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H.493

Introduced by   Representative Smith of New Haven

Referred to Committee on

Date:

Subject:  Conservation and development; state land use and development plans; permits; appeals

Statement of purpose:  This bill proposes to provide that by submitting an appeal of a district environmental commission decision, the person submitting the appeal asserts that the appeal is not frivolous and is not being submitted to harass, cause unnecessary delay, or needlessly increase the cost of permitting.  If the environmental court determines that these provisions have been violated, the court may impose sanctions on parties who committed the violation.  Sanctions may be imposed by motion of a party or on the court’s initiative.  Sanctions may include directives of a nonmonetary nature, an order to pay a penalty into court, and an order directing payment of attorneys’ fees and other expenses incurred to the party that made the motion.  The bill proposes to establish how notice of the motion is served on the party whose conduct is the basis of the complaint.  The bill proposes to enact a similar section in the state’s planning and zoning chapter.

AN ACT RELATING TO FRIVOLOUS APPEALS IN ACT 250 PROCEEDINGS AND PROCEEDINGS UNDER 24 V.S.A. CHAPTER 117

It is hereby enacted by the General Assembly of the State of Vermont:

Sec. 1.  10 V.S.A. § 6093 is added to read:

§ 6093.  RELIEF FROM FRIVOLOUS APPEALS

(a)  By submitting an appeal from an act or decision of a district coordinator or a district environmental commission (whether by signing, filing, submitting, or later advocating), a pro se litigant is certifying that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:

(1)  the appeal is not being submitted for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of permitting;

(2)  the appeal submitted is warranted by a nonfrivolous argument for the extension, modification, reversal, or revocation of a granted or denied permit;

(3)  the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation; and

(4)  the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.

(b)  If, after notice and a reasonable opportunity to respond, the environmental court determines that subsection (a) of this section has been violated, the court, subject to the conditions stated in this subsection, may impose an appropriate sanction upon the parties that have violated subsection (a) of this section or are responsible for the violation.

(1)  Sanctions may be imposed in two ways:

(A)  By motion.  A motion for sanctions shall be made separately from other motions or requests and shall describe the specific conduct alleged to violate subsection (a) of this section.  If warranted, the environmental court may award to the party prevailing on the motion the reasonable expenses and attorney's fees incurred in presenting or opposing the motion.  

(B)  On the court's initiative.  On its own initiative, the environmental court may enter an order describing the specific conduct that appears to violate subsection (a) of this section and directing a party to show cause why it has not violated that subsection.

(2)  A sanction imposed for violation of this section shall be limited to what is sufficient to deter repetition of this conduct or comparable conduct by others similarly situated.  Subject to the limitations in subdivisions (A) and (B) of this subdivision (2), the sanction may consist of, or include, directives of a nonmonetary nature, an order to pay a penalty into court, and, if imposed on a motion and warranted for effective deterrence, an order directing payment to the party that made the motion of some or all of the reasonable attorneys' fees and other expenses incurred by that party as a direct result of the violation.

(A)  Monetary sanctions may not be awarded against a represented party for a violation of subdivision (a)(2) of this section.

(B)  Monetary sanctions may not be awarded on the court's initiative unless the court issues its order to show cause before a voluntary dismissal or settlement of the claims made by or against the party that is to be sanctioned.

(3)  When imposing sanctions, the environmental court shall describe the conduct determined to constitute a violation of this section and explain the basis for the sanction imposed.

(c)  Service of a motion for sanctions on a party shall be made to that party directly.

(1)  Service shall be made by:

(A)  Delivering a copy to the person served by:

(i)  handing it to the person;

(ii)  leaving it at the person's office with a clerk or other person in charge, or if no one is in charge leaving it in a conspicuous place in the office; or

(iii)  if the person has no office or the office is closed, leaving it at the person's dwelling house or usual place of abode with someone of suitable age and discretion residing there.

(B)  Mailing a copy to the last known address of the person served. Service by mail is complete on mailing.

(C)  If the person served has no known address, leaving a copy with the appropriate authority at the environmental court.

(D)  Delivering a copy by any other means, including electronic means, consented to in writing by the person served.  Service by electronic means is complete on transmission; service by other consented means is complete when the person making service delivers the copy to the agency designated to make delivery.

(2)  Service by electronic means is not effective if the party making service learns that the attempted service did not reach the person to be served.

(3)  All papers after the complaint required to be served upon a party, together with a certificate of service, must be filed with the environmental court within a reasonable time after service.  The filing of papers with the environmental court shall be made by filing them with the court.  The environmental court may permit papers to be filed, signed, or verified by electronic means.  The environmental court shall not refuse to accept for filing any paper presented for that purpose solely because it is not presented in proper form as required by this section, court rules, or any local rules or practices.

(4)  Every motion for sanctions shall be served as provided in this section, but shall not be filed with or submitted to the environmental court unless, within 21 days after service of the motion (or such other period as the court may prescribe), the appeal is not withdrawn or appropriately corrected.

Sec. 2.  24 V.S.A. § 4477 is added to read:

§ 4477.  RELIEF FROM FRIVOLOUS APPEALS

(a)  By submitting an appeal from an act or decision under this chapter (whether by signing, filing, submitting, or later advocating), a pro se litigant is certifying that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:

(1)  the appeal is not being submitted for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of permitting;

(2)  the appeal submitted is warranted by a nonfrivolous argument for the extension, modification, reversal, or revocation of a granted or denied permit;

(3)  the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation; and

(4)  the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.

(b)  If, after notice and a reasonable opportunity to respond, the environmental court determines that subsection (a) of this section has been violated, the court, subject to the conditions stated in this subsection, may impose an appropriate sanction upon the attorneys, law firms, or parties that have violated subsection (a) of this section or are responsible for the violation.

(1)  Sanctions may be imposed in two ways:

(A)  By motion.  A motion for sanctions shall be made separately from other motions or requests and shall describe the specific conduct alleged to violate subsection (a) of this section.  If warranted, the environmental court may award to the party prevailing on the motion the reasonable expenses and attorney's fees incurred in presenting or opposing the motion.

(B)  On the court's initiative.  On its own initiative, the environmental court may enter an order describing the specific conduct that appears to violate subsection (a) of this section and directing a party to show cause why it has not violated that subsection.

(2)  A sanction imposed for violation of this section shall be limited to what is sufficient to deter repetition of this conduct or comparable conduct by others similarly situated.  Subject to the limitations in subdivisions (A) and (B) of this subdivision (2), the sanction may consist of, or include, directives of a nonmonetary nature, an order to pay a penalty into court, and, if imposed on a motion and warranted for effective deterrence, an order directing payment to the party that made the motion of some or all of the reasonable attorneys' fees and other expenses incurred by that party as a direct result of the violation.

(A)  Monetary sanctions may not be awarded against a represented party for a violation of subdivision (a)(2) of this section.

(B)  Monetary sanctions may not be awarded on the court's initiative unless the court issues its order to show cause before a voluntary dismissal or settlement of the claims made by or against the party that is to be sanctioned.

(3)  When imposing sanctions, the environmental court shall describe the conduct determined to constitute a violation of this section and explain the basis for the sanction imposed.

(c)  Service of a motion for sanctions on a party shall be made to that party directly.

(1)  Service shall be made by:

(A)  Delivering a copy to the person served by:

(i)  handing it to the person;

(ii)  leaving it at the person's office with a clerk or other person in charge, or if no one is in charge leaving it in a conspicuous place in the office; or

(iii)  if the person has no office or the office is closed, leaving it at the person's dwelling house or usual place of abode with someone of suitable age and discretion residing there.

(B)  Mailing a copy to the last known address of the person served. Service by mail is complete on mailing.

(C)  If the person served has no known address, leaving a copy with the appropriate authority at the environmental court.

(D)  Delivering a copy by any other means, including electronic means, consented to in writing by the person served.  Service by electronic means is complete on transmission; service by other consented means is complete when the person making service delivers the copy to the agency designated to make delivery.

(2)  Service by electronic means is not effective if the party making service learns that the attempted service did not reach the person to be served.

(3)  All papers after the complaint required to be served upon a party, together with a certificate of service, must be filed with the environmental court within a reasonable time after service.  The filing of papers with the environmental court shall be made by filing them with the court.  The environmental court may permit papers to be filed, signed, or verified by electronic means.  The environmental court shall not refuse to accept for filing any paper presented for that purpose solely because it is not presented in proper form as required by this section, court rules, or any local rules or practices.

(4)  Every motion for sanctions shall be served as provided in this section, but shall not be filed with or submitted to the environmental court unless, within 21 days after service of the motion (or such other period as the court may prescribe), the appeal is not withdrawn or appropriately corrected.



Published by:

The Vermont General Assembly
115 State Street
Montpelier, Vermont


www.leg.state.vt.us