Town officials named in developer

Manager complains about ‘shotgun’ legal strategy

By Tom Gresham
Observer staff

Several Williston municipal officials remain listed as defendants as a developer’s lawsuit against the town nears trial.

The Village Associates suit, which seeks a sewer allocation for a proposed housing development near Taft Corners and unspecified punitive and compensatory damages, has been scheduled for trial May 25-27 and June 21-22 in Chittenden Superior Court. The suit was filed in the spring of 2003.

Despite the sustained efforts of the town’s attorneys to have the town officials removed as defendants, the lawsuit still lists Town Manager Rick McGuire, former Town Planner Mike Munson and Public Works Director Neil Boyden.

A judge ruled on May 12, 2003 that the officials could not be removed as defendants in the lawsuit, and Judge Meredith Wright, the Superior Court judge who will be hearing the case next month, has not responded to the town’s renewed request, made in April 2004, to remove the officials from the suit.

McGuire said the lawsuit does not expose town officials to financial liability, because they are each covered by professional liability insurance. The insurance company that holds the policy has an attorney contributing to the town’s defense.

Still, McGuire said, he does not believe he or the other defendants should be included in a lawsuit for doing their job. He said the Village Associates’ tactic of including officials in the suit suggested “a shotgun approach.”

“I don’t understand why I’m listed,” McGuire said. “All I was doing was administering a town ordinance. Why I’m being sued for doing my administrative duty, I don’t know.”

In its request to dismiss the suit against the officials, town attorneys said the officials were being sued in their capacities as town officials, which was identical to suing the town. Therefore, the suit only had one defendant, the attorneys argued.

However, the Village Associates attorneys cited preceding cases to argue that the question of whether the officials were acting in their official capacity could only be answered at trial.

Village Associates also argued that the inclusion of the officials was necessary for the plaintiff to receive “complete and adequate relief” financially in light of the town’s assertion that punitive damages could not be found against a municipality. Removing the officials, Village Associates argued, would also preclude its claim of punitive damages.

An attorney representing Village Associates did not return a message seeking comment on the case.

Village Associates filed suit against Williston after it did not receive a sewer allocation for a large multi-use project proposed for property on Zephyr Lane near Taft Corners. The project, which would include 110 residential units, had received phasing allocation from the Development Review Board for the first phase of the project. Many of the units are designed to meet the town’s “affordable” designation.

The Selectboard did not release enough sewer capacity to serve the Village Associates project, citing the dwindling capacity the town had at the time. The town recently received 200,000 new gallons per day of sewer capacity through an expansion at the Essex Junction wastewater plant.

Village Associates has argued the town’s denial of a sewer allocation for the project amounts to a refusal to allow the project to proceed. The developer said the refusal conflicts with the town’s comprehensive town plan goals of promoting affordable housing and development in the Taft Corners district.

Meanwhile, the town says the denial was made simply because there was not enough sewer available for the project.

Wright was also the presiding judge who ruled July 8, 2003 to deny the Village Associates’ request for a preliminary injunction preventing the town from handing out sewer allocations until the lawsuit had been decided. At the time, Wright appeared favorably disposed to the town’s argument that Village Associates’ inability to land a sewer allocation was not the result of illegal tactics by the town.

McGuire said there are no active discussions between the town and the Village Associates regarding a possible settlement to the suit. However, the Selectboard met with attorney Paul Gillies in a closed-door meeting Monday and possible settlement terms might have been part of the discussion.