burchfield v burlington housing bd

7ermont 	Superior 	Court
Filed 	09/10/26
Chittenden Unit
VERMONT 	SUPERIOR 	COURT
Chittenden 	Unit
175 	Main 	Street
Burlington 	VT 	05401
802-863-3467
www.vermontjudiciary.org
CIVIL 	DIVISION
Case 	No. 	25-CV-5170
Burchfield 	Management 	Company, 	LLC 	v. 	City 	of Burlington 	Housing 	Board 	of Review, 	et 	al.
DECISION 	ON 	HOUSING 	BOARD 	CROSS-APPEALS 	AND 	PENDING 	MOTIONS
This 	case 	involves 	cross-appeals 	from 	a 	decision 	by 	the 	Burlington 	Housing 	Board 	of
Review 	about 	a 	security 	deposit. 	The 	property 	manager, 	Appellant 	Burchfield 	Management
Company, 	LLC 	("Burchfield"), 	appeals 	the 	Board's 	order 	to return 	double 	the 	amount 	of the
deposit. 	The 	tenants, 	Appellees/Cross-Appellants 	Jacquelyn 	Burrell 	and 	Isaac 	Bendavid
("Tenants"), 	appeal 	the 	Board's 	denial 	of their 	request 	for 	attorney's 	fees.
Burchfield 	also 	moves 	to 	dismiss 	the 	City 	of Burlington 	and 	strike 	its 	brief 	from 	this
appeal 	(Mot. 	3) 	and 	to 	restyle 	the 	caption 	reflecting 	that 	dismissal 	(Mot. 	2). 	Tenants 	seek
sanctions 	against 	Burchfield 	for 	bringing 	the 	motions 	to 	dismiss 	and 	to 	restyle 	the 	caption 	(Mot.
4). 	All 	parties 	have 	counsel.
For 	the 	reasons 	that 	follow, 	the 	court 	denies 	Mots. 	2, 	3 	and 	4, 	reverses 	the 	Board's
decision 	regarding 	Tenants' 	attorney's 	fees 	and 	otherwise 	affirms.
I. 	Background
Tenants 	rented 	an 	apartment 	at 	166 	Battery 	Street 	from 	February 	1, 	2022 	through 	May
31, 	2025. 	They 	paid 	a 	security 	deposit 	of 	$2,150.00. 	Burchfield 	served 	as 	property 	manager 	on
behalf of the 	owner, 	Pirate 	Yeti, 	LLC.
Following 	the 	end 	of the 	lease, 	Burchfield 	sent 	Tenants 	a 	notice 	of 	withholding 	on 	June
13, 	2025. 	The 	estimated 	(not 	final) 	cost 	listed 	in 	the 	notice 	was 	$8,900. 	The 	notice 	identified
deductions 	from 	the 	security 	deposit 	in 	the 	full 	amount 	of the 	deposit 	and 	stated: 	"We 	will
present 	you 	an 	invoice 	for 	the 	damage 	due 	to 	breach 	and 	harm, 	minus 	the 	$2,150.00 	deposit 	and
provide 	you 	with 	a 	reasonable 	period 	to 	pay 	it. 	This 	will 	probably 	be 	by 	end 	of July, 	perhaps
sooner, 	as 	the 	work 	is 	completed." 	Housing 	Board 	Dec. 	q 	22. 	The 	withholding 	notice 	included 	54
pages 	of photos, 	but 	did 	not 	include 	an 	itemized 	list 	of the 	charges 	or 	a 	statement 	of Tenants'
right 	to 	appeal 	before 	the 	Housing 	Board 	of Review.
Tenants 	appealed 	to 	the 	Board, 	disputing 	the 	reasonableness 	of the 	amounts 	withheld
from 	their 	security 	deposit. 	They 	also 	contended 	that 	the 	withholding 	was 	willful 	and 	sought
double 	damages 	and 	attorney's 	fees.

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On September 8, 2025, Burchfield sent a check to Appellants in the amount of $2,150.00,
the amount of the original deposit. The check did not include interest. Tenants confirmed that the
check had been tendered but not cashed.
The Board held a hearing on September 22, 2025. The Board took evidence, including
testimony from the parties. Noting that it was undisputed that the notice of withholding was
lacking the statement required by B.C.O. § 18-120(c) advising Tenants of their appeal rights, the
Board concluded that Burchfield “was not eligible to deduct any amount from the security
deposit. . . .” Housing Board Dec. ¶¶ 49, 63. The Board found that the withholding was willful
because it found not credible the testimony of Burchfield witnesses that they did not know of
their requirement to notify Tenants of their right to appear before the Board. Id. ¶ 69. The Board
further concluded that interest was also wrongfully withheld. Id. ¶ 70. The Board denied Tenants’
request for attorney’s fees, however, because “no measure of fees or costs was put into evidence,
and accordingly, [Burchfield] was not given an opportunity to respond.” Id. ¶ 71. The Board
elaborated that “there is no procedure for post-hearing motion practice” and therefore “[s]ome
evidence should have been brought to the Board’s attention prior to the close of the hearing to
provide a lodestar as a basis for an award.” Id.
II. 	Burchfield’s Motion to Dismiss/Restyle Caption
Burchfield seeks to dismiss the City of Burlington and strike its brief from this appeal,
and to restyle the caption reflecting that dismissal. Burchfield contends that the City lacks
“standing,” is not a real party in interest and may not appear as a party in this appeal. It
analogizes the City’s participation in this appeal to a trial court appearing as a party before the
Vermont Supreme Court. Appellant’s Mot. to Dismiss at 3.
Burchfield raises this claim even though it, as appellant, invoked this court’s jurisdiction
in this appeal against the Board. In disputes over standing, “[t]he party focused upon . . . is
almost invariably the plaintiff” and “ordinarily the role of defendants is considered only in
determining whether they have caused the injury complained of and whether an order directed to
them will redress that injury.” Wright & Miller, 13A Fed. Prac. & Proc. Juris. § 3531 (3d ed.).
And this is not a case where a defendant’s standing might ordinarily be considered, for example,
where a defendant has raised a counterclaim, affirmative defense, or an objection to a settlement
between a plaintiff and a different defendant in a class action. See id. This case does not even
involve a “defendant” in an original action, but an appellee in an appeal from a municipal
hearing.
The cases Burchfield cites all involved plaintiffs or sovereigns seeking to invoke a court’s
jurisdiction to litigate generalized grievances. See Chase v. State, 2008 VT 107, ¶ 11, 184 Vt.
430; United States v. Texas, 599 U.S. 670, 677 (2023); Commonwealth of Massachusetts v.
Mellon, 262 U.S. 447, 488 (1923) (“The party who invokes the power must be able to show . . .
that he has sustained or is immediately in danger of sustaining some direct injury”) (emphasis
added).
Moreover, the City of Burlington has appeared on behalf of the Burlington Housing
Board of Review in appeals before this court and the Supreme court. See, e.g., In re Soon Kwon,

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2011 VT 26; 71 Drew LLC v. Burlington Housing Bd. of Review, No. 25-CV-247, 2025 WL
2510528 (Vt. Super. Ct. Aug. 25, 2025) (Shafritz, J.); South River, LLC v. Burlington Housing
Bd. of Review, No. 25-CV-3481, 2026 WL 374677 (Vt. Super. Ct. Feb. 03, 2026) (Shafritz, J.).
The City and/or the Board certainly has an interest in the appeal of the decision below,
and its briefing is helpful in clarifying the issues. Even if the court were to dismiss the City and
strike its briefing, Tenants have fully briefed the issues. The outcome of this appeal would be the
same.
Burchfield further argues that, apart from standing, the City should also be dismissed
because its participation “raises serious due process issues.” Mot. to Dismiss at 5. The court
discusses these claims below, finding them unpersuasive.
The court denies the motion to dismiss (Mot. 3), mooting Burchfield’s requests to strike
the City’s briefing or restyle the caption.
III. 	Tenants’ Motion for Sanctions
Tenants seek sanctions against Burchfield on the grounds that Burchfield’s motion to
dismiss and motion to restyle the caption are frivolous. “Under Rule 11, any document submitted
to the court is certified to present allegations supported by evidence and legal contentions
warranted by law.” Zorn v. Smith, 2011 VT 10, ¶ 14, 189 Vt. 219 (citing V.R.C.P. 11(b)(2), (3)).
“Upon belief that these requirements have been violated, the court may issue an order describing
the specific conduct in question and direct a party to show cause why no violation should be
found.” Id. (citing V.R.C.P. 11(c)(1)(B)). “After considering the party’s response, the court may
impose a sanction that is ‘limited to what is sufficient to deter repetition of such conduct.’” Id.
(quoting V.R.C.P. 11(c)(2)). “The trial court has broad discretion in determining if Rule 11
sanctions are warranted . . . .” Purdy v. Bandler, No. 2021-100, 2021 WL 5413207, at *1 (Vt.
Nov. 19, 2021) (unpub. mem.) (citing State v. Delaney, 157 Vt. 247, 256 (1991)).
This court concludes that Burchfield’s unusual argument does not rise to the level of
frivolous, harassing, or vexatious conduct that would warrant sanctions under Rule 11. See, e.g.,
Zorn, 2011 VT 10, ¶ 15; Fox v. Fox, 2022 VT 27, ¶¶ 36-41, 216 Vt. 460; see also Delaney, 157
Vt. at 256 (“‘Sanctions are not likely to be imposed, however, on a matter of first impression,
even if there is contrary authority in other courts, or when the law is not clear.’”) (quoting 5A C.
Wright & A. Miller, Federal Practice and Procedure § 1335, at 69 (2d ed. 1990)). The court
denies the motion for sanctions.
IV. 	Merits of Burchfield’s Appeal
Appeals from decisions of the Housing Board of Review under 24 V.S.A. § 5006 are
governed by V.R.C.P. 74. In re Soon Kwon, 2011 VT 26, ¶ 6, 189 Vt. 598 (mem.). The court
reviews the decision of the Board “on the record” rather than by conducting a new hearing. Id.
(citing State Dep’t of Taxes v. Tri-State Indus. Laundries, Inc., 138 Vt. 292, 294-95 (1980)).
Unless the court determines that it must take evidence or appoint a referee for proper disposition
of the matter, the court reviews the record of the hearing and exhibits acted upon by the Board.

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See 24 V.S.A. § 5006(b); V.R.C.P. 74(d). “In such cases, the court’s task is solely to determine
whether there was ‘any reasonable basis for the [Board’s] finding[s].’” In re Soon Kwon, 2011
VT 26, ¶ 6, 189 Vt. 598 (quoting Tri-State Indus. Laundries, Inc., 138 Vt. at 294). The court
does not “reweigh the evidence or assess the credibility of witnesses” because that is the
province of the Board as the trier of fact. Sweet v. Pierre, 2018 VT 122, ¶ 13, 209 Vt. 1 (citing
Mullin v. Phelps, 162 Vt. 250, 261 (1994)).
“A security deposit is any advance, deposit, or prepaid rent, however named, which is
refundable to the tenant at the termination or expiration of the tenancy. The function of a
security deposit is to secure the performance of a tenant’s obligations to pay rent and to maintain
a dwelling unit.” 9 V.S.A. § 4461(a). A landlord “may retain all or a portion of [a] security
deposit for . . . damage to property of the landlord, unless the damage is the result of normal
wear and tear or the result of actions or events beyond the control of the tenant.” Id.
§ 4461(b)(2); see also Burlington Code of Ordinances § 18-120.
“A landlord shall return the security deposit along with a written statement itemizing any
deductions to a tenant within 14 days from . . . the date the tenant vacated the dwelling unit . . . .”
9 V.S.A. § 4461(c). “If a landlord fails to return the security deposit with a statement within 14
days, the landlord forfeits the right to withhold any portion of the security deposit. If the failure
is willful, the landlord shall be liable for double the amount wrongfully withheld, plus reasonable
attorney’s fees and costs.” Id. § 4461(e).
Additionally, a “town or municipality may adopt an ordinance governing security
deposits on dwellings,” which “shall be supplemental to and not inconsistent with the minimum
protections of the provisions of this section.” Id. § 4461(g). Such an ordinance “may authorize
the payment of interest on a security deposit” and “may provide that a housing board of review
constituted pursuant to 24 V.S.A. § 5005 may hear and decide disputes related to security
deposits upon request for a hearing by a landlord or tenant.” A board’s actions “shall be
reviewable under 24 V.S.A. § 5006.” Id.
Burlington Code of Ordinances § 18-120(c) provides that the “written statement [that
itemizes deductions] shall also inform the tenant of the opportunity to request a hearing before
the Burlington housing board of review within thirty (30) days of receipt of the landlord’s written
statement.” Id. § 120(c). The ordinance further provides: “If the failure to return the security
deposit with a statement within fourteen (14) days is determined by the board to have been
willful, the landlord shall be liable for double the amount wrongfully withheld.” Id.
A. Willfulness
Burchfield raises several points on appeal. First, it contends that the Board failed to use
the proper standard in determining “willfulness.” Burchfield’s Appellant’s Br. at 5-6. Neither the
statute nor the ordinance defines “willful.” The Board wrote that “‘willfully’ for purposes of the
ordinances can mean violating the ordinance by design, by intention, by being obstinate or
indifferent to the requirements of the law.” Board Dec. ¶ 68 (citing Harrington v. McCauley,
1095-12-19 Cncv, slip op. at 1-2 (Vt. Super. Ct. Feb. 4, 2020) (Toor, J.)). Burchfield argues that
including the “obstinate or indifferent” language unlawfully broadened the definition. It asserts

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that the “Board’s own findings demonstrate that it applied” the “obstinate or indifferent”
standard, that its findings “do[] not establish intentional conduct” under Vermont case law, and
that its reasoning improperly “equates awareness of a legal obligation with a purposeful intent to
violate it.” Burchfield’s Reply at 3.
“Intent is rarely proved by direct evidence; it must be inferred from a person’s acts and
proved by circumstantial evidence.” State v. Cole, 150 Vt. 453, 456 (1988); see also, e.g., Immich
v. Dept. of Corrections, No. 25-CV-04003, 2026 WL 1233923, at *3 n.2 (Vt. Super. Ct. Apr. 21,
2026) (Shafritz, J.); Manning v. Pallito, No. 404-8-15 WRCV, 2016 WL 9453680, at *2 (Vt.
Super. Ct. May 23, 2016) (Teachout, J.). Here, the Board found that the withholding was willful
because it “did not find the testimony of Mr. Shlansky or Ms. Allen credible that they were
unaware of their responsibility to notify tenants of their right to appear before the Housing Board
. . . .” Board Dec. ¶ 69.
The Board acted within its discretion in making these credibility determinations. It
looked at Mr. Shlansky’s “demeanor, his familiarity with the state statute, and the fact that he has
been in property management for [25] years and been involved with hundreds of leases.” Id.
¶ 51. The Board stated that it “does not find it credible that Ms. Allen can have been in property
management for years under two different companies, known of the requirement to submit a
notice of withholding within fourteen days, and be familiar enough with Burlington Code of
Ordinances Chapter 18 to cite it, and still be unaware of the requirement to notify tenants of their
right to appeal before the Housing Board of Review.” Id. ¶ 55. Under the standards applicable to
this appeal, the Board had reasonable bases for these findings that this court may not reassess.
See § IV above (citing authorities).
The outcome of the Board’s willfulness finding aligns with the vast majority of Vermont
case law. This court has found only limited instances where the Vermont Supreme Court
(“VSC”) has discussed willfulness in the context of civil liability.
A wilful or intentional injury implies positive and aggressive conduct, and not the
mere negligent omission of duty. Wilful means intentional and is used in
contradistinction to ‘accidental’ or ‘unavoidable.’ A wilful act implies an
intention to cause injury. In its customary usage, intentionally means an act done
with intention of purpose, designed and voluntary.
Wendell v. Union Mut. Fire Ins. Co., 123 Vt. 294, 297 (1963) (citations omitted). The VSC
followed that definition in only one § 4461 case this court has found where “the evidence
show[ed] that landlords fully understood their obligation under the statute and simply failed to
follow through.” Tepper v. Garcia, No. 2015-150, 2015 WL 5793116, at *4 (Vt. Sept. 30, 2015)
(unpub. mem.). See also Washburn v. Fowlkes, Docket No. 2015-089, 2015 WL 4771613, at *3
(Vt. Aug. 2015) (citing V.R.A.P. 33.1(d), which provides that an “unpublished decision by a
three-justice panel may be cited as persuasive authority but is not controlling precedent,” except
under limited circumstances). The Tepper court “found that landlords were well aware that
tenant had vacated the unit on August 18, 2014, but failed to send the required withholding
notice until September 18, 2014.” Tepper, 2015 WL 5793116, at *2.

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The superior court has addressed willfulness more frequently and consistently under
§ 4461. Those decisions overwhelmingly follow the VSC’s approach in Tepper and Wendell.
E.g., Burdo v. Handy’s Hotels & Rentals, LLC, No. 26-CV-02223, 2026 WL 2019524, at *2 (Vt.
Super. June 29, 2026) (Shafritz, J.) (“The Court agrees that § 4461(e) does not apply to mere
accidents or excusable neglect. However, ‘willful’ involves intentional conduct but does not
necessarily implicate the level of malice that [landlord] wants it to require.”); id. at *3 (“There
was nothing accidental or excusably neglectful about [landlord’s] sending the letter and refund
more than 14 days after [tenant] vacated the apartment, nor was it an accident that [landlord]
withheld the equivalent of a half month’s rent.”); George’s Way LLC v. Harrington, No. 25-CV-
02569, 2025 WL 2899379, at *3 (Vt. Super. Ct. Aug. 21, 2025) (Richardson, J.) (“In this respect,
‘willful’ means intentional and by design as opposed to accidental.”); id. at *1 (“Landlord’[s]
defense is effectively a claim of ignorance as to the strict compliance requirement. This defense,
however, has long been held to be no defense or excuse.”); Atwood v. Hill, No. 24-CV-01091,
2024 WL 4583268 (Vt. Super. Ct. Sep. 05, 2024) (Burke, J.) (“In other words, willful ‘means an
act done with intention of purpose, designed and voluntary.’”) (citation omitted); Grande v.
JRLJ, LLC, No. 253-4-08, 2008 WL 11592926, at *4 (Vt .Super. Ct. Aug. 08, 2008) (Teachout,
J.) (“The standard legal definition of ‘willful’ is an act that is ‘voluntary and intentional, but not
necessarily malicious.’”) (citation omitted); Jones v. Coughlin, No. 519-8-04 Rdcv, 2006 WL
4959629 (Vt. Super. Feb. 02, 2006) (Norton, J.) (“Plaintiffs paid a $70.00 security deposit which
was never returned or accounted for. The evidence indicates that this failure was willful, and
therefore supports an award of double the deposit amount, or $140.00, pursuant to 9 V.S.A.
§ 4461(e).”) (citing State v. Gadreault, 171 Vt. 534, 537 (2000) for proposition that a willful act
is one that is deliberate and voluntary)).
The Board followed an unpublished decision in Harrington that used different language
than the decisions cited above. Board Dec. ¶ 68. The outcome of the Board’s decision
nevertheless aligned with the majority of case law. This court finds no legal error.
B. Wrong Party
Second, Burchfield contends that this action involves the wrong party because it names
the property manager (Burchfield) rather than the property owner (Pirate Yeti, LLC), Burchfield
never held the security deposit and the owner never received notice of the Board hearing.
The notice of withholding was sent by Burchfield, on Burfield letterhead. Ex. 13. On
September 8, 2025, Burchfield sent a check to Tenants in the amount of the original deposit. See
Board. Dec. ¶ 39. Furthermore, Burchfield and its contact information are identified at the top of
the lease and its address is the address for notice in the lease. Ex. 4. These facts undermine
Burchfield’s suggestion that it never held Tenants’ security deposit.
In addition, Burchfield’s representative, Mr. Shlansky, is also Pirate Yeti’s agent for
service of process registered at Burchfield’s address. Pirate Yeti’s principal is North River, LLC,
which also shares an address with Burchfield and of which Mr. Shlansky is one of two members.
Board Dec. ¶ 57. Mr. Shlansky testified at the Board hearing, albeit without credibility in the
Board’s view.

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The court does not agree that Burchfield is the wrong party under these circumstances.
C. Advisory Opinion/Dicta
Next, Burchfield argues that much of the Board’s decision constituted an “impermissible
advisory opinion” and “ultra vires dicta” by “making extensive findings that are unrelated to the
issue at hand.” Burchfield’s Appellant Br. at 8. It accuses the Board of “purport[ing] to block
addressing of the civilly-actionable damage . . . through a proper civil action . . . that it knows is
foreseeable [and] by definition outside of its limited scope.” Id. It asks the court to strike that
portion of the Board’s decision. Id. at 9.
Burchfield appears to challenge the portion of the Board’s decision stating that it
“seriously doubts the legitimacy of many of [Burchfield’s] deductions as being legitimate
deductions for normal wear and tear,” as well as the Board’s impression of the alleged floor
damage and lost rental days. See Board Dec. ¶¶ 64-66. The court does not reach this assertion.
As the Board noted, no party disputed that the required notice was not provided and Burchfield
was not entitled to deduct any amount from the security deposit. Board Dec. ¶ 63.
D. Due Process/Confrontation of Witnesses
Fourth, Burchfield argues that the Board violated the “mandatory minimum process”
required by its own rules and standards. Burchfield’s Appellant Br. at 9. It complains that the
Board did not allow cross-examination and did not follow any formal evidentiary process, and
that this approach conflicts with “basic due process rules in a contested hearing” and the City’s
ordinance providing that “[t]he parties shall have the right to . . . confront witnesses.” Id. (citing
Burlington Code of Ordinances § 18-55).
While the ordinance grants the parties the right to “confront witnesses,” the Board’s
process here was adequate. This is not a criminal trial where formal cross-examination is
constitutionally required. Importantly, “an opportunity for formal cross-examination is not
always required to satisfy due process. The formality and procedural requirements of the hearing
vary depending on the interests at stake. Nonetheless, there must be a meaningful opportunity to
counter the allegations by argument, and if necessary, by proof, however informal.” Stone v.
Town of Irasburg, 2014 VT 43, ¶ 36 n.3, 196 Vt. 356 (quotation omitted); In re Soon Kwon, 2011
VT 26, ¶ 8, 189 Vt. 598 (holding that administrative hearings “need not meet the exacting
requirements of judicial proceedings”). Burchfield had an adequate opportunity to present its
position. Mr. Shlansky appeared on behalf of Burchfield, argued, objected to the Board’s
authority, testified, disputed Tenants’ factual account, introduced photographs and invoices, and
explained why he thought the withholding was justified.
The court sees no prejudice under these circumstances. Burchfield identifies no specific
questioning it would have raised on cross-examination that would have shown that the
withholding notice was compliant, undermined the Board’s credibility determinations, or
otherwise changed the outcome. The absence of formal cross-examination does not provide
grounds for reversal.

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E. Structural Defect/Bias
Fifth, Burchfield alleges a “structural defect” involving due process and bias. Essentially,
it argues that the Board and the City Attorney’s office “form a single governmental body that is
adjudicating issues in which they have an agenda,” that the City Attorney’s office is “actively
participating and examining witnesses as if it were a party to the case” and is biased against
landlords. Burchfield’s Appellant Br. at 10-11. Burchfield’s argument seems to challenge that
representatives of the City Attorney’s office participated in the hearing and advised the Board
members.
“Due process requires a fair hearing before an unbiased decisionmaker, both in courts and
administrative agencies” and “[t]he presence of bias—or prejudgment, a form of bias—may
preclude a fair and impartial hearing.” In re Grismore, 2024 VT 70, ¶ 17, 220 Vt. 202 (citation
and quotation omitted). “In administrative proceedings, decisionmakers enjoy “a presumption of
honesty and integrity, and only in the most extreme of cases is disqualification for bias
constitutionally required.” Id. (citation and quotations omitted); see, e.g., In re JLD Props. of St.
Albans, LLC, 2011 VT 87, ¶ 9, 190 Vt. 259 (quotation omitted) (holding disqualification required
when board chair “expressed open contempt for the group as outsiders and elitists, implying that
they were illegitimate participants in the proceedings before the board”). The party claiming bias
has the burden to overcome this presumption. Sec’y, Agency of Nat. Res. v. Upper Valley Reg'l
Landfill Corp., 167 Vt. 228, 235 (1997).
Burchfield presents no evidence of the “personal intermixing of roles that normally is a
hallmark of a due process violation.” In re Crushed Rock, Inc., 150 Vt. 613, 621–22 (1988). See,
e.g., Bruteyn v. State Dental Council & Exam. Bd., 380 A.2d 497, 499, 501–02 (Pa. Commw. Ct.
1977) (finding hearing was “unconstitutionally tainted” where prosecuting attorney also advised
dental board “before, during, and after” hearing and took part in drafting final order, where board
was unrepresented by independent counsel); La Petite Auberge, Inc. v. Rhode Island Comm’n for
Human Rights, 419 A.2d 274, 285 (R.I. 1980) (requiring evidence that “same individuals are
involved in the building of an adversary case”); Burhoe v. Whaland, 356 A.2d 658, 659 (N.H.
1976) (finding improper where same person investigated case, presented case, cross-examined
witnesses, and decided case).
The hearing before the Board in this case involved a dispute between Burchfield and
Tenants over a security deposit. The City Attorney’s office did not prosecute the case or
otherwise represent one side in the hearing. The presence of counsel from the City Attorney’s
office to support the Board’s apparently new Clerk, see City’s Opp’n at 10 (filed Apr. 30, 2026),
does not demonstrate bias.
F. 	Dillon’s Rule
Sixth, Burchfield complains that the Board has improperly “adjudicate[ed] ultra vires
[m]atters” and violated Dillon’s Rule. Burchfield’s Appellant Br. at 11. It argues that a housing
board of review has the power to resolve security deposit disputes only “where a municipality so
provides,” 24 V.S.A. § 5005(c)(1), and that Burlington’s ordinance is defective in that it does not

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explicitly state that the Board has the power to decide security deposit disputes. See Burlington
Code of Ordinances § 18-42.
According to Dillon’s Rule, “a municipality has only those powers and functions
specifically authorized by the legislature, and such additional functions as may be incident,
subordinate or necessary to the exercise thereof.” City of Montpelier v. Barnett, 2012 VT 32,
¶ 20, 191 Vt. 441 (citing Hinesburg Sand & Gravel Co. v. Town of Hinesburg, 135 Vt. 484, 486
(1977)). In practice, Dillon’s Rule “operates as a canon of construction requiring that grants of
power to municipalities be read as limited to those clearly enumerated. City of Montpelier v.
Barnett, 2012 VT 32, ¶ 20, 191 Vt. 441 (citing Valcour v. Vill. of Morrisville, 104 Vt. 119, 130
(1932)).
The Vermont legislature has expressly provided that municipalities may adopt ordinances
regarding security deposit disputes for residential dwellings, plainly contemplating that housing
boards of review may hear and decide such matters. 9 V.S.A. § 4461(g). The chapter of Title 24
that Burchfield cites “shall be construed most favorably to municipalities, its intention being to
give them the fullest and most complete powers possible concerning the subject matter hereof.”
24 V.S.A. § 5009. Moreover, the VSC has also recognized that a “security-deposit hearing” in
front of Burlington’s Board of Housing Review is “specifically authorized by [24 V.S.A.]
§ 5005(b)(5) . . . .” In re Soon Kwon, 2011 VT 26, ¶ 21, 189 Vt. 598. In hearing the security
deposit dispute in this case, the Board did not exceed its powers authorized by the legislature.
G. Prior Return of Security Deposit
Lastly, Burchfield contends that the Board ordered the return of money that was already
returned. The evidence below showed that Burchfield sent Tenants a check, but that Tenants had
not yet cashed the check, presumably because they were also seeking double damages, interest,
and attorney’s fees. The Board decided the total amount of Burchfield’s liability. It did not
delineate the mechanism of payment or collection.
V. 	Tenants’ Cross-Appeal on Attorney’s Fees
In their cross-appeal, Tenants contend that the Board erred in denying their request for
attorney’s fees. The Board had denied the request for fees because “no measure of fees or costs
was put into evidence, and accordingly, [Burchfield] was not given an opportunity to respond.”
Board Dec. ¶ 71. The Board explained that because this was not a court trial, “there is no
procedure for post-hearing motion practice,” and therefore “[s]ome evidence should have been
brought to [its] attention prior to the close of the hearing to provide a lodestar as a basis for an
award.” Id.
Tenants rely on the statutory language providing for the recovery of attorney’s fees: “If
the failure [to return the security deposit with a statement within 14 days] is willful, the landlord
shall be liable for double the amount wrongfully withheld, plus reasonable attorney’s fees and
costs.” Id. § 4461(e) (emphasis added). They contend that once the Board found willfulness, the
award of attorney’s fees became mandatory.

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Both Burchfield and the City oppose this argument. They note that the City’s “Notice of
Hearing” provided in advance of the hearing stated that “the parties should be prepared to testify
about all aspects of the case.” Notice of Hearing (filed Dec. 1, 2025). The Notice further
provided that all evidence other than witness testimony must be submitted by a certain date prior
to the hearing, and that “[o]nly properly submitted” evidence “will be considered by the Board in
making its decision.” Id.
The court concludes that the Board erred in refusing to award attorney’s fees. The plain
language of the statute makes fees mandatory when there is a finding of willfulness. The court
finds no ambiguity in this statutory language. The hearing notice does not supersede the statute.
VI. 	Order
The court denies Mots. 2, 3 and 4. The court reverses the Board’s decision regarding
Tenants’ attorney’s fees and otherwise affirms. The court would typically remand to the Board a
determination of attorney’s fees, but the Board has already declared that it has “no procedure for
post-hearing motion practice.” Board Dec. ¶ 71. This court does not regulate the Board’s
procedures.
By Sep. 25, Tenants shall submit sufficient materials to support their request for
attorney’s fees. Burchfield shall respond to Tenants’ filings by Oct. 9. Either party may request
or stipulate to additional time with the opposing party by its respective deadline.
Electronically signed pursuant to V.R.E.F. 9(d) on September 10, 2026.
Colin Owyang
Superior Court Judge