Nichols v. Agency of Environmental Conservation

EO.92-403; 160 Vt. 620; 627 A.2d 858        


                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 92-403

                               MAY TERM, 1993


 Carolyn and Leonard Nichols       }          APPEALED FROM:
                                   }
      v.                           }          Franklin Superior Court
                                   }
 Agency of Environmental           }
 Conservation                      }          DOCKET NOS. S410-89FC
                                                          S91-90FC

 Vermont Transportation Board      }
                                   }
      v.                           }
                                   }
 Leonard and Carolyn Nichols       }


              In the above entitled cause the Clerk will enter:

      The sole issue in this appeal is whether the superior court has the
 authority under V.R.C.P. 70 to appoint a master to effectuate compliance
 with an order that does not involve the conveyance of real property.  We
 hold that the court has this authority and affirm.

      The Vermont Agency of Natural Resources and the Vermont Transportation
 Board brought separate actions against appellants Carolyn and Leonard
 Nichols for violations of Act 250, 10 V.S.A. {{ 6001-6092, and the Vermont
 Junkyard Law, 24 V.S.A. {{ 2241-2283.  The cases were consolidated because
 they both involved allegations that appellants' operation of two junkyards
 in the Town of Berkshire was unlawful.  Judgment was entered on November
 12, 1991, pursuant to a stipulation submitted to the court by the parties.
 The judgment ordered appellants to remove all junk from their East Berkshire
 property within 90 days and to discontinue use of the site as a junkyard.
 It further ordered that, in the event appellants had not obtained all
 permits necessary to operate the West Berkshire junkyard within 120 days,
 they should remove all junk within 150 days and discontinue use of the site
 as a junkyard.

      After a compliance hearing in May 1992, the court found that appellants
 had not stopped using the two Berkshire sites for their junkyard business
 and that the time to comply with the November 12, 1991 order had expired.
 It therefore held that appellants had failed to comply with the order, and,
 pursuant to V.R.C.P. 70, the court appointed a special master to ensure
 their compliance.  The master was authorized to remove all junk from both
 the East and West Berkshire sites.  Appellants appeal from this order,
 arguing that the court had no authority under V.R.C.P. 70 to appoint a
 master to carry out acts other than conveying real property.

      V.R.C.P. 70 provides in part:

           If a judgment directs a party to execute a conveyance of
           land or to deliver deeds or other documents or to
           perform any other specific act and the party fails to
           comply within the time specified, the court may direct
           the act to be done at the cost of the disobedient party
           by some other person appointed by the court and the act
           when so done has like effect as if done by the party . .
           . .

 The plain language of the rule allows the court to appoint a master to
 convey land or "perform any other specific act."  There is nothing in the
 rule that would limit its use to conveyances of land.  See Morales Feliciano
 v. Hernandez Colon, 771 F. Supp. 11, 13 (D. P.R. 1991) ("[t]he use of Rule
 70 is not limited to conveyances of land"; construing identical language in
 federal rule).  Nor have appellants cited any authority to support their
 position.

      We conclude that the court was authorized under V.R.C.P. 70 to appoint
 a master to perform the acts necessary to ensure appellants' compliance with
 the court's November 1991 order.  See Town of Kittery v. Dineen, 591 A.2d 236, 238 (Me. 1991) (upholding order to appoint receiver if defendant failed
 to remove junk cars within 60 days).

      Affirmed.



                                    BY THE COURT:


                                    _______________________________________
                                    Frederic W. Allen, Chief Justice

                                    _______________________________________
                                    Ernest W. Gibson III, Associate Justice

                                    _______________________________________
                                    John A. Dooley, Associate Justice

                                    _______________________________________
                                    James L. Morse, Associate Justice
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