Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.

                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2014-365

                                      FEBRUARY TERM, 2015

 Town of Colchester                                    }    APPEALED FROM:
                                                       }
                                                       }    Superior Court,
    v.                                                 }    Environmental Division
                                                       }
 Robert K. Andres                                      }    DOCKET NO. 30-3-11 Vtec

                                                            Trial Judge: Thomas S. Durkin

                          In the above-entitled cause, the Clerk will enter:

        Defendant appeals pro se from the trial court’s order on remand imposing fines for his
conversion of a residential camp to a year-round dwelling in violation of town zoning
regulations. We affirm.

        The trial court issued its original merits decision in January 2013. It found that defendant
violated town zoning regulations by failing to apply for and obtain a change-of-use permit when
he began using his seasonal residence on a year-round basis. The court also found that the camp
was served by an unpermitted onsite waste water disposal system that did not conform to town or
state regulations. This system was allowed as a preexisting nonconformity subject to defendant
not changing the seasonal use of his camp. The court found that, as of the date of trial, and even
after receiving multiple notices from the town directing him to do so, defendant still had not
applied for or received a change-of-use permit, or completed any improvements to his waste
disposal system.

        The court recounted that defendant had been served with notices of violation (NOV) in
2002, 2004, and 2010. The town had also cited defendant for his zoning violation by issuing him
municipal ordinance violation tickets authorized under 24 V.S.A. § 1974a(d). Defendant chose
not to answer any of these prior zoning violation notices. He suffered default judgments on the
municipal tickets. Defendant asserted at trial that he had sought to reopen at least one of these
default judgments, and he pledged to provide the court, post-trial, with any communication from
the Vermont Judicial Bureau evidencing his request to have the judgment reopened. Defendant
did not, however, make any further filings with the court.

        The court explained that Vermont municipalities were entitled to claim and collect fines
of up to $100.00 for each day that a zoning violation continued after the municipality provided
the property owner with notice and an opportunity to cure the violation. See 24 V.S.A. § 4451(a)
(2012). The court had “the discretion to determine the amount of [the] fine, and, in doing so, to
balance any continuing violation against the cost of compliance and to consider other relevant
factors, including those specified in the Uniform Environmental Enforcement Act[, 10 V.S.A. §
8010(b)].” City of St. Albans v. Hayford, 2008 VT 36, ¶ 17, 183 Vt. 596 (mem.). The court
found that the town had presented evidence that it and its attorneys incurred labor costs and legal
fees in response to defendant’s zoning violations in excess of $15,280. Defendant did not
contradict or object to the town’s cost estimates. The court made numerous findings in light of
the considerations set forth by statute for determining fines, and concluded that a fine of $45.00
for each day of defendant’s violations was warranted. It thus awarded judgment to the town and
imposed fines against defendant of $21,840. The court also granted injunctive relief to the town,
prohibiting defendant from using the camp on a year-round basis until defendant secured all
necessary permits and approvals from the town.

        Defendant appealed to this Court. In a November 2013 entry order, the Court found
sufficient evidence to support the trial court’s finding that defendant converted the camp to a
year-round dwelling without a permit. Town of Colchester v. Andres, No. 2013-081, 2013 WL
9055944,         at     *2        (Vt.      Nov.        20,      2013)        (unpub.       mem.),
https://www.vermontjudiciary.org/LC/unpublishedeo.aspx. The Court concluded, however, that
the trial court erred by including days of allowable seasonal use (between April 1, 2011 and
October 31, 2011) in its fine calculation. Id. at *3. We stated “that the violation here essentially
consisted of occupying the camp out of season without a permit, and that the fine should
therefore be confined to that period of time in which a permit was required, which would exclude
the period from April 1 to October 31.” Id. We thus “remanded to the trial court to reconsider
the fine to be imposed within this timeframe.” Id.

        The court issued its order on remand in August 2014. After determining the number of
days for which a fine was warranted, the court reconsidered the proper level of fines, within the
confines of the discretion afforded by 24 V.S.A. § 4451(a) and the NOV that was the subject of
the town’s complaint in this enforcement proceeding. The court applied the guidelines anew in
light of this Court’s remand order. It summarized the findings that it had previously made. The
court explained that the per day/offense rate it used in its January 2013 decision was a rate
applied to the entire period between April 2, 2011 and September 28, 2012 (546 days). The
court was now applying the same considerations to a shorter timeframe. Given this, it found that
the maximum fine per day/offense allowed by the enabling statute and the November 8, 2010
NOV to be the appropriate rate. The rate was based on the tremendous expenses incurred by the
town in its efforts to prosecute defendant, defendant’s vigorous (and unsuccessful) denial of the
zoning violations, and defendant’s continuing refusal to remedy those violations, including up
through the day of trial. The court thus imposed total fines of $19,700, broken down as follows:
$50.00 for the first day of violation (November 1, 2011); $6,000 for the sixty-day period between
November 1 and December 31, 2011 (at $100 per day/offense, the maximum allowed by the
enabling statute then in effect); and $13,650 for the ninety-one days between January 1 and
March 31, 2012 (at $150 per day/offense, following modification of the enabling statute and
reflecting the maximum rate specified in the town’s NOV). This appeal followed.

        Defendant first argues that the court was barred by the doctrines of collateral estoppel and
res judicata from entering judgment against him. He bases this argument on the three municipal
complaints filed against him by the town, which were the subject of default judgments.
Defendant apparently moved to reopen two of these judgments in May 2011, and moved to
reopen the third in March 2014. The Vermont Judicial Bureau denied his motions to reopen in
April 2014. Defendant maintains that he could not have raised these affirmative defenses any
sooner given the timing of the Judicial Bureau’s ruling. He asserts that he brought this issue to
the trial court’s attention in his memorandum on remand. In that memorandum, defendant
quoted 10 V.S.A. § 8019(b) and argued that the issuance of the municipal tickets precluded the
town from seeking any additional monetary penalty for the violation specified in the citation.

        We conclude that defendant waived these affirmative defenses by failing to adequately
raise them below. See Bull v. Pinkham Eng’g Assocs., 170 Vt. 450, 459 (2000) (“Contentions
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not raised or fairly presented to the trial court are not preserved for appeal.”). The default
judgments were issued by the Vermont Judicial Bureau on December 10, 2010 and January 5 and
12, 2011. The complaint in this action was filed in March 2011. Defendant could have raised
the alleged preclusive effect of the judgment in his answer, but failed to do so at any time before
the environmental division entered its judgment. The fact that defendant later unsuccessfully
attempted to reopen the judgments does not change their finality for purposes of making his
preclusion argument. Moreover, defendant did not raise the defenses of res judicata or collateral
estoppel even in his memorandum on remand. Instead, he cited a statute, 10 V.S.A. § 8019(b),
that does not apply to this case. The town issued its municipal tickets pursuant to 24 V.S.A.
§ 1974a, and it had the right to pursuant an enforcement action under 24 V.S.A. § 4451 as well.

        Defendant next argues that the court erred in increasing the amount of the daily fine on
remand. He suggests that the court’s decision chilled his right to appeal, and is therefore
impermissible. He cites North Carolina v. Pearce, 395 U.S. 711 (1969), in support of his
assertion.

        In Pearce, the United States Supreme Court held that “[d]ue process of law . . . requires
that vindictiveness against a [criminal] defendant for having successfully attacked his first
conviction must play no part in the sentence he receives after a new trial.” Id. at 725. The Court
concluded that “[i]n order to assure the absence of such a motivation, . . . whenever a judge
imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so
must affirmatively appear.” Id. at 726. The Court later partially overruled Pearce. See Alabama
v. Smith, 490 U.S. 794, 801-03 (1989) (concluding that there was no presumption of
vindictiveness if first sentence was imposed pursuant to guilty plea, and second sentence
occurred following trial).

         Even assuming that Pearce, a criminal case, has any bearing here, the trial court
articulated reasonable grounds for its decision to impose a daily fine of $100 rather than $45, and
there is no evidence of vindictiveness. As the court explained, it was applying the same
considerations that guided its earlier ruling to a shorter timeframe. It found the $100 per day rate
appropriate given the tremendous expenses incurred by the town in its efforts to prosecute
defendant, defendant’s vigorous (and unsuccessful) denial of the zoning violations, and
defendant’s continuing refusal to remedy those violations, including up through the day of trial.
We note that this was not a “greatly enhanced penalty,” as defendant asserts. In fact, the total
penalty was less than had been imposed in the court’s prior order. Defendant’s second claim of
error is without merit.

       Affirmed.

                                             BY THE COURT:


                                             _______________________________________
                                             Paul L. Reiber, Chief Justice

                                             _______________________________________
                                             John A. Dooley, Associate Justice

                                             _______________________________________
                                             Harold E. Eaton, Jr., Associate Justice

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