In re Petition of VT Electric Cooperative, Inc.

In re Petition of Vermont Electric Cooperative, Inc.  (93-525); 165 Vt 634;
687 A.2d 883

[Opinion Filed 29-Apr-1994]

[Motion for Reargument Denied 24-Oct-1996]


                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 93-525

                              MARCH TERM, 1994


 Petition of Vermont Electric      }          APPEALED FROM:
 Cooperative, Inc.                 }
                                   }
                                   }          Public Service Board
                                   }
                                   }          DOCKET NO. 5246

              In the above entitled cause the Clerk will enter:

      This case arises out of an attempt by the Village of Derby Line, under
 the Municipal Enabling Act, 30 V.S.A. {{ 2901-2924, to acquire Vermont
 Electric Cooperative's facilities serving the Village.  The idea for the
 attempt originated at a meeting of the Village trustees in February 1986.
 At a March 1986 informational meeting, the Village trustees decided to place
 on the annual village meeting ballot the question whether the Village should
 allocate $200,000.00 to acquire VEC's plant in Derby Line.  At the village
 meeting the Derby Line voters overwhelmingly approved acquisition of the
 plant.  On April 2, 1986, a day later, the trustees notified VEC by letter,
 as required by 30 V.S.A. { 2906, and inquired if VEC was willing to sell its
 plant in the village.  On June 26, 1986, under 30 V.S.A. { 2907, VEC
 responded to the Village's inquiry.

      In a proceeding before the Public Service Board the Village asserted
 that VEC's response was negative and that it was consequently authorized to
 take the plant by eminent domain.  30 V.S.A. { 2910.  VEC, however, claimed
 its response was affirmative and petitioned the Board to determine the
 amount of plant and property to be purchased by the Village under 30 V.S.A.
 { 2909.  In its December 14, 1988 Order, the Board concluded that VEC's
 response to the Village was affirmative under 30 V.S.A. { 2907 and remanded
 VEC's petition to the hearing examiner for further proceedings.

      In 1990, both parties filed testimony before the examiner and, in
 January 1992, a hearing schedule was set.  Finally, in February 1992, VEC
 provided a detailed list of electric plant that it proposed to transfer to
 the Village in response to the April 2, 1986 notice.  Notwithstanding this
 proposal, on May 25, 1992, VEC filed a motion to dismiss the proceedings
 relating to the Village's attempt to acquire the electric facilities.  VEC
 alleged the meetings conducted by the Village preceding the April 1, 1986
 vote and the April 2, 1986 action of the trustees in signing the notice
 failed to comply with statutory requirements of the Municipal Enabling Act
 and Vermont's Open Meeting Law.  30 V.S.A. Ch. 79; 1 V.S.A. { 312.

      The hearing examiner determined that the February 1986 and March 1986
 meetings were valid but that the April 2, 1986 signing of the notice to VEC

 

 failed to comply with Vermont's Open Meeting Law.  The Board upheld the
 hearing examiner's determination and dismissed the petition.

      The Village appeals the determination that the action of signing the
 April 2 notice failed to comply with the Open Meeting Law.  VEC cross-
 appeals the Board's determination that the February and March meetings
 complied with the Municipal Enabling Act and the Open Meeting Law.  We
 reverse the Board's decision with respect to the April 2, 1986 notice and
 affirm the cross-appeal.

      The doctrine of laches precludes VEC's motion to dismiss.  "Laches is
 the failure to assert a right for an unreasonable and unexplained period of
 time when the delay has been prejudicial to the adverse party, rendering it
 inequitable to enforce the right."  Stamato v. Quazzo, 139 Vt. 155, 157, 423 A.2d 1201, 1203 (1980).  "Circumstances which constitute laches involve
 questions of fact with the ultimate conclusion to be based thereon being a
 question of law."  Laird Properties v. Mad River Corp., 131 Vt. 268, 282,
 305 A.2d 562, 570 (1973).  "However, laches is so much a matter of
 discretion by the lower court" that its action will not be disturbed unless
 "clearly shown to be wrong."  Id.

      The Board stated that laches was one of Derby Lines most important
 arguments against the proposed motion but concluded that "the facts would
 [not] support a finding" of laches.  We disagree with the Board's conclusion
 and hold that the facts support a finding of laches as a matter of law.
 Notably, the fact that VEC had informed Derby Line in 1986 that it
 "explicitly reserved judgment on the legal validity of the actions taken by
 the village," did not reserve an unlimited license to assert procedural
 violations into the indefinite future.  Otherwise, parties in positions
 similar to VEC could always wait and see how the case developed, and then
 make procedural claims as "trump cards."  Such a practice is fraught with
 delays and undue expenses.

      In any event, over six years elapsed between the April 1, 1986 vote and
 VEC's motion to dismiss.  A six-year delay before asserting procedural
 violations is patently unreasonable.  VEC argues that the Village is
 responsible for this delay because it failed to comply with VEC's discovery
 requests.  VEC seems to be claiming that the Village refused to produce
 documents which never existed.  There is no connection here between the
 delay and Derby Line's alleged failure to respond to discovery requests.
 Derby Line made all pertinent records available when VEC sought information
 on its notices and meetings with respect to the acquisition.  Not until 1992
 did VEC visit Derby Line to review those materials.  For six years VEC did
 nothing to further discovery.

      The delay worked to the disadvantage of Derby Line.  Prejudice
 resulting from the delay may be actual or implied.  Stone v. Blake, 118 Vt.
 424, 428, 110 A.2d 702, 705 (1955).  Here, considerable time and money will
 be wasted by a grant of VEC's motion.  In Derby Line, popular support for
 the acquisition would likely diminish and voters may not again approve of
 the acquisition, despite having overwhelmingly approved it in 1986.  Even if
 they did, however, they will have been foreclosed from enjoying the benefits

 

 of the acquisition while they duplicate the lengthy and expensive process of
 acquisition.  See In re Town of Springfield, 143 Vt. 483, 487, 469 A.2d 375,
 376 (1983)  (purpose of Municipal Enabling Act is to fulfill a need for
 electric service at economic rates).  To require Derby Line to retrace its
 steps throughout this process would put an undue burden on its resources.
 We hold that the facts support a finding of laches.  Accordingly, the
 decision granting VEC's motion to dismiss is reversed.

      On the cross-appeal, VEC argues that both the February 1986 and the
 March 1986 meetings were void for a number of reasons.  First, according to
 VEC, the trustees failed to keep adequate minutes at the meetings.  1 V.S.A.
 { 312(b)(1).  Second, VEC argues that the February meeting was not properly
 noticed.  VEC finally argues that Derby Line's notice of the March 1986
 informational meeting was inadequate because it was not given in the same
 manner as it is given for the annual meeting.  30 V.S.A. { 2904.  These
 issues raised in VEC's cross-appeal also fail because laches, based on the
 years of delay in raising them, precludes their consideration.

      Reversed.

                                    BY THE COURT:


                                    _______________________________________
                                    Frederic W. Allen, Chief Justice


                                    _______________________________________
                                    Ernest W. Gibson III, Associate Justice



                                    _______________________________________
                                    John A. Dooley, Associate Justice


                                    _______________________________________
                                    James L. Morse, Associate Justice


                                    _______________________________________
                                    Louis P. Peck, Associate Justice (Ret.),
                                    Specially Assigned


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