The Vermont Supreme Court building on State Street in Montpelier on Tuesday, June 18. Photo by Glenn Russell/VTDigger
The Vermont Supreme Court on Wednesday heard arguments in a discrimination lawsuit filed by the state Human Rights Commission against the town of St. Johnsbury.
The case stems from a town Development Review Board decision during the Covid-19 pandemic. The commission told the appeals court that the board discriminated against St. Johnsbury resident Nicole Stone by denying a variance for a home structure in violation of the Vermont Fair Housing and Public Accommodations Act.
The town of St. Johnsbury, during a lower court hearing in January, argued that because Stone never appealed the decision to the environmental court, the decision should be final. The court judge agreed, and dismissed the case.
But the Human Rights Commission, a state body that works to promote civil and human rights in Vermont, argued before the Supreme Court on Wednesday that the issue of whether Stone was discriminated against should be remanded back to the court to be decided as a separate issue from whether a variance should have been granted.
“We have our independent right and requirement to enforce the Fair Housing and Public Accommodations Act,” said Big Hartman, the executive director and general counsel for the commission, in an interview.
Stone, who uses an electric wheelchair, sought a zoning variance for an outdoor gazebo-like structure during the Covid-19 pandemic to allow her and members of her household to meet with caregivers and case workers outdoors while protecting the wheelchair from rain or mud.
Stone and members of her household said they couldn’t meet with caregivers inside her home at the time because there wasn’t enough space to keep a safe distance from each other, according to court documents.
The structure was built, but neighbors complained to the town’s zoning administrator that the structure violated setback requirements, according to court documents. A member of Stone’s household then sought a variance to that requirement — essentially a request for an exemption — but the body denied the request.
VTDigger was not able to reach Stone for comment.
The Human Rights Commission later filed a complaint last year against St. Johnsbury in the Washington County Superior Court’s civil division, which argued that the town had discriminated against Stone by not granting the zoning variance for the structure.
But Superior Court Judge Timothy B. Tomasi dismissed the case during a hearing in January, determining that the zoning board’s decision became the final word on the matter because the case hadn’t been appealed. The variance decision “cannot be contested directly or indirectly, in this forum,” he wrote in court documents.
Stone’s remedy for the denial “was lost forever when no appeal was taken,” Tomasi wrote. Any determination by the court that the town may have violated the Vermont Fair Housing and Public Accommodations Act by denying the variance “would be an impermissible collateral attack on that final decision.”
“No matter what relief the HRC is seeking here, it is asking the court to rule that the variance should have been granted,” Tomasi wrote. “Only the DRB or, on review, the Environmental Division and the Supreme Court can do that.”
The Human Rights Commission appealed that decision to the Supreme Court. During the hearing on Wednesday, Mitchell Rotbert, senior counsel for the commission, argued that the claim that the town discriminated against Stone is separate from Stone’s variance claim — and that the superior court should rule on the former.
“The Commission is seeking an enforcement action for which there is no jurisdiction in the environmental division,” he said. “The basis of dismissal is the absence of jurisdiction, which is an error as a matter of law. It need not have been preserved by the commission because the commission is essentially arguing on behalf of the people of the state of Vermont for all kinds of benefits that don’t necessarily have anything to do with the benefits attached to Ms. Stone.”
John Klesch, an attorney representing the town of St. Johnsbury, said the superior court made the correct decision in dismissing the case. But Supreme Court justices appeared open to the idea that the variance claim and discrimination claim were in fact separate legal questions.
“They’re really two separate issues with two separate clients. They may be connected in some way, but the avenues in which you go through them are separate, are they not?” Supreme Court Justice William Cohen asked.
Klesch pointed to the superior court judge’s ruling, and said “it is impossible to separate a review of the Development Review Board’s decision whether a variance was necessary” from the question of whether Stone “was entitled to a variance.”
“But why does that throw the Human Rights Commission out of court?” retired Justice Denise Johnson, who was on the panel in Justice Karen Carroll’s absence, asked.
“It’s the civil division recognizing that it does not have authority under the jurisdiction statutes to review whether the DRB erred,” Klesch said.
Johnson suggested that it was “a totally different issue from whether or not they were going to grant a variance.”
Klesch later said that the town “does not quarrel with the importance of the (Human Rights Commission’s) mission to prevent discrimination,” but said there could have been a path forward if the parties had appealed to environmental court.
Hartman, in an interview after the hearing, said that “we feel it’s really important that the Human Rights Commission be able to exercise our authority to investigate complaints of discrimination” to “make sure that the rights of people with disabilities are not violated in superior court, rather than the environmental court, that has a very narrow set of expertise.”
The Supreme Court typically issues its decisions several months after hearing cases.
Read the story on VTDigger here: Vermont Supreme Court hears Human Rights Commission’s lawsuit against St. Johnsbury .