Jipac, N.V. v. Silas

Jipac, N.V. v. Silas (2000-424); 174 Vt. 57; 800 A.2d 1092

[Filed 31-May-2002]


       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,
  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.


                               No. 2000-424


Jipac, N.V.	                                 Supreme Court

                                                 On Appeal from
     v.	                                         Orleans Superior Court


Paul Silas, David Currier and 	                 March Term, 2002
Marcel Roberts

Mary Miles Teachout, J.

Matthew T. Daly and Susy Rachel DiCello of Doremus, Kantor & Daly, Burlington,
  for Plaintiff-Appellant.

Robert M. Fairbanks of Gaston, Durrance & Fairbanks, Montpelier, for 
  Defendant-Appellee Silas.

Robert F. O'Neill of Gravel and Shea, Burlington, for Defendants-Appellees 
  Currier and Roberts.


PRESENT:  Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.


       DOOLEY, J.   Plaintiff Jipac, N.V., which sued defendants Paul Silas,
  David Currier, and  Marcel Roberts for default on a promissory note,
  appeals the superior court's decision to order  rescission of the parties'
  contract for the purchase of land that plaintiff subdivided and sold to 
  defendant Paul Silas without obtaining a required Act 250 permit.  We
  conclude that the superior  court acted within its discretion in ordering
  the remedy, and therefore affirm its judgment.



       On June 25, 1989, Jipac conveyed eight individual lots by eight
  separate warranty deeds to  Silas, who executed, in favor of Jipac, a
  $70,000 promissory note secured by a mortgage on the lots  conveyed.  The
  note was guaranteed by defendants Currier and Roberts.  As part of the
  transaction,  Jipac provided Silas with an Act 250 disclosure statement
  certifying facts indicating that the lots did  not require an Act 250
  permit.  See 10 V.S.A. § 6007(a) (before subdividing land, seller shall
  prepare  Act 250 disclosure statement that must be provided to buyer within
  ten days of entering into  purchase and sales agreement).

       Silas stopped making payments on the note in the summer of 1990.  In
  February 1992, Silas  informed Jipac that he was entitled to rescind the
  transaction because the State of Vermont had taken  the position that the
  conveyance violated Act 250.  In response, Jipac sued defendants on the
  note.   Defendants sought rescission of the transaction in a counterclaim
  based on the absence of an Act 250  permit.  After Jipac's motion for
  judgment on the pleadings was denied, the superior court action  was stayed
  pending resolution of Jipac's appeal to the environmental board of the
  district  commissioner's 1994 advisory opinion that an Act 250 permit was
  required for conveyance of the  lots.  In December 1997, the board upheld
  the district commissioner's ruling that an Act 250 permit  was required.

       The board rejected Jipac's position that it was exempt from Act 250
  regulation because it had  subdivided only nine lots.  Jipac now
  acknowledges that the sale of the subdivided lots was unlawful.  See 10
  V.S.A. § 6081(a).  Act 250 does not specify what private remedy applies to
  an unlawful  subdivision.  It does provide that a violation of the Act "is
  punishable by a fine of not more than  $500.00 for each day of the
  violation or imprisonment for not more than two years, or both."  Id.  §
  6003.

 

       On August 29, 2000, following a November 1999 hearing on the parties'
  opposing motions  for summary judgment, the superior court ordered
  rescission of the transaction.  The court canceled  the promissory note,
  voided the warranty deeds, and vested title to the property back to Jipac.  
  Defendants were awarded a judgment for sums paid on the note.  The total
  judgments for defendants  were just over $80,000. (FN1)  The court stated
  that rescission was the appropriate remedy because  the lots were not
  transferable as sold, and there is a presumption that a buyer intends to
  purchase land  that can be resold.  In the court's view, because nothing
  could be done with the lots absent an Act  250 permit, damages would not
  provide defendants with the benefit for which they bargained.

       On appeal, Jipac argues that defendants were not entitled to
  rescission because they failed to  mitigate their damages by seeking to
  obtain an Act 250 permit under an environmental board rule  providing an
  abbreviated process for innocent purchasers of land lacking a required
  permit.  See 10  V.S.A. § 6025(c) (requiring innocent purchaser rule). 
  According to Jipac, because defendants failed  to avail themselves of the
  so-called "innocent purchaser" rule, they are foreclosed from obtaining 
  rescission as a remedy.  Jipac contends that the trial court could have
  awarded defendants damages  for expenses involved in obtaining an Act 250
  permit, and thus rescission is not warranted.

       To support its arguments, Jipac relies primarily on Robitaille v.
  Rubin, 159 Vt. 152, 615 A.2d 1025 (1992) and Paradise Rest., Inc. v.
  Somerset Enters., 164 Vt. 405, 671 A.2d 1258 (1995).   We conclude that
  Robitaille and MacDonald v. Roderick, 158 Vt. 1, 603 A.2d 369 (1992) are
  the  critical precedents, but that the part of the analysis in Robitaille
  relied upon by Jipac must be  overruled.  We further conclude that,
  weighing the pertinent criteria, a private remedy is warranted 

 

  for Jipac's Act 250 violation, and that the superior court acted within its
  discretion in ordering  rescission.

       In Robitaille, the plaintiffs sold a house to the defendants, but
  failed to comply with a  provision of the applicable Act 250 permit
  requiring the sellers to show the permit, the approved plot  plan, and the
  certification of compliance to the buyers.  When the defendants refused to
  close the  sale, the plaintiffs sued on the purchase and sales contract. 
  The superior court awarded judgment for  the defendants, ruling that the
  failure to comply with the permit condition gave the defendants the  right
  to rescind the contract.  In reversing the judgment, we noted that the
  Legislature had not created  a rescission remedy for failure to comply with
  a permit condition, although it had created a rescission  remedy for
  certain other violations of Act 250, and held that we would not adjudicate
  a remedy into  existence where the Legislature had not created one. 
  Robitaille, 159 Vt. at 154, 615 A.2d  at 1025-26.

       We went on, however, to discuss an alternative theory on which
  defendants might prevail - illegal contract.  Id.  Relying upon MacDonald
  v. Roderick, 158 Vt. 1, 603 A.2d 369, we held that  the court could refuse
  to enforce the contract if the violation of the permit condition tainted
  the  agreement or made its enforcement unfair.  Robitaille, 159 Vt. at 154,
  615 A.2d  at 1026.  Because  there was no evidence on whether the sellers'
  failure to make the required disclosures made the  enforcement of the
  contract unfair, we remanded for further proceedings.  Id.

       In MacDonald, we reasoned that regulatory requirements represent "a
  public policy that may  be used as a defense" in an appropriate case.  158
  Vt. at 7, 603 A.2d  at 372.  In determining what is  an appropriate case, we
  adopted the Restatement approach, id., which requires weighing the public 
  policy against enforcement - the strength of the policy, the likelihood
  that a refusal to enforce will 

 

  further that policy, the seriousness of any misconduct involved, and the
  directness of the connection  between that misconduct and the term of the
  contract to be enforced - against the interests in favor of  enforcement of
  the promise - the parties' justified expectations, any forfeiture that
  would result, and  any public interest in enforcement.  See Restatement
  (Second) of Contracts § 178 (1981).

       MacDonald involved a suit for a real estate sales commission in which
  the defendant alleged  that the listing agreement used by the broker
  violated certain rules of the Vermont Real Estate  Commission.  We held
  that the violation of a rule requiring a written listing agreement would
  always  create a defense under the standards set forth above, but that the
  violation of a requirement to use  specific language or to include a
  specific term will not provide a defense unless there is a nexus  between
  the violation and the dispute between the parties such that "the violation
  makes recovery  unfair in the particular case before the court." 
  MacDonald, 158 Vt. at 7, 603 A.2d  at 373.

       According to Jipac, rescission is unavailable in this case because
  Robitaille stands for the  proposition that rescission is never a proper
  remedy for a violation of Act 250 without specific  statutory
  authorization.  Because Robitaille can be read as broadly as Jipac
  suggests, we have  reconsidered its rationale.  On reflection, we conclude
  that the part of the Robitaille opinion  discussing rescission was in
  error.

       The statutory language on which we relied in Robitaille makes the
  purchase and sale of land  "unenforceable" because of a violation of Act
  250 in certain circumstances.  10 V.S.A. § 6007(a).   As many of our cases
  make clear, the term "unenforceable" is a description of the remedy for an 
  illegal contract and is normally synonymous with "void."  See My Sister's
  Place v. City of  Burlington, 139 Vt. 602, 613, 433 A.2d 275, 282 (1981)
  (an illegal contract "may be held void and  unenforceable").  Typically,
  statutes use the terms "unenforceable" and "void" together.  See, e.g., 

 

  3 V.S.A. § 964; 10 V.S.A. § 6262(c).  As more fully discussed below, the
  usual remedy for an illegal  or unenforceable contract is to leave the
  parties as the court finds them at the time the illegality is  discovered,
  not to restore them to the same position they would have been had the
  contract never  existed.  See Pierce v. Kibbee, 51 Vt. 559, 561 (1879)
  (illegal contracts "are void, and courts will  neither aid in enforcing
  them, nor in the recovery of money paid in the performance of them").  
  Rescission, on the other hand, is not ordinarily an available remedy in
  connection with an illegal  contract.  See Licking County v. Maharg, 575 N.E.2d 529, 531 (Ohio Ct. App. 1990).  Thus,  notwithstanding our
  suggestion to the contrary in Robitaille, § 6007(a) should not be construed
  as  specifically authorizing the remedy of rescission.

       The discussion of rescission was also unnecessary in Robitaille.  The
  contract to sell the land  was unexecuted.  The plaintiffs were suing the
  defendants for damages for breach of the purchase  and sale contract.  To
  the extent the defendants could demonstrate the right to relief under the 
  MacDonald factors, the plaintiffs' failure to comply with the permit
  conditions represented an  affirmative defense  to the plaintiffs'
  recovery.  The defendants obtained no advantage by labeling  the relief
  they wanted as "rescission."

       Properly understood, the provisions of 10 V.S.A. § 6007(a) that make
  land sales contracts  unenforceable in certain circumstances represent
  specific instances where the Legislature has done  something akin to the
  balancing set forth in MacDonald and decided that the buyer should have a 
  private remedy.  We do not believe, however, that these provisions preclude
  the application of a  private remedy in other instances of statutory
  violations where the MacDonald factors warrant it.   Unlike the specific
  instances covered by the statute, however, we must decide on a case-by-case 
  basis whether and, if so, what private remedy is available.

 

       We conclude that a balance of the factors outlined in MacDonald
  supports the trial court's  decision that there be a private remedy in this
  case.  In the findings and declaration of intent  accompanying Act 250, the
  Legislature expressed the underlying policy:

    [T]he legislature declares that in order to protect and conserve
    the  lands and the environment of the state and to insure that
    these lands  and environment are devoted to uses which are not
    detrimental to the  public welfare and interests, the state shall,
    in the interest of the  public health, safety and welfare,
    exercise its power by creating a  state environmental board and
    district environmental commissions  conferring upon them the power
    to regulate the use of lands . . . .

  1969, No. 250 (Adj. Sess.), § 1; see In re Pilgrim Partnership, 153 Vt.
  594, 596, 572 A.2d 909, 910  (1990) (one purpose of Act 250 is to insure
  that lands are devoted to uses which are not detrimental  to public welfare
  and interests).  The Act specifically imposes the responsibility for
  compliance with  respect to subdivided land on the seller.  See 10 V.S.A. §
  6081(a).

       We view the policy involved in this case as exceptionally strong and
  certainly not a "minor  administrative regulation[] or local ordinance[]
  that may not be indicative of the general welfare."   Restatement (Second)
  of Contracts § 178 cmt. c.  That important policy is directly undermined
  when  sellers are able to evade Act 250 review of lands intended to be
  covered by the statute.  Refusing to  allow sellers to benefit from the
  contract for the sale of land in such circumstances is a powerful 
  incentive for them to comply with Act 250.  Indeed, without some private
  remedy, a poorly  capitalized corporation formed solely to hold land may
  have little incentive to seek an Act 250  permit. (FN2)

 

       The Legislature was sufficiently concerned with the sale of subdivided
  land without an Act  250 permit that it required "the seller or other
  person dividing or partitioning the land" to prepare and  give to the
  purchaser an Act 250 disclosure statement that includes information bearing
  on whether a  permit is required.  10 V.S.A. § 6007(a).  Clearly, the
  Legislature's intent was to prevent exactly the  situation that occurred
  here - a sale of subdivided land without a required Act 250 permit.

       Jipac argues, however, that the Legislature knows how to provide a
  remedy when it wants to  and did so in § 6007(a) when specified
  circumstances arise, which do not include the circumstances  present in
  this case.  Thus, according to Jipac, no remedy is available.  We recognize
  that the  Legislature explicitly made purchase and sales agreements
  unenforceable in only two circumstances:  (1) when the seller fails to
  provide the disclosure statement, and (2) when the seller provides the 
  buyer with previously undisclosed information indicating that a transfer
  "is or may be subject to"  Act 250.  Id.  We further acknowledge that these
  circumstances are similar to what occurred here,  and yet the statute
  provides no explicit remedy for the instant situation.

       On the other hand, Jipac's conduct in this case plainly falls within
  the area of the  Legislature's policy concern, such that a holding that the
  buyer has no remedy would seriously  undermine the intended policy.  Act
  250 required Jipac to disclose the names "of all individuals and  entities
  affiliated with the seller . . . for the purpose of deriving profit or
  consideration, or acquiring  any other beneficial interest from the
  partition or division of the land, as that affiliation is  conditioned and
  limited according to the definition of 'person' in section 6001(14) of this
  title."  10  V.S.A. § 6007(a)(2).  In its decision holding that the instant
  transaction required an Act 250 permit,  the environmental board concluded
  that such affiliated individuals existed, and that their actions 

 

  created Act 250 jurisdiction over the subdivision.  Disclosure of the
  individuals involved would have  shown that the sale of the subdivision
  "may be subject to"Act 250, a specific ground for relief.

       Ironically, Jipac would have us hold that a private remedy for an Act
  250 violation is  available if a seller fails to make a disclosure
  statement or the disclosure statement indicates that a  permit is required,
  but that the buyer has no remedy if the disclosure statement fails to
  disclose facts  that would show the need for an Act 250 permit.  In effect,
  Jipac asks us to hold that its own  violation of the statute deprives
  defendants of any private remedy.  We decline to do so.  Section  6007 does
  not explicitly provide a private remedy for violations such as the one that
  occurred here,  but the Legislature clearly established in that provision a
  direct connection between the violation of  Act 250 and the
  unenforceability of contracts requiring buyers to pay for land sold to them
  in  violation of Act 250.

       We recognize that the Restatement factors must be balanced against
  Jipac's "interest in the  enforcement" of the note, Restatement (Second) of
  Contracts § 178(2), and that Jipac's justified  expectation in being paid
  on the note is particularly strong in a case like this where the contract
  is  executed and the buyers have legal title to the land.  Nevertheless, we
  conclude that the public policy  against enforcement in these circumstances
  clearly outweighs Jipac's interest in enforcement of the  note.  See id. §
  178(1).  Thus, defendants are entitled to a private remedy.  The adverse
  effect on  Jipac's interests can be mitigated through the remedy that is
  fashioned.

       Before considering the nature of that remedy, we address Jipac's
  argument that defendants  are not entitled to a private remedy because
  Silas could easily obtain the required permit under a  special procedure
  for "innocent purchasers," and the Legislature intended they have only that
  remedy  in these circumstances.  In making this argument, Jipac relies on
  10 V.S.A. § 6025(c) and the 

 

  environmental board's implementing rule, Rule 60.  Jipac calls this a
  simplified process that would  give defendants an Act 250 permit within a
  short period of time.

       The special process on which Jipac relies was added by the Legislature
  in 1991 to deal with  situations similar to those present here - an
  unsuspecting buyer purchased lots subdivided and sold  without the
  necessary Act 250 permit.  For pre-1991 sales to "innocent purchasers" as
  defined in the  law, (FN3) the legislation required the environmental board
  to create a "modified process" so that  the purchaser could apply for an
  Act 250 permit "in light of the existing improvements, facts, and 
  circumstances that pertain to the lots."  10 V.S.A. § 6025(c)(2).  The
  requirements of Act 250  generally are modified only to the extent needed
  to issue the permits.  Id.  Thus, Rule 60 specifies  that a "complete
  application addressing all ten criteria of 10 V.S.A. § 6086(a) shall be
  filed by the  qualified purchaser or purchasers seeking relief," and
  "[p]ermit decisions will be based upon  consideration of the requirements
  of the criteria of 10 V.S.A. § 6086(a)(1) - (10), as well as existing 
  improvements, facts, and circumstances of each case."  Vermont Envtl. Bd.
  Rule 60(B), in 6 Code of  Vermont Rules 12003001-39 (2001).

       Jipac has not shown that this special process would be of much
  assistance to Silas.  The main  impact of the "innocent purchaser"
  provision is to require the Board to judge a subdivision in light of  its
  conditions at the time the need for a permit is discovered rather than
  requiring the owner to seek  approval for those existing conditions.  In
  this case, there is no indication that the subdivided lots  have been
  developed, so that the existing conditions at the time of the discovery of
  the need for 

 

  a permit are the same as the conditions at the time of the sale to Silas. 
  In these circumstances, the  modification of the permitting requirements
  does not help defendants.

       Even if the "innocent purchaser" procedure was of assistance to
  defendants, we could not  accept it as a remedy that displaced any private
  remedy between defendants and Jipac.  There is  nothing in the statutory
  language suggesting that the "innocent purchaser" provision was intended to 
  be an exclusive remedy.  More importantly, Silas purchased a subdivision
  that he understood to be  exempt from Act 250 regulatory review.  But the
  determination that the purchase was not exempt  from Act 250 jurisdiction
  changed the essence of what Silas purchased.  In our view, Silas was 
  entitled to evaluate the significance of that change before he purchased
  the land.  Therefore, the  "innocent purchaser" provision does not affect
  our evaluation under the MacDonald balancing  standards.

       We return then to the question of what remedy is appropriate for this
  case.  We start by  acknowledging that rescission is not ordinarily
  considered a remedy for an illegal contract.  The  traditional remedy is to
  leave the parties where the court finds them when the suit is brought.  See 
  Pierce, 51 Vt. at 561; see also Montgomery v. Browder, 930 S.W.2d 772, 778
  (Tex. App. 1996)  ("Courts are no more likely to help a party attempting to
  enforce an illegal contract than they are  disposed in favor of the party
  who uses the illegality to avoid liability.").  This regime would, of 
  course, work a significant forfeiture in this case.  See Yank v. Juhrend,
  729 P.2d 941, 944 (Ariz. Ct.  App. 1986) (denying seller of property the
  ability to enforce promissory note and mortgage, based on  failure to
  obtain a subdivision permit, would cause a forfeiture; presumption is
  against a forfeiture);  see also Restatement (Second) of Contracts §
  178(2)(b) (in weighing interest in enforcement 

 

  of contract, account must be taken of any forfeiture that would result if
  enforcement were denied).   Jipac would be unable to enforce the note, see
  Pierce, 51 Vt. at 562, or the mortgage based on the  note, see id. at 563,
  allowing defendants to keep the land.  Defendants would be unable to obtain 
  restitution of the amount they paid on the note.

       Even under our traditional law, however, the court's options for a
  remedy in this case are  broadened because of the nature of the violation. 
  See Licking County, 575 N.E.2d  at 531 (courts  will afford relief from
  illegal contracts "where equity requires it, to the more innocent party
  even  after the agreement has been executed") (citation omitted).  Although
  the instant transaction was  made in violation of the law, it was Jipac's
  obligation to comply with the law.  The statutory  requirements are created
  for the protection of both the public generally and the purchaser.  All of
  the  information bearing on whether an Act 250 permit was required was
  known to Jipac.  By arguing  that Silas was an innocent purchaser, Jipac
  has conceded that Silas did not know that the subdivision  and sale of the
  lots violated Act 250.  Thus, only Jipac had the information from which to
  determine  whether a permit was needed.

       In traditional terms, the parties are not in pari delicto.  See
  Harrington v. Grant, 54 Vt. 236,  239 (1881).  That is, they have "very
  different degrees in their guilt" for the violation of the law.  Id.  at
  240.  In light of Jipac's obligation under the law to obtain the permit,
  defendants' ignorance of the  facts necessary to determine the need for the
  permit, and the partial purpose of the law to protect  buyers, the primary
  guilt for the violation of the law lies with Jipac.

       In these circumstances, the innocent party may be entitled to
  restitution for any consideration  given as part of the illegal
  transaction.  See Capo v. Century Life Ins. Co., 610 P.2d 1202, 1206  (N.M.
  1980); see generally Restatement (Second) of Contracts § 198(b); 6A A.
  Corbin, Corbin on  Contracts § 1540 (1962); II G. Palmer, The Law of
  Restitution § 8.6, at 202, 205-10 (1978).  If the

 

  purchase and sales contract were unexecuted, but the buyers had made a
  deposit, we might go further  than denying the seller the ability to
  enforce the contract.  We might, in addition, order restitution of  the
  deposit because of the differential culpability of the parties.

       But here, the situation is more complicated.  The contract is fully
  executed.  The sales price  of the property was $94,000 - $70,000 of which
  was reflected in the note and the mortgage to secure  the note, and the
  rest was down payment.  Presumably, the property is more valuable today,
  although  the purchase price assumed no costs were necessary to comply with
  Act 250.  Jipac's initial suit was  for $70,000 plus unpaid interest.  The
  trial court awarded defendants $80,259 in restitution,  reflecting the down
  payment, interest and property taxes paid by Paul Silas, taxes paid by
  David  Currier and Marcel Roberts, and interest on the other items. (FN4)

       If we were to allow defendants to have restitution and retain title to
  the property free of any  claim by Jipac, defendants would be unjustly
  enriched, and Jipac would suffer a forfeiture of its  security interest. 
  See II G. Palmer, supra, § 8.8, at 230-31.  We do not believe that this
  harsh of a  remedy is compelled by the nature of the wrong or the need to
  deter future illegality.  See Gallagher  v. Leary, 164 Vt. 633, 634, 674 A.2d 787, 788 (1996) (mem.) (allowing client to recover payments  made to
  unlicensed architect and to keep benefit of architect's services was
  unnecessary "to  effectuate the policy of the licensing" law); see also
  Walsh v. Brousseau, 815 P.2d 828, 832 (Wash.

 

  Ct. App. 1991) (key concern is "whether the court's decision will be likely
  to prevent the illegal  transactions at issue from occurring in the
  future").

       Rather, we believe that there are two remedy options which would be
  just in this case.  The  first would be to deny defendants restitution, but
  also deny Jipac recovery - that is, the traditional  illegal contract
  remedy result.  The second is to allow restitution to defendants, but to
  require  defendants to retransfer the land to Jipac as a condition of
  restitution.  Although the second option is  less traditional, it is
  warranted in some circumstances.  See Venisek v. Draski, 150 N.W.2d 347,
  353-54 (Wis. 1967); see generally 8 S. Williston, Law of Contracts §
  19:75, at 569 (4th ed. 1998) (in  some instances "a sound public policy may
  demand either the enforcement of an executory illegal  agreement, or the
  rescission of an executed one"); Restatement (Second) of Contracts § 198
  cmt. b  (restitution for person not equally in wrong is subject to
  restitution rules of §§ 370-377), § 372  (where specific restitution is
  granted, court can condition remedy "on return of . . . anything that the 
  party claiming restitution has received").  This alternative remedy is the
  equivalent of rescission.   See 1 D. Dobbs, Law of Remedies § 4.3(6), at
  614 (2d ed. 1993) ("Rescission is thus less a remedy  and more a matter of
  the conceptual apparatus that leads to the remedy: the contract is being
  unmade,  so restoration of benefits received under the contract seems to
  follow.").

       We are mindful of, but reject, Jipac's argument that rescission is
  impractical because  defendants failed to raise the need for a permit in a
  timely fashion and over ten years has gone by  since the sale.  See
  Paradise Rest., 164 Vt. at 411, 671 A.2d  at 1263.  The lapse of time may be 
  relevant to the nature of the remedy, but it cannot "somehow overcome the
  illegality of the contract  itself."  J. Gus Lallande, Inc., 197 B.R. 406, 409 (D.P.R. 1996).  Moreover, the remedy options and  considerations here
  are different from those in Paradise Restaurant.  The greatest part of the
  delay 

 

  in this case was caused by Jipac's unsuccessful pursuit of a jurisdictional
  ruling from the  environmental board and its appeal here.

       In light of the amount of defendants' restitution award, it is unclear
  whether the rescission  remedy is more or less advantageous to Jipac than
  denying any remedy to any party.  The advantage  of the
  restitution/rescission remedy is that it places the cost and risk created
  by the applicability of  Act 250 on Jipac, where it properly belongs. 
  Considering defendants' request for that remedy, we  believe that under the
  unique circumstances of this case the court had the discretion to order
  mutual  restitution - that is, rescission - as the most practical response
  to the illegal conduct and the equities  of the parties.

       Affirmed.



                                       FOR THE COURT:



                                       ________________________________________
                                       Associate Justice


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                                  Footnotes


FN1.  Paul Silas obtained a judgment for $58,631.  David Currier and Marcel
  Roberts received  judgments for $21,628.

FN2.  Although there is no evidence of deliberate misconduct in this case,
  Jipac did attempt to  evade Act 250 by placing ownership of land in
  numerous separate, but affiliated, corporations and  subdividing the land
  into nine lots, one short of the number that would have triggered Act 250 
  review.

FN3.  It appears undisputed that Paul Silas was an innocent purchaser.  In
  view of the findings of  the environmental board, it is doubtful that
  defendants Currier or Roberts were innocent, as they  were involved in
  financing other transactions pertaining to land held by a Netherland
  Antilles  corporation.

FN4.  As indicated in footnote 2, the involvement of defendants Currier and
  Roberts in other  financing contracts for sales of land from affiliated
  Netherland Antilles corporations may put them in  a different position from
  defendant Silas with respect to the availability of restitution.  Jipac has
  not,  however, separately contested the restitution award to them or raised
  any issue here about the  amount of the restitution award to defendants.