Theodore de Macedo Soares v. Barnet Fire District #2 et al.
No. 21-AP-290
Supreme Court of Vermont
June Term, 2022
2022 VT 34
Mary Miles Teachout, J.
NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal revision before publication in the Vermont Reports. Readers are requested to notify the Reporter of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made before this opinion goes to press.
Devin McLaughlin of Langrock Sperry & Wool, LLP, Middlebury, for Defendant-Appellee Barnet Fire District No. 2, Prudential Committee.
Elijah R. Bergman of Larson & Gallivan Law, PLC, Rutland, for Defendant-Appellee Vermont Municipal Bond Bank.
PRESENT: Reiber, C.J., Eaton, Carroll, Cohen and Waples, JJ.
¶ 1. WAPLES, J. Plaintiff challenges the process by which defendant, the Prudential Committee for Barnet Fire District No. 2, obtained approval for a municipal bond. The trial court denied plaintiff‘s request to invalidate the bond vote. It found that although the Prudential Committee violated the Open Meeting Law during the process, the defect was the result of oversight, inadvertence, and mistake, and it was cured by the Committee‘s validation resolution. The court denied plaintiff‘s remaining requests for relief as well. Plaintiff argues on appeal that the court erred in: (1) concluding that the Open Meeting Law violations could be cured under
I. Procedural History
¶ 2. The record indicates the following. The District has long had unsafe drinking water. To address this issue, the District‘s legislative body—the three-member Prudential Committee—sought to acquire the District‘s private water system and pursue state funding for its rehabilitation. By October 2013, the Prudential Committee members had agreed to seek a loan from the Vermont Drinking Water State Revolving Fund (SRF loan), which required issuance of a municipal bond.
¶ 3. To secure approval for the bond, the Prudential Committee was required by statute to take several steps. First, it needed to determine
at a regular or special meeting . . . by resolution passed by a vote of a majority of those members present and voting, that the public interest or necessity demands improvements, and that the cost of the same will be too great to be paid out of the ordinary annual income and revenue.
¶ 4. The law includes a method by which defects in the bond process can be cured. After voters have approved the issuance of a bond and it is discovered that “such proceedings are defective because of failure to comply with any of the statutory
¶ 5. In this case, the Prudential Committee did not strictly adhere to the statutory process for securing approval of a bond. The court found that the Committee members agreed on a plan to purchase and rehabilitate the drinking-water system and obtain funding through an SRF loan with a municipal bond, and held many meetings on this topic. The Committee did not have a motion before it, however, nor did it vote on a specific necessity resolution tailored to comply with the first requirement of
¶ 6. At its December 2013 meeting, the Committee voted to set a date for “the Annual Meeting and Bond Vote” in January 2014 with individual notice provided to taxpayers via postcard. The Committee, on motion, voted to set the bond amount at $750,000. The agenda was prepared and postcards mailed to District voters. The notice of annual meeting included an article that read: “Shall the voters of Barnet Fire District #2 authorize the Prudential Committee to apply for a loan from the Drinking Water State Revolving Loan Fund and borrow an amount not to exceed $750,000.00 for the purchase of and improvements to the privately owned Barnet Water System Inc.”
¶ 7. After consulting with an experienced bond attorney, the Committee learned that it could not hold the bond vote at the January 2014 meeting due to inadequate notice. The bond attorney suggested that, at the scheduled and warned meeting, the Committee could set new dates for a properly noticed informational meeting and subsequent bond vote, which it did. The attorney believed that the Committee had satisfied “in substance” the requirements of the necessity resolution because he understood that all Committee members agreed on the plan and terms of the bond to be submitted to the members for a vote.
¶ 8. At the January 2014 meeting, the article concerning the bond was tabled due to the procedural errors in its posting. The Committee members explained and discussed with attendees the purchase of the water system and the bond vote proposal. Following the meeting, the bond attorney prepared a new “Warning and Article,” which stated erroneously that its contents were adopted and approved at the January 2014 Committee meeting. The warning notified District voters of the upcoming bond vote and an informational meeting. In February 2014, the article, with its “general obligation bond” provision, was approved by a vote of thirty to six. Plaintiff did not assert any claim of irregularity in the conduct of this vote or the manner in which the warning was posted.
¶ 9. Plaintiff disagreed with the plan to purchase and rehabilitate the drinking-water system; he advocated that District residents
¶ 10. Plaintiff filed the instant suit in June 2014.1 The Committee thereafter took steps to ratify the bond vote and cure any procedural errors. At a Special Meeting in June 2014, the
Committee voted unanimously to approve and adopt a validation resolution that sought to ratify, validate, and confirm “any claim of irregularity” related to the water system, related loans, the need for improvements, or the call, notice, and conduct of the February 19 meeting. When that attempt was deemed unsuccessful by the trial court on summary judgment, the Committee in April 2015 unanimously adopted another validation resolution in which it acknowledged that a preliminary finding of necessity did not occur in an open meeting as required by
¶ 11. The trial court ruled on partial summary judgment in January 2020 that “the second validation resolution complied with the statutory requirements in a manner in which the first validation did not.” Plaintiff argued, however, that no cure was available under
measure,” Putter v. Montpelier Pub. Sch. Sys., 166 Vt. 463, 467, 697 A.2d 354, 357 (1997), available only in the most extraordinary situations.
¶ 12. Following a two-day trial, the court found in an April 2021 decision that the Prudential Committee had cured the defects in the bond process. The defects, it explained, were that the Committee did not properly adopt a necessity resolution at a meeting before the bond vote and that the warning and proposal for a bond vote was adopted at a districtwide meeting rather than at a Committee meeting. The court found that these defects arose from oversight, inadvertence, and mistakes of law and fact on the part of both the Committee members and the bond attorney.
¶ 14. The Committee members readily admitted their error in signing documents that misstated what occurred at the January 2014 meeting and they were clear about the reason: there was nothing in the documents that had not already been agreed on at open meetings and they were following the directions of the attorney they hired to guide them through the process. It was not apparent to them that they could not take action as a Prudential Committee during a districtwide annual meeting, even though their actions were open to more scrutiny than at regular Prudential Committee meetings. The bond attorney also erred by failing to advise the Committee before the January 2014 meeting that it should formally adopt a necessity resolution at that meeting as well
as the terms of the warning and bond proposal; the attorney should have prepared appropriate documentation in advance rather than after the fact. The court found no intent to circumvent any requirements of law or procedure, and no attempt to conceal any action. Given the confluence of errors cited above, and mindful of the clarity and transparency provided by the Committee throughout the process, the court found that the Committee members and their attorney simply overlooked the formalities required by the Open Meeting Law and the bond-vote statutes.
¶ 15. The court found that plaintiff was entitled to a declaratory judgment that the Committee violated the Open Meeting Law by failing to adopt a necessity resolution and a warning and resolution for a bond vote at a public meeting as required by
¶ 16. Plaintiff moved for reconsideration and requested attorney‘s fees, and the court denied both requests. Plaintiff then asked the court to amend its judgment to explicitly decide if an Open Meeting Law violation could be cured by validation of a faulty bond vote. The court denied that request as well. This appeal followed.
II. Arguments on Appeal
A. Validation under 24 V.S.A. § 1757
¶ 17. We first consider plaintiff‘s assertion that the defects here could not be cured under
¶ 18. “The interpretation of a statute is a question of law that we review de novo.” Hayes v. Hayes, 2018 VT 102, ¶ 9, 208 Vt. 380, 198 A.3d 1263 (quotation omitted). “When construing statutes, our primary goal is to give effect to the Legislature‘s intent” and “[t]he definitive source of legislative intent is the statutory language, by which we are bound unless it is uncertain or
unclear.” In re Bennington Sch., Inc., 2004 VT 6, ¶ 12, 176 Vt. 584, 845 A.2d 332 (mem.) (citations omitted). We “presume that all language in a statute was drafted advisedly, and that the plain ordinary meaning of the language used was intended.” Doyle v. City of Burlington Police Dep‘t, 2019 VT 66, ¶ 10, 211 Vt. 10, 219 A.3d 326 (quotation omitted). Section 1757 is a remedial statute and it is therefore entitled to a liberal construction. Conn, 120 Vt. at 321, 140 A.2d at 9.
¶ 19. Section 1757, entitled “Validation,” specifically provides:
(a) Whenever the qualified voters of a municipal corporation . . . have voted by the requisite majority to authorize issuance of bonds to pay for any public improvement, and such proceedings are defective because of failure to comply with any of the statutory requirements therefor, although the required length of notice and notice of the purpose of such meeting has been had, such omissions may be cured by a resolution of such legislative branch by a vote of two-thirds of all its members at a regular or a special meeting called for that purpose, stating that the defect was the result of oversight, inadvertence, or mistake of law or fact.
(b) When such omission has been so supplied by such resolution, all bonds or other financing within the terms of the action of the qualified voters shall be as valid as if the statutory requirement had been complied with.
¶ 20. We held in Conn that this language “affords a remedy for the validation and correction of technical irregularities incident to municipal elections called for the purpose of voting and financing public improvements.” 120 Vt. at 321, 140 A.2d at 9. It was enacted to ameliorate the hardship suffered by municipalities that deviated from the exact statutory requirements relating to public improvements. Id. Before the enactment of this provision, “[t]he consequence of defective notice was the defeat of the vote of the electorate,” id., an outcome that “represents one of the more extreme remedial measures available to a court” and is “profoundly destabilizing to the local political process.” Putter, 166 Vt. at 467, 697 A.2d at 357.
¶ 21. In its initial form, the validation provision “reached only defects arising from a failure to strictly comply” with the requirements for a necessity resolution. Conn, 120 Vt. at 321, 140 A.2d at 10. The Legislature then “substantially enlarged” “the scope of the curative provisions” to expressly include the “failure to comply with any of the statutory requirements therefor,” as long as “the required length of notice and notice of the purpose of said meeting has been had.” Id. (quotation omitted). The Legislature sought to prevent “the frustration and defeat of vote of the electorate. At the same time, reasonable restraints were preserved by the requirement that the vote, to be protected, must be by the requisite majority after the purpose of the meeting had been published for the required length of time.” Id. at 321, 140 A.2d at 10.
¶ 22. The statute plainly states that a validation vote will cure a municipality‘s “failure to comply with any of the statutory requirements required” for obtaining a bond,
¶ 23. The court found that the defects here were “the result of oversight, inadvertence, [and] mistake[s] of law [and] fact,”
as part of a complicated process being overseen by laypeople—and thereby prevent the disruption that would be caused by invalidation of the public vote.
¶ 24. Our conclusion is also consistent with the ratification process allowed for Open Meeting Law violations more generally. “As a general rule, ‘whatever acts public officials may do or authorize to be done in the first instance may subsequently be adopted or ratified by them with the same effect as though properly done under previous authority.‘” Valley Realty & Dev., Inc. v. Town of Hartford, 165 Vt. 463, 466, 685 A.2d 292, 294 (1996) (quoting 10A E. McQuillin, Municipal Corporations § 29.104, at 60 (3d ed. 1990)).
¶ 25. In Valley Realty, we rejected the argument that municipal action taken in violation of the Open Meeting Law rendered such action void. See id. at 466, 685 A.2d at 294 (explaining that “[t]he remedy provision of the open meeting law does not provide that actions taken in violation of the law are void“). We held that a public body need only ratify at an open meeting actions taken in violation of the Open Meeting Law to ensure that such actions are “effective and binding.” Id. at 468, 685 A.2d at 296. We found this conclusion consistent with legislative intent, recognizing that “invalidation of public action is . . . an ‘extreme remedy‘” and that mechanically vacating decisions “made in nonconformity with the sunshine law may do more disservice to the public good than the violation itself.” Id. (quotations omitted). Allowing municipalities to cure violations prevents “necessary public action” from becoming “gridlocked.” Id. We emphasized that “[t]he purpose of open meeting laws is to give public exposure to governmental decision-making,” “not to create vehicles for individuals displeased with governmental action to obtain reversals of substantive decisions,” and we cautioned that the law should be administered “with its purposes and the public interest in mind.” Id. at 467-68, 685 A.2d at 295 (quotation omitted).
¶ 26. These considerations are equally relevant here. The trial court found that the Prudential Committee consistently attempted to promote the interests underlying the Open Meeting Law and it acted in a transparent way throughout this process. It provided voters with
more notice—via individual postcards—than was required. It discussed all of the elements of the necessity resolution at public meetings and took action at the annual meeting (rather than a Committee meeting), which subjected their actions to more scrutiny than would have been present at a regular Prudential Committee meeting. The Committee, and its counsel, made mistakes in following
¶ 27. None of plaintiff‘s arguments persuade us otherwise. Plaintiff contends that the bond process must begin anew. He reiterates his assertion that this was not the type of error that could be cured under
¶ 28. Having concluded that the cure offered by
B. Request for New Trial
¶ 29. Plaintiff next asserts that the court erred by failing to explicitly address his request for a new trial. In his motion for reconsideration, and again in his motion to amend, plaintiff asked
for “a new trial to admit into evidence [his] Exhibit 16 and related testimony that was offered at trial as proof of the harm caused to the Plaintiff and his Barnet Fire District #2 community by the Prudential Committee‘s violations of the Vermont Open Meeting Law but denied by this Court.”
¶ 30. The court denied plaintiff‘s motions and plaintiff fails to show any abuse of discretion. See Constr. Drilling, Inc. v. Eng‘rs Constr., Inc., 2020 VT 38, ¶¶ 25, 212 Vt. 323, 236 A.3d 193 (explaining that Court reviews rulings on motion for new trial for abuse of discretion). Plaintiff references evidence and testimony that the trial court apparently excluded at trial. He provides no transcript of the proceedings below and we have no record on which to evaluate his claim that the court should have admitted such evidence. See V.R.A.P. 10(b)(1) (“By failing to order a transcript, the appellant waives the right to raise any issue for which a transcript is necessary for informed appellate review.“); In re S.B.L., 150 Vt. 294, 307, 553 A.3d 1078, 1087 (1988) (explaining that appellant bears consequences of failing to order transcript and without transcript Court assumes that evidence supports trial court‘s findings). He fails to show why the exclusion of such evidence entitled him to a new trial and we find no error in the court‘s denial of his post-judgment motions that included this request for relief.
C. Attorney‘s Fees
¶ 31. Plaintiff next challenges the court‘s denial of his attorney-fee request. On this point, the trial court found as follows. Plaintiff sought attorney‘s fees and costs incurred since the inception of this litigation, relying on
¶ 32. The court elaborated on all of these points in its decision. It explained that the newly enacted attorney-fee provision outlined steps municipalities could take to avoid paying
attorney‘s fees. This escape-valve provision is triggered by a pre-suit “written notice” alleging “a specific violation” and requesting “a specific cure of such violation.”
¶ 33. Even beyond that, the court explained, plaintiff did not incur any attorney fees within the scope of
¶ 34. Plaintiff offers no persuasive basis to overturn this decision. He again cites
¶ 35. We agree with the trial court that the statutory provisions enacted after plaintiff filed suit do not apply here. “Vermont statutory law and case law normally prohibit retrospective application of new and amended statutes.” Agency of Nat. Res. v. Towns, 173 Vt. 552, 555, 790 A.2d 450, 455 (2001) (mem.) (citing
to those that affect preexisting rights and obligations . . . may be applied retrospectively.” Id. at 556, 790 A.2d at 456 (quotation omitted).
¶ 36. The new language in
D. Curb-Stop Fees
¶ 37. Finally, plaintiff argues that the court erred in dismissing his claim regarding curb-stop fees. Plaintiff argued below that the Committee‘s curb-stop policy unconstitutionally favored a subsection of the community. The court did not address this argument in its March 2015 summary-judgment decision because plaintiff raised it for the first time in his opposition to summary judgment. Plaintiff also offered no legal support for this claim and the court concluded that plaintiff failed to establish a valid legal theory that would entitle him to relief.
¶ 38. The court revisited this claim in August 2015 in response to plaintiff‘s motion for reconsideration. It noted that it had dismissed the curb-stop claim sua sponte and would thus reconsider its decision. It found that, contrary to plaintiff‘s assertions, Vermont law empowered municipalities to establish ordinances relating to a municipal water system, “including the authority to require existing customers to remain connected to such municipal system, and to impose penalties for the breach thereof, and enforce the same.”
¶ 39. Plaintiff argues on appeal that the District has no statutory authority to charge a curb-stop fee. He maintains that
¶ 40. We reject this argument. Section 3315 provides that “municipal corporation[s] shall have the power to make, establish, alter, amend, or repeal ordinances, regulations, and bylaws relating to the matters contained in this chapter,” concerning “[w]aterworks“, which are “not inconsistent with law, including the authority to require existing customers to remain connected to such municipal system, and to impose penalties for the breach thereof, and enforce the same.” The imposition of a curb-stop fee is consistent with the authority granted by the plain language of statute. The authority to require existing customers to remain connected to the municipal water
system necessarily encompasses the power to charge a fee to those who seek to leave that system. The court did not err in rejecting plaintiff‘s curb-stop fee claim.
We affirm the court‘s judgment in favor of the Prudential Committee and remand
FOR THE COURT:
Associate Justice