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Madowitz v. Woods at Killington Owners' Ass'n, Inc.

Supreme Court of Vermont

February 28, 2014

Richard Madowitz, Benedict Kohl as Co-Executor of the Estate of Douglas Kohl and Amherst Realty, LLC
The Woods at Killington Owners' Association, Inc

Page 572

Editorial Note:

This Opinion is subject to motion for reargument or formal revision before publication. See V.R.A.P. 40

On Appeal from Superior Court, Rutland Unit, Civil Division. Mary Miles Teachout, J.

Mitchell L. Pearl of Langrock Sperry & Wool, LLP, Middlebury, and John E. Garber of Weinberg & Garber, P.C., Northampton, Massachusetts, for Plaintiffs-Appellants.

Allan R. Keyes and James B. Anderson of Ryan Smith & Carbine, Ltd., Rutland, for Defendant-Appellee.

Present: Dooley, Skoglund and Burgess, JJ., and Zonay and Zimmerman (Ret.), Supr. JJ., Specially Assigned


Page 573

Dooley, J.

[¶1] Appellants Amherst Realty, LLC, Richard Madowitz, and the personal representatives of the Estate of Douglas Kohl (collectively, Amherst Realty) appeal a decision of the superior court granting summary judgment to The Woods at Killington Owners' Association (Association) on Amherst Realty's claim of breach of contract based on the Association's alleged interference with its development rights at The Woods at Killington. The Association cross-appeals the superior court's decision granting summary judgment to Amherst Realty on the Association's consumer fraud counterclaim. We affirm both decisions.

[¶2] This is the second time that we have ventured into the conflict between these parties. The background to the dispute is described in detail in Madowitz v. The Woods at Killington Owners' Assn . ( Madowitz I ), 2010 VT 37, ¶ ¶ 2-8, 188 Vt. 197, 6 A.3d 1117, which came to us on interlocutory appeal from the superior court's grant of partial summary judgment. The basic facts can be summarized as follows. The Woods at Killington is a condominium development created by a declaration of condominium filed on July 25, 1985. Condominium units were conveyed to private owners beginning in 1985. The original declaration of condominium, as well as an amended declaration from 1988, included a limited power of attorney provision whereby unit owners gave prior consent for the developer to amend the declaration to change the unit owner's percentage of undivided interest in the common areas by adding additional units. The original plan provided for 147 condominiums and residential homes, but only 107 were built initially. This case is about the consequences of the attempt and ultimate failure to build the other 40 units.

[¶3] The deeds to 105 of the units also contained a power of attorney provision, but it was limited in duration to ten years.[1] As noted in Madowitz I, this created a conflict between the terms of the declaration and the terms of the deeds as to the developer's right to continued development after the ten years expired. 188 Vt. 197, 2010 VT 37, ¶ 3, 6 A.3d 1117.

[¶4] The original developer, Killington 43 Associates, Inc., was foreclosed upon. Probos, Ltd. acquired the development rights. Amherst Realty then acquired the rights in 1994,[2] and applied for an amendment

Page 574

to extend the construction completion date of the existing Act 250 permit for the development to January 1, 2000. The Association did not take part in the proceeding, and the application was granted in June 1995. Throughout the late 1990s, Amherst Realty proceeded with its development plans, even as the ten-year window for development provided for in the deeds ticked away and conflict between the Association and Amherst Realty developed.[3] In June 1998, a representative of the Association informed a contractor for Amherst Realty that he was trespassing, directing him to stop his work on infrastructure for additional units and to leave the property. This incident prompted a series of negotiations between the parties over the following years, but no agreement was ever reached. The Association continued to oppose the development, generally refusing to cooperate with Amherst Realty and its contractors.

[¶5] Just before the January 1, 2000 deadline for construction completion under the Act 250 permit, Amherst Realty applied for another extension, and the Association opposed that application. The District Environmental Commission denied the amendment application, finding that Amherst Realty had failed to show that it had adequate development rights or that the Association should not have been joined as a co-applicant. In 2002, Amherst Realty filed a complaint in the superior court, seeking a declaratory judgment regarding the scope of its development rights and damages for lost profits for the Association's alleged interference with its development rights under the condominium declaration,[4] which it characterized as a breach of contract -- the contract being the condominium declaration as amended in 1988. In 2008, the superior court granted partial summary judgment to Amherst Realty on the declaratory judgment claim, concluding that the power of attorney and consent provisions controlled over the language of the deeds. On interlocutory appeal, relating only to the declaratory judgment decision, this Court affirmed.

[¶6] The superior court also denied Amherst Realty's motion for summary judgment on the interference claims. With respect to the claim that the Association breached its duties in the condominium declaration by opposing the extension of the Act 250 permit beyond January 1, 2000, and seeking the reopening of the 1995 extension, the court ruled:

The Association has the right, as the legal representative of the unit owners and/or as a unit owner in its own right, to come before the Environmental Commission to raise pertinent issues. Although the Association has not prevailed in its claim with respect to the legal effect of ...

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