SCOVT reverses in part environmental division enforcement order based on clearly erroneous finding of knowledge of terms of prior owners agreement found to have been violated.

  

City of Burlington v. Sisters & Brothers Investment Group, LLP, 2023 VT 24

CARROLL, J. Defendant-landowner Sisters & Brothers Investment Group, LLP (SBIG) appeals an environmental-division enforcement order enjoining it from using real property in the City of Burlington, ordering it to address site-improvement deficiencies as required by an agreement executed by a prior owner and the City, and imposing $66,759.22 in fines. We reverse and remand.

 

The trial court “independently” concluded that SBIG had “failed to ever comply with a  2004 agreement,” and substantially relied on that finding in assessing a fine of $50 per day for a zoning violation.

 

SBIG’s arguments challenging the DRB decision fail under our long line of precedent forbidding collateral attacks on unappealed DRB orders.

 

SBIG next contends that the trial court abused its discretion by finding that SBIG was liable for 892 days of continuing violations, each subject to penalty. We disagree. We have held that municipalities “need not produce evidence of a continuing violation for each and every day.”

 

Finally, we agree with SBIG’s argument that t the $66,759.22 fine was an abuse of discretion because the court found that it knowingly breached the 2004 agreement without any evidence demonstrating that SBIG knew or should have known of the agreement’s existence. The mere fact of SBIG’s purchase one day following the agreement’s execution does not reasonably lead to the conclusion that it knew or should have known of its existence, even when viewed in the light most favorable to the City. More evidence was needed for the court to conclude SBIG was aware of and intentionally disregarded the agreement from the time it purchased the property for the purpose of calculating fines.

 

Because the trial court erroneously found that SBIG knew or should have known about the 2004 agreement, we reverse the judgment order, direct the trial court to strike the condition requiring SBIG to address the site-improvement deficiencies in the agreement, and remand for the court to recalculate fines without considering whether SBIG violated the agreement’s terms.

 

Considering this disposition, we need not address SBIG’s remaining arguments that the fine was punitive rather than remedial or that the 2004 agreement is moot.

 

Reversed and remanded to strike the condition requiring SBIG to address site-improvement deficiencies in the 2004 agreement and to recalculate fines without considering the 2004 agreement.

How cited

SCOVT interprets zoning ordinance and permit conditions de novo, without deference to environmental court.

In re Confluence Behavioral Health, LLC. , .2017 VT 112 [filed 12/8/2017]

EATON, J. The Environmental Division approved the issuance of a conditional use permit for Confluence Behavioral Health, LLC’s proposed community therapeutic residence in Thetford. A group of neighbors appeal the decision. Neighbors contend that the Environmental Division improperly concluded that Confluence’s therapeutic community residence (the Project) was a health care facility, and thus was an allowed conditional use under the Thetford zoning ordinance. We affirm.

Applying our own statutory interpretation to the evidence, we affirm the Environmental Division’s determination that Confluence’s therapeutic community residence is a “health care facility” under the Thetford Zoning Bylaws and, as such, is an allowed conditional use in Thetford’s Rural Residential area.

We review zoning ordinances and municipal permit conditions according to the principles of statutory construction. Wagner & Guay, 2016 VT 96, ¶ 11. We approach the interpretation of such ordinances and permits as a legal question that we resolve without deference to the trial court. See In re Treetop Dev. Co. Act 250 Dev., 2016 VT 20, ¶ 9, ___ Vt. ___, 143 A.3d 1086 (stating that this Court proceeds “with a nondeferential, on-the-record review” of issues of law and statutory interpretation); see also In re Jenness & Berrie, 2008 VT 117, ¶ 26, 185 Vt. 16, 968 A.2d 316 (“To the extent that the setback issues raises questions of law, our review is de novo.”).

To the extent that we have suggested otherwise in prior decisions, we overrule those statements We now overrule prior cases which afforded deference to the Environmental Division’s interpretation of a permit condition or a local zoning ordinance. Henceforth, we will review the Environmental Division’s interpretation of permit conditions and local zoning ordinances without deference.

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.

Zoning. Failure to appeal decision of "zoning specialist" does not preclude review of later decision of zoning administrator.

In re Burns Two-Unit Residential Building, 2016 VT 63 (filed May 27, 2016)

DOOLEY, J. This case is about modifications to a two-unit residential building in Burlington. A group of Burlington residents (neighbors) appeal a decision of Environmental Division declining to reach the merits of neighbors’ claim that applicants converted their home into a duplex without a zoning permit on the grounds that the challenge was precluded by a prior decision under 24 V.S.A. § 4472(d). On appeal to this Court, neighbors argue that their challenge is not precluded under § 4472(d) because the prior decision had not been rendered by the zoning zdministrator as the statute requires. We agree and reverse.

A neighborhood property owner submitted a zoning enforcement complaint form to the city that stated applicants were conducting modifications to convert a single-family home into two apartments without any zoning permit from the city. A “zoning specialist” responded by letter dated May 15, 2014 that the Code Enforcement Office had determined that the use was presumed valid because the building had been used as a duplex since at least the time of adoption of the 1973 Burlington zoning ordinance. The letter stated that the decision was appealable to the Development Review Board, but neither the complainant nor any other interested party appealed.

On June 3, 2014, applicants obtained a separate “zoning “nonapplicability determination. Neighbors appealed this determination to the DRB and to the Environmental Division, which granted applicants’ motion for summary judgment. The court concluded that the use of the property as a duplex was “conclusively decided in [the] May 2014 letter,” a decision that became final and binding when it was not appealed under 24 V.S.A. § 4472(d).

Neighbors argue that their appeal from the DRB to the Environmental Division is not barred by 24 V.S.A. § 4472(d) because the letter to the original complainant was authored by an employee of the Code Enforcement and § 4472(d), by its terms, applies only to decisions of a zoning administrator.

Section 4472(d) provides that if any interested person fails to appeal to the appropriate municipal panel “under § 4465 of this title . . . all interested persons affected shall be bound by that decision or act of that officer.” Section 4465(a) states that an interested person “may appeal any decision or act taken by the administrative officer in any municipality” (emphasis added).

We are reluctant to apply a broad preclusion rule in this case. Neighbors had no way of knowing that a complaint to the Code Enforcement Office had been made and similarly no way of knowing how the complaint was addressed. Only when applicants filed the certificate of nonapplicability of permit requirements was there public notice of applicants’ plans and the zoning administrator’s approval of those plans and by then it was too late to contest the approval under the decision of the Environmental Division.

The Environmental Court erred in concluding that § 4472(d) applied and precluded review. The letter dated May 15, 2014 was not a decision of the zoning administrator. Because it is not a decision of the zoning administrator, the complainant did not have to appeal it to the DRB to avoid the invocation of § 4472(d). As a result, the letter did not preclude neighbors from requesting the zoning administrator to enforce the zoning ordinance against applicants and from appealing to the DRB from the zoning administrator’s decision that a permit was not needed.

Reversed

Zoning. Right to farm. “Farm structure” exemption extends to buildings used to process timber into lumber.

In re Moore Accessory Structure Permit, 2013 VT 54 (19-Jul-2013)

BURGESS, J. Neighbors appeal a decision of the Superior Court, Environmental Division that certain buildings used to process timber into lumber qualify as “farm structures” exempt from local zoning regulation under 24 V.S.A. § 4413(d)(1). We affirm.

24 V.S.A. § 4413(d)(1)-(d)(2) provides that zoning bylaws “shall not regulate . . . the construction of farm structures” and defining the latter to mean a building “for housing livestock, raising horticultural or agronomic plants, or carrying out other practices associated with . . . farming practices . . . as ‘farming’ is defined in 10 V.S.A. § 6001(22).” A “farm structure” is defined as “a building, enclosure, or fence for housing livestock, raising horticultural or agronomic plants, or carrying out other practices associated with accepted agricultural or farming practices, including a silo, as ‘farming’ is defined in § 6001(22), but excludes a dwelling for human habitation.” Id. § 4413(d)(1). “Farming” under 10 V.S.A. § 6001(22) is defined, in turn, to mean a number of activities, including “(A) the cultivation or other use of land for growing food, fiber, Christmas trees, maple sap, or horticultural and orchard crops,” “(B) the raising, feeding, or management of livestock, poultry, fish, or bees,” or “(D) the production of maple syrup.” The trial court found that lumber produced from timber harvested on the farm had been used for the construction, maintenance, and repair of buildings and structures on the farm properties. Slab wood created as a byproduct from the sawing had been used to fuel the sugar making operation and to heat other farm buildings; sawdust and shavings from the sawing and planing had been used as livestock bedding. Accordingly, the court concluded that the buildings at issue qualified as “farm structures” exempt from local zoning regulation under 24 V.S.A. § 4413(d), that the Newman-planer building therefore did not require a local zoning permit, and that the sawmill and kiln buildings could not therefore be found in violation of the local zoning ordinance.

The operative language of the statute, exempts buildings used for carrying out “practices associated with” farming. Id. (emphasis added). Experts testified that appellees’ wood processing activities represent “the epitome” of sustainable agriculture, and are common practices long associated with agricultural farming.now part of a broader larger movement toward a more sustainable agricultural economy, reflected in Vermont’s “right-to-farm” law, 12 V.S.A. § 5751. The record evidence, fully supports the trial court’s conclusion that appellees’ wood-processing activities constitute “practices associated with” farming, and that the structures used for carrying out these activities are exempt from local zoning regulation under 24 V.S.A. § 4413(d)(1).

Appeals. Zoning finality. Rules suspended to confer appellate jursidiction over interlocutory appeal from order remanding zoning case to DRB. Stowe Club test does not preclude amended permit, because changing lot designated for required hotel did not require change in permit condition.

In re Stowe Highlands Merger/Subdivision Application, 2013 VT 4 (Burgess, J.) 

This appeal stems from Stowe Highlands’ application to amend its PUD by subdividing and then merging certain lots, including one designated for a hotel. The DRB concluded that the amendment amounted to a change in the permit conditions and that Stowe Highlands had not demonstrated an unanticipated change in factual circumstances beyond its control. The Environmental Division reversed, concluding that the application required no permit condition change. We affirm.

The Environmental Division’s order was not a final judgment, because the court remanded the case back to the DRB to conduct a merits review. See In re Cliffside Leasing Co., 167 Vt. 569, 570, 701 A.2d 325, 325 (1997) (mem.) (concluding that environmental court’s decision remanding case to zoning board for review was not a final judgment). Nonetheless, no party moved to dismiss the appeal for lack of a final judgment and the case has been fully briefed and oral argument presented. The appellate rules can be suspended as a matter of discretion in the interest of judicial economy, and we do so here and decide the issue presented. In re Paynter 2-Lot Subdivision, 2010 VT 28, ¶ 3 n.2, 187 Vt. 637, 996 A.2d 219 (mem.) (allowing suspension of appellate rules when, as here, dismissal of the appeal “most likely would result in an appeal after final judgment”); see V.R.A.P. 2.

The DRB applied the Stowe Club test to evaluate whether to grant such a change. Under this test, the Board examines whether a permit modification is justified by: changes in factual or regulatory circumstances beyond the permittee’s control, changes in the project’s construction or operation not reasonably foreseeable at the time the permit was issued, or changes in technology. In re Stowe Club Highlands, 166 Vt. at 38-39, 687 A.2d at 105-06; see In re Hildebrand, 2007 VT 5, ¶¶ 7, 13-15, 181 Vt. 568, 917 A.2d 478 (mem.) (explaining and applying Stowe Club test).

The court was correct in its assessment that no evidence supported a reading of the permit to condition development of Parcel 1 to nothing beyond a hotel or inn. The application proposed to decrease the lot size for the hotel, but reserved Parcel 1A for the same sized 21-unit hotel as previously permitted. Because the proposed amendment did not require a change in a permit condition, the Stowe Club test was not applicable, and the Environmental Division’s reversal and remand to the DRB for further review of the application was proper.

Zoning. Plain meaning. Use of the "nearest available dictionary." The virgule (“/”) is disjunctive. . A self storage facility is not permitted as “retail sales/rentals” because it is not “retail.”

 In re Tyler Self-Storage Unit Permits,  2011 VT 66 (Burgess, J.)

A group of neighbors in the Town of Dorset appeal from an Environmental Court decision granting Bradford Tyler’s application for a zoning permit for the construction of a self-storage facility in the Dorset Village Commercial District.  Appellants contend that the court erred in determining the rental storage units to be an authorized land use within the applicable Dorset zoning district.  The Environmental Court granted applicant’s proposed use as a permissible  “retail rental.”  Although the court appropriately concluded that the phrase “retail sales/rentals” translates to “retail sales or retail rentals,” we hold that the plain language of the Bylaws' definitiion of "retail" precludes applicant’s self-storage facility.

The first issue in the  this case is whether the word "retail" in the phrase “retail sales/rentals” limits "rentals." The most basic tenet of textual interpretation is that words otherwise undefined are ordinarily defined by reference to the nearest available dictionary.  2A N. Singer, Sutherland Statutory Construction § 47:7, at 303-04 (7th ed. 2007).  The reliance of the regulations on “any readily available dictionary” reflects common sense and does not lead to unfettered discretion on the part of zoning administratorss -- absent an actual issue of competing and confusing definitions The virgule (“/”) is used “to separate alternatives,” American Heritage Dictionary of the English Language 1922 (4th ed. 2006), and is reasonably understood to be disjunctive, another expression of the word “or.”

“Retail,” a specific description, is followed by “sales” and “rentals,” words of more general import.  Thus, the phrase “retail sales/rentals” translates to “retail sales or retail rentals."

The trial court mistakenly concluded that so long as a facility rents to individuals, rather than to industrial customers or on a wholesale basis, the facility is permissible. The term “retail” is defined in the ordinance to mean “a shop or store for the sale of goods, commodities, products or services directly to the consumer, as opposed to wholesale.”  The Bylaws’ drafters intended “retail sales/rentals” to include only small-scale commercial establishments trading in services or in goods, for sale and for rent, as opposed to renting storage space as applicant proposes.  A self-storage facility is not a shop or store, nor does it offer goods or services.

Reversed.

Zoning. Ambiguous “footprint” permit construed in favor of landowner, even if structure violates ordinance, and zoning administrator had no authority to issue permit.

In re Clyde's Place, LLC., 2011 VT 7 (Reiber, C.J.)

Landowner appeals the Environmental Court’s decision upholding the Town of Orwell’s notice of violation (NOV) as to landowner’s replacement nonconforming structure. Notwithstanding the court’s determination that the new structure violated certain Town bylaws, we conclude that landowner was entitled to judgment in its favor because of the court’s conclusion, which is supported by the record, that the permit terms were ambiguous and had to be construed in favor of landowner. Accordingly, we reverse the Environmental Court’s decision and remand the matter for the court to enter judgment for landowner.

A zoning permit that has become final cannot be collaterally attacked even based on arguments that it was void on the grounds that the zoning administrator lacked the authority to issue it.  A municipality may later argue, however, “that the bounds of permitted use have been exceeded.”  The Town claims that the new structure’s 24' by 35' dimensions are not “over” the 21' by 21' “footprint” of the original building, as required by the 2006 permit.

We ordinarily accept the plain meaning of the words contained in a zoning permit, but any uncertainty in the meaning of those words “must be decided in favor of the property owner.”  The uncertainty and confusion over the permit’s “footprint” requirement led to several conversations between the members of Clyde’s Place and the Town’s zoning administrators.  Overall, the record reveals that there was no consensus as to what was meant by requiring landowner to build “over” the “footprint” of the preexisting structure. The Environmental Court specifically found that the permit terms “over” and “footprint” to be ambiguous, absent definitions of the terms in the zoning ordinance. 

We see no reason to question this determination. Given these findings and conclusions, which are supported by the record, we agree with landowner that, rather than going on to find a violation of town bylaws, the court should have stricken the Town’s NOV and entered judgment in favor of landowner because the as-built structure was allowed by the ambiguous permit.