By Andy Delaney
Three decisions this past week.
First we have a decision about a wastewater permit. Vermont follows a first-in-time approach to wastewater permitting, which means in a practical sense that if a wastewater system encroaches in some way on a neighboring property, it might still be allowed so long as it's not interfering with the neighbor's use of the property. The so-called "isolation zone"—intended to prevent groundwater contamination—must be located sufficiently away from current or proposed drinking water supplies. Using the first-in-time approach, however, a permit can "overshadow" a neighboring property so long as the ANR approves and there's no interference with the drinking water and other criteria are met. That's essentially what happened in this case. Applicant filed for and got a permit. Neighbor's potable water supply was not affected. Neighbor said, "Whoa. That's overshadowing our property. No way." Neighbor got no love during the administrative appeal process with neighbor's this-is-a-constitutional-taking argument. The environmental division, in fact, concluded it didn't have jurisdiction to consider the private property rights due to being a court of limited jurisdiction, though it did consider the alleged taking in a way consistent with its limited jurisdiction. So, you guessed it, neighbor appeals.
On appeal, the SCOV majority concludes that the trial court was correct in limiting its takings analysis to its jurisdiction. Because "groundwater in Vermont is not subject to private ownership," it can't be taken by the government and to the extent the overshadowing might interfere with Neighbors' use of the groundwater, it's not really a property-rights claim. The majority doesn't bite on the Neighbors' this-creates-an-easement claim and thus doesn't consider whether the environmental division had jurisdiction to consider the same. The majority also rejects Neighbors' procedural-due-process claim, concluding neighbors failed "to show that they were deprived of any
cognizable property interest, and thus, they were not deprived of due process as a matter of law."
Chief Justice Reiber, joined by Justice Eaton, concurs in the judgment only. The concurrence reasons that the Neighbors failed to establish a per se takings claim and—because that's the only issue on appeal—the judgment is correct. In the concurrence's view, however, the environmental court did have jurisdiction to consider the easement-as-a-per-se-physical-taking claim. The concurrence also reasons that the Legislature's abolishment of "absolute ownership in groundwater" does not negate all property rights in groundwater (as the majority appears to reason). In re DJK, LLC, 2024 VT 34.
Next, we have a workplace grievance appeal that considers whether comments about fried chicken in the microwave are racial discrimination and racial harassment.
Grievant supervisor (white) and coworker (black) worked at a correctional facility. There was an exchange about coworker's food in the microwave and allegedly grievant several times said it smelled like fried chicken. It was not, in fact, fried chicken. Coworker found these comments, especially from a supervisor, racist and offensive and wrote a letter explaining his feelings to the superintendent and his union rep. There was a full investigation and the State concluded that grievant's behavior was racist, that he lied about it during the investigation, and fired him for nine alleged policy violations under the Collective Bargaining Agreement (CBA). Grievant appealed to the Vermont Labor Relations Board (VLRB) and the VLRB found that while grievant's behavior was "generally harassing," it was not racial discrimination or racial harassment. The VLRB upheld three out of nine violations, concluded that this "isolated incident" did not warrant termination, and changed grievant's penalty to a twenty-day suspension.
The State appeals. On appeal, the State argues that grievant's behavior violated the CBA and that its actions in firing grievant were reasonable. The majority agrees with the VLRB, however, that this was an isolated incident and that it was appropriate to look outside the plain language of the CBA in determining whether or not the findings of violations were warranted. Accordingly, the majority affirms.
Justice Waples, joined by Chief Justice Reiber dissents. The dissent reasons that the plain language of the CBA prohibited grievant's behavior and that the majority's interpretation of the contractual provisions at issue—especially in light of the plain language—is unreasonable and the VLRB's decision should be reversed. The dissent reasons that the majority's approach will lead to absurd results: meaning that before racist and harassing behavior reaches the level where it's sanctionable, it will also be actionable, and likely expose the state to civil liability. In re Miller, 2024 VT 35.
Third and finally, we have an appeal from a parental-rights-and-responsibilities (PRR) and parent-child-contact (PCC) order. Briefly, mom and dad live in Texas and Vermont respectively. Mom was awarded primary legal PRR. At least until preschool starts, the trial court ordered that they continue their preestablished biweekly PCC schedule. At first, the trial court ordered that said schedule would automatically change once child was enrolled in preschool. Father filed a motion arguing that the court couldn't have the order just change automatically based on some future event. The court agreed and vacated the automatic-modification part of that order. Instead, it ordered the parents to meet and confer and try to agree once the child started school of some sort, and if they couldn't agree, to go to mediation. Finally, the court noted that because the parties were able to work it out in the past, it would consider the parents' failure to agree a real, substantial, and unanticipated change in circumstances. The trial court rejected dad's argument that allowing mother to choose to enroll the child in preschool or kindergarten impermissibly allowed mom to dictate his PCC time.
Father appeals, arguing that the court abused its discretion "because the PCC order
permits mother to dictate father’s childcare choices when the child is with father." SCOV disagrees. SCOV notes—as did the trial court—that as the primary holder of legal PRR, mom has the right to make legal decisions about where the child goes to school. SCOV rejects dad's argument that mom's ability to enroll the child in school impermissibly allows mom to dictate what happens during dad's PCC time. The fact that the trial court mentioned mom's ability to enroll the child in school in response to dad's concerns doesn't mean that the trial court was saying that mom could do that to dictate what happens during dad's PCC time.
Next, dad argues that the trial court's decision that enrollment in preschool or turning four, whichever occurs later, was a proper benchmark for reassessing PCC is in error. SCOV disagrees. SCOV notes that arbitrary benchmarks can be impermissible, but this one is flexible. Accordingly, because it's not an automatic change—the parties have to discuss, mediate, and only when those fail, move to modify, it's not an abuse of discretion.
"Finally, father claims that the family court improperly ruled on a future PCC
schedule." Here, SCOV also disagrees. While SCOV acknowledges that one of the trial court's statements could have been taken out of context, it was not a prejudgment of the case, nor was it integral to the PCC order. SCOV rejects all of dad's arguments and affirms. Graham v. Adekoya, 2024 VT 36.
