Town is equitably estopped from enforcing its zoning regulations, even though third party rights at stake.

In re Langlois, 2017 VT 76 [filed 8/25/2017]


EATON, J. This appeal involves a dispute between two neighbors—Gary Langlois and Michael Heller—over the construction of an open structure called a pergola on the shore of Lake Champlain in Swanton. The Environmental Division consolidated three related proceedings concerning this dispute and concluded that the Town of Swanton was equitably estopped from enforcing its zoning regulations and that the pergola, which did not comply with those regulations, could remain. We affirm.

The equitable estoppel doctrine has four elements: (1) the party being estopped must know the relevant facts; (2) the party being estopped must intend that his or her conduct be acted upon; (3) the party asserting estoppel must be ignorant of the true facts; and (4) the party asserting estoppel must rely to his or her detriment on the estopped party's representations.

Additionally, where, as here, the party against whom estoppel is sought is the government, the party asserting estoppel must also demonstrate that "the injustice that would result from denying the estoppel outweighs the negative impact on public policy that would result from applying estoppel." The doctrine must be applied with great caution when the party against whom estoppel is sought is the government, but when a government agent acts within that agent's authority, it is a defense that must be available. Vt. N. Props., 2014 VT 73, ¶ 26.

The court below reasoned that although estoppel against the government is rarely an appropriate remedy, it was justified in this case because the zoning administrator knew sufficient facts to make an informed and correct decision about whether a permit was needed, the zoning administrator intended his opinion to be acted upon, Langlois did not know a zoning permit was required, and Langlois acted to his detriment on the information he received.

The court further concluded that to not estop the government would result in an injustice.

We agree with the trial court that the zoning administrator had knowledge of the facts sufficient to know that a zoning permit was required for the pergola and that he gave his opinion knowing that Mr. Langlois would act upon it, that Langlois did not know the true facts and that Langlois relied to his detriment on the zoning administrator's advice

Where the elements are shown we have permitted estoppel against the government in a variety of circumstances See Vt. N. Props., 2014 VT 73, ¶ 34 (holding that injustice would result if government were not estopped from revoking permit where village made representations to property development that village was holding necessary water in reserve for development); Lyon, 2005 VT 63, ¶ 23 (holding that permit applicant made sufficient showing to estop ANR from revoking wastewater permit); Stevens v. Dept. of Soc. Welfare, 159 Vt. 408, 421-23, 620 A.2d 737, 744 (1992) (government estopped from denying retroactive application of benefits where agent provided patients inaccurate information about healthcare billing); My Sister's Place, 139 Vt. at 609, 433 A.2d at 279-80 (city estopped from enforcing building code regulations where City Fire Marshall acting within his authority invited citizen to rely on an inaccurate interpretation of regulations).

We agree with the Environmental Division that the equities weigh in favor of estopping the Town's enforcement of the zoning regulations., Langlois reasonably relied on information Kilburn provided to him and he spent over $33,000 based upon that information. Kilburn was the proper person to whom Langlois should have directed his questions. The inquiry itself was reasonable. Were we to not estop the government in this instance, we would be hard-pressed to tell Langlois, or any other citizen in the Town, what Langlois was required to do differently than what he did here.


SKOGLUND, J., dissenting. I cannot agree that Langlois’s monetary damages outweigh Heller’s reliance on the proper administration of the Town of Swanton’s zoning laws, which were enacted to prevent the harm. If the harm to Heller’s property and, by extension, the Town’s citizens’ faith in their zoning laws does not outweigh or, at the least, equal the cost of removing a pergola, this Court should remove the fifth factor from the test for asserting equitable estoppel against the government, for that factor is all bark and no bite. I dissent. I do not believe that the application of equitable estoppel should injure an innocent third party, particularly where the third party relies on proper municipal governance of the laws. I am authorized to state that Justice Robinson joins this dissent.

Municipal immunity bars claim of negligent tax assessment. Estoppel claim not proven.

Sobel v. City of Rutland, 2012 VT 84 (Burgess, J.)              

Plaintiff owners of an office building appeal the superior court’s grant of summary judgment for defendant municipality. Plaintiffs claim the municipal assessor was negligent in providing inaccurate property tax estimates on the proposed, but not yet built, office.  Plaintiffs also sought to enjoin enforcement of the tax assessment on the office building ultimately constructed.  On appeal, they argue that the court erred in concluding, on summary judgment, that their negligence claim was barred by municipal immunity and that they failed to establish equitable estoppel. We affirm.

Municipal immunity protects municipalities "from tort liability in cases where the municipality fulfills a governmental rather than a proprietary function." Governmental functions are those performed when a municipality "exercise[s] those powers and functions specifically authorized by the Legislature, as well as those functions that may be fairly and necessarily implied or that are incident or subordinate to the express powers." Proprietary activities, on the other hand, are, essentially, commercial activities performed by a municipality in its corporate capacity, for the benefit of the municipality and its residents, and unrelated to its "legally authorized activity." Plaintiffs admit that the estimates here were sought from the Assessor in his official capacity.  But for his office plaintiffs would not haveinquired. Tax estimates thus  elicited solely on account of the Assessor’s official position are reasonably treated as governmental, as opposed to proprietary, activity, that entitle the municipality for immunityfrom suit stemming from the Assessor's estimates.

We also conclude that plaintiffs cannot establish the elements of equitable estoppel: (1) the party to be estopped must know the facts; (2) the party being estopped must intend that its conduct be acted upon; (3) the party asserting estoppel must be ignorant of the true facts; and (4) the party asserting the estoppel must rely on the conduct of the party to be estopped to its detriment.