ADDISON — The Vermont Supreme Court has upheld a $27,213 civil fine imposed by the Environmental Court against three property owners in the town of Addison.
Barbara Ernst, her partner Barbara Supeno and her brother Francis Supeno had appealed the state order imposing a $27,213 penalty for both water and wastewater permit violations on their waterfront property on Lake Champlain.
The high court on Friday ruled the $27,213 fine was proper in light of the conduct of the three defendants.
“Although respondents view the evidence differently, the court based its findings on evidence in the record and provided a reasonable basis for its penalty assessment,” Associate Justice Marilyn Skoglund wrote in the 13-page decision.
Burlington attorney David Bond, who represents Ernst and the Supenos, told the Addison Independent on Wednesday there was disappointment over the decision, including that his clients thought the penalty was excessive.
Bond said the plan is to file an appeal with the U.S. Supreme Court.
The case is one in a string of litigation involving Barbara Ernst and Barbara Supeno and the property, court records show.
Barbara Ernst and Barbara Supeno settled a long-standing lawsuit last summer against the town of Addison and some local residents for alleged discrimination. The women, who say they are an openly gay couple, settled for $35,000 with the town’s insurance carrier, minus the deductible, records show. They also show the insurance carrier for a part-time Addison family paid $165,000 to settle the lawsuit filed in March 2014.
A third case filed by Barbara Ernst and Barbara Supeno in November 2015 against several state officials from the Agency of Natural Resources is still pending in Addison County Superior Court in Middlebury. A hearing is planned for next month in that case.
The supreme court decision involves the wastewater and water systems on the Addison property after the ANR noted the hookup created a risk that potentially polluted water could contaminate the public water supply.
Francis and Barbara Supeno jointly own 306 Fisher Pond Road, while Barbara Ernst and Barbara Supeno live adjacent at 330 Fisher Point Road. By October 2009 the Supeno siblings obtained a wastewater system and portable water supply permit, which authorized the replacement of a seasonal cottage at 306 Fisher Point Road with a year-round residence with a single bedroom.
The permit included the construction of an on-site well and wastewater disposal system. The water for 330 Fisher Point Road was through the public water system, the court noted.
The court found the following:
The Agency of Natural Resources in June 2014 received a complaint about the wastewater permit. ANR also became aware that the property was advertised as a two bedroom, two-bathroom rental. ANR sought to inspect the site, but the Supenos and Ernst never responded.
An ANR enforcement officer went to the property and Barbara Supeno refused entry. The ANR later went to court and got an order allowing them to enter the property on Sept. 9, 2014.
During the court-ordered visit, the ANR enforcement officer noted two water lines entering the basement at 306 Fisher Point Road. Ernst explained one line was from the on-site well and the other was a spliced connection into the town water line from 330 Fisher Point Road. She said the house could switch between the two water sources.
The enforcement officer also spotted a non-permitted bedroom in the basement to go with the bedroom approved on the second floor.
The agency filed an Emergency Administrative Order, or EAO, on Sept. 18, 2014, and the court granted the petition the same day. The EAO listed three violations:
1) Respondents failed to obtain a permit before modifying the rental home at 306 Fisher Point Road to add a second bedroom;
2) Respondents spliced into the public water supply line serving 330 Fisher Point Road and connected it to the rental property on 306 Fisher Point Road without obtaining a permit; and
3) Respondents created an unapproved cross-connection at the rental property, which allowed it to switch between the well water and the public water system and created a risk that potentially polluted water could contaminate the public water supply.
The respondent eventually requested a hearing, which was conducted in September 2014. The court modified the EAO to allow the trio to seek a permit from ANR to connect at 306 Fisher Point Road to the public water supply. The violations remained unchanged and the respondents never appealed the EAO, the court noted.
By June 2015, ANR issued an Administrative Order (AO) for the same violations contained in the EAO and assessed a $29,325 penalty.
Ernst and the Supenos requested an Environmental Court hearing on the penalty, which was eventually lowered to $27,213. The respondents appealed.
In the end, the supreme court ruled that Environmental Court Judge Thomas G. Walsh properly considered the case. The court said the respondents received due process and the amount of the penalty was proper.
SECOND MAJOR LAWSUIT
The town of Addison found itself the center of international news reports in March 2014 over a civil lawsuit filed by the two lesbian women claiming the municipality, the chairman of the Addison selectboard and others had discriminated against them and defamed the women.
Barbara Ernst and Barbara Supeno had filed their civil lawsuit in Addison Superior Court that month, but the case — with its considerable media fanfare in Vermont, across the nation and beyond — was transferred to U.S. District Court in Rutland.
After 350 motions, filings, memos, protective orders, minutes, rulings, findings and more being entered into the file in Rutland, the final document in the case, which has thousands of pages, shows the case was settled with no fanfare.
“Judgment is entered for Carol Kauffman and Linda Carrigan on all claims, Plaintiffs to take nothing,” Judge Geoffrey Crawford said in his ruling against Ernst and Supeno — or as they are known: “The Two Barbaras.”
“Claims against Defendants John Carrigan, Jeff Kauffman and the Town of Addison, and all remaining claims alleged in Plaintiffs Amended complaints … are dismissed with prejudice,” also wrote Crawford, meaning the women are unable to refile.
“Each party bears their own costs and attorneys’ fees,” Crawford said in his final sentence.
The lawsuit had claimed defamation, invasion of privacy, interfering with unspecified business relations, sexual orientation discrimination, common law retaliation, and violation of the Vermont common benefits clause for equal treatment.
Part of the focus of the lawsuit was a nine-page letter circulated to town residents titled “The TRUTH about the BARBARAS.” The letter referenced records, including liens filed in the Addison town offices, civil and small claims lawsuits at a state court in Burlington, the bankruptcy court filings in Rutland by Ernst, police reports from the Vermont state and Stow, Mass., police.
The case was headed to a potential two-week trial, probably last summer, but Crawford’s ruling ended the case that has caused a divide among some residents in the town of about 1,395.
SAYING LITTLE
With all the newspaper, TV, radio and online coverage at the time the case was filed, few people are willing to discuss how it got resolved.
Selectboard Chairman Jeff Kauffman, when reached by the Addison Independent, said “anything I would have to say is in the public record.” He did not elaborate, but had repeatedly denied all claims.
His wife, Barbara “Carol” Kauffman, who was among the named defendants, said she did nothing wrong and neither did her husband.
“My husband is an amazing Christian and he does not discriminate against people,” she told the Addison Independent.
Their Burlington lawyer Mick Leddy declined comment.
Attempts to reach two other named defendants — John and Linda Carrigan — also were unsuccessful. The Carrigans live in Essex, but own a summer camp adjacent to the plaintiffs’ land on Fisher Point Road, court records show.
Their defense lawyer, Harry R. Ryan III of Ryan Smith and Carbine in Rutland, said there was a multi-page confidentiality agreement signed by the parties in the case.
Mrs. Kauffman said while one claim was that she conspired with Mrs. Carrigan, after the first court hearing in Rutland in the lawsuit, she had to flag down Mrs. Carrigan to introduce herself.
Attempts to reach Ernst and Supeno were unsuccessful.
Bond, their attorney, agreed with Ryan that there was a signed confidentiality agreement and he would stand by it.
The Addison selectboard had to approve the global settlement to resolve the entire case. After conferring with one of its lawyers behind closed doors, the selectboard voted 5-0 on the settlement, meeting minutes from last year show. The minutes note the settlement includes “$165,000 from the Carrigans’ insurance carrier and $35,000 from the town’s insurance carrier, (Vermont League of Cities and Towns) less the town’s deductible amount.”
Out of all the filings, Ernst and Supeno claimed they were unfairly singled out because of what they perceived as an anti-gay bias by some people in the rural community.
They said in their 2014 lawsuit that they were an openly gay couple and had been committed to each other for 21 years. They bought the 8.5-acre lakefront property in Addison in 2004.
Ernst and Supeno said they were subjected to offensive language and rude gestures by neighbors trying to drive them out of town. The Barbaras alleged the neighbors were “openly abetted by several town officials.” They cited Mr. Kauffman through enforcement of the town’s zoning regulations and other ordinances.
Ernst and Supeno said Kauffman also was anti-gay because he served as the founder and pastor of Hope Community Fellowship, which the women said was “an ultraconservative Baptist Church.”
Carol Kauffman disputed that claim this week.
“I want people to know he was exonerated,” Mrs. Kauffman said. She said the Attorney General’s Office and the Human Rights Commission investigated her husband and found nothing.