                                     STATE OF VERMONT

                                 ENVIRONMENTAL COURT

               City of South Burlington,
               Plaintiff                           }
                                                   }
               v.                                  }   Docket No. 175-8-00 Vtec
                                                   }
               Ernest and Donna Levesque,          }
               Defendants

                          Order on City=s Motion for Reconsideration

   In Docket No. 94-5-00 Vtec, Appellant Ernest Levesque, Jr. appealed from a decision of the
Development Review Board (DRB) of the City of South Burlington, denying a variance for the
construction of a third rental unit and an accessory handicapped residential unit on his property.
In Docket No. 175-8-00 Vtec, the City brought an enforcement action for the construction of the
two units without zoning approval. The two matters were consolidated, heard, and a decision was
issued on October 12, 2001, denying the variance and ruling on the injunctive relief and penalty
sought by the City.

   Appellant-Defendant Ernest Levesque appeared and represented himself; the City of South
Burlington was represented by Amanda S.E. Lafferty, Esq. The City has now moved for
reconsideration in Docket No. 175-8-00, arguing that the merits hearing only addressed the
request for preliminary injunctive relief, not permanent injunctive relief or fines, and that City
did not have the opportunity to present evidence of the costs of enforcement, the period of
violation, and the facts regarding whether Defendants had constructed separate living units or
was operating a rooming house. Defendants did not respond to the request for reconsideration.

    The Court has reviewed the history of both cases before the Court. The documentary record
only reflects that the appeal, Docket No. 94-5-00 Vtec, had already been set for a merits hearing
by the time that the enforcement case, Docket No. 175-8-00 Vtec was filed; that the City filed a
request in writing, requesting to consolidate the two cases and to use an alternate date a week
later A to hold a hearing regarding the request for preliminary injunctive relief;@ and that Mr.
Levesque opposed continuing the hearing past the originally scheduled date.

   The docket entries also reflect that Attorney Lafferty telephoned the Court a few days later
and spoke to the Deputy Clerk for the District and Environmental Courts, Christine Eisenwinter.
The docket entry made by Ms Eisenwinter states in full: A Atty Lafferty phoned - she would like
merits hearing held in conjunction with hearing on [t]his appeal.@ Judge Wright took this to mean
that the entire merits of the enforcement case, not just the preliminary injunction, would be heard
together with the merits hearing already set in the appeal case. Judge Wright then issued an entry
order consolidating the two cases and they were heard as scheduled.
   After the parties had filed their requests for findings in the consolidated cases, Attorney
Lafferty filed a motion for summary judgment in the enforcement case, requesting permanent
injunctive relief, and such other relief as the Court may deem proper, and requesting a hearing on
the appropriate remedy (by which she must have meant the monetary penalty, as the injunctive
relief had both been heard and had been the subject of the motion for summary judgment).
Defendants responded to the summary judgment issues, but not to the request for a hearing on
the remedy. The Court= s decision and order addressed all issues raised by the merits of the
appeal and the enforcement case, including those issues raised in the summary judgment motion,
but without holding any further hearing on the monetary penalty.

   Based simply on this sequence of events1, it appears that the City might reasonably have
expected that a further hearing would be set on a monetary penalty, even though the City had
requested that the A merits@ of the enforcement action be set to be heard with the variance case.
Especially in the absence of any argument to the contrary from Defendants, we must grant the
City= s motion to hold the requested hearing on the monetary penalty. Accordingly, in Docket
No. 175-8-00 Vtec the City=s Motion for Reconsideration is GRANTED to the following extent
only: the final two sentences of the first full paragraph on page 42 of the October 12, 2001
Decision and Order are hereby vacated and removed from that order and the remainder of the
order remains in effect. The effect of today= s order is that Docket No. 94-5-00 Vtec remains
disposed of by the October 12, 2001 Decision and Order, and that the finding of violation and
injunctive relief ordered by the October 12, 2001 Decision and Order in Docket No. 175-8-00
Vtec remains in place. The issue of whether and what monetary penalty should be imposed in
Docket No. 175-8-00 Vtec has been reopened and will be set for a telephone conference and for
a merits hearing to take any supplementary evidence not already in the record.

    Dated at Barre, Vermont, this 31st day of January, 2002.

___________________
Merideth Wright
Environmental Judge



                                             Footnote
1
 We do not here address the City’s arguments regarding the effect of an unappealed notice of
violation and regarding whether a court can order that a zero dollar fine is warranted. We will
address those arguments in the decision on the monetary penalty after hearing, if those issues are
still pertinent under the circumstances.
2
    The sentences being removed read as follows:

"Although the City also requested penalties in the amount of $100/day, the court determines that
no penalty is warranted in this case, beyond Appellant/Defendants’ expenses in evicting the
recalcitrant lodgers and in removing any limitation on internal access within their dwelling unit.
Accordingly, we impose a penalty of zero dollars per day, for the period from October 4, 1999
until the date in the spring
