.
Houston v. Town of Waitsfield (Docket No. 206-4-11 Wncv) – This matter involves Houston’s challenge to the town’s condemnation of 0.72 acres of land around the well site and 0.5 acres running along and adjacent to Reed Road. In October 2011, the Superior Court, Civil Division, Washington Unit, held an evidentiary hearing on Houston’s challenge to the necessity for the town’s project. The Superior Court issued a decision in November 2011 concluding that legal necessity exists for the town’s project, finding that the proposed water supply system is needed by the town as a whole, and that the particular land proposed to be condemned “is sufficiently convenient and desirable that the benefits of taking it for town use greatly outweigh the inconvenience and burden on Ms. Houston.” In rendering its decision in favor of the town, the court denied Houston’s request for an injunction and authorized the town to proceed with construction. Houston asked the trial court and the Vermont Supreme Court for permission to file an interlocutory appeal (i.e., an appeal prior to final judgment) of that decision – both courts denied her request. A trial before the Superior Court regarding the compensation owed to Houston and her various “counterclaims” against the town is anticipated during the summer of 2012, after which Houston will have the right to appeal to the Vermont Supreme Court.
Houston v. Town of Waitsfield and Damon (Docket No. 743-11-11 Wncv) – This matter involves Houston’s declaratory judgment against the town and adjoining landowner Jean Damon to establish her legal rights of access over Reed Road. During earlier legal proceedings regarding whether Reed Road is public or private, Houston and Damon stipulated to the location of a common boundary line that placed the majority of Reed Road (which the court ultimately concluded was private) on Damon’s property. Houston does not have a written easement or agreement to use Reed Road. Damon has granted an easement over Reed Road to the town. Houston has sued Damon and the town, and seeks to establish that she has a “prescriptive easement” (i.e., an easement established by adverse possession) over Reed Road and may use it for all purposes. Damon and the town are working cooperatively in defending this lawsuit. This case has been consolidated for trial with Docket No. 206-4-11 Wncv and is expected to be heard this summer.
Waitsfield Water System Prelim Plan (Docket No. 39-3-12 Vtec) – This matter involves Houston’s appeal of the town’s subdivision preliminary plan approval for the water system project granted to the town by the Development Review Board. Houston has challenged the proposed subdivision’s compliance with various provisions of the town’s Subdivision Regulations. This case is pending in the Environmental Division, but an initial status conference has not yet occurred.
Waitsfield Conditional Use Permit (well house) (Docket No. not yet assigned) – This matter involves Houston’s appeal of the town’s conditional use approval for the well house proposed in connection with the water system project granted to the town by the Development Review Board. Houston has challenged the project’s compliance with various provisions of the town’s zoning regulations. This case is pending in the Environmental Division, but an initial status conference has not yet occurred.
Waitsfield Water System Final Plan (appeal anticipated but not yet filed) – A decision on the final plan for the town’s proposed subdivision is under advisement by the town’s Development Review Board. It is anticipated that Houston will appeal to the Environmental Division once the decision issues, and that appeal will be consolidated with Docket No. 39-3-12 Vtec.
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