                                      STATE OF VERMONT

                                   ENVIRONMENTAL COURT

             Town of Elmore, Plaintiff,
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             v
                                                    }   Docket No. 100-5-00 Vtec
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             Harland and Lynette Manning,           }
             Defendants.

                                          Decision and Order

The Town of Elmore brought this zoning enforcement action against Harland and Lynette
Manning, seeking to have them remove a mobile home placed on their property, and seeking a
fine of $100 per day for each day of violation. By letter accompanying the returns of service on
July 13, 2000, the Town= s attorney informed the Court that Defendants had applied for and
would receive a permit for the structure, and that A the only outstanding matter would be the
question of whether or not and to what extent the Court would assess a fine and costs.@

The Town of Elmore is represented by Richard L. Brock, Esq; Defendants are represented by
Paul S. Gillies, Esq. An evidentiary hearing was held in this matter before Merideth Wright,
Environmental Judge, at the close of which the parties made oral arguments on the record. Upon
consideration of the evidence and the oral arguments on the record, the Court finds and
concludes as follows.

Defendants= daughter had purchased an 8' x 42' mobile home (also referred to as a > trailer= )
and had it delivered to Defendants= property on Route 12 near the south end of Lake Elmore in
the fall of 1999. She intended to install it on land in Wolcott. The mobile home was parked close
to the road. When the zoning administrator inquired, Defendants informed him that the mobile
home belonged to their daughter and that it would be there only a few weeks while they were
fixing it up.

However, Defendants= daughter= s plans fell through and the mobile home remained in that
location on Defendants= property until the spring of 2000. Defendants agreed with their daughter
to take ownership of the mobile home and intended to use it for hay storage when it could be
moved to the back of their property once the ground had firmed up after mud season. The mobile
home was never connected to any utilities nor was it used as a residence. While it was in the
location close to the road, it was used only intermittently for temporary storage of pickup loads of
hay, until the hay could be dragged down to the barn. While the mobile home was in the location
close to the road, it had curtains or shutters across the lower portions of the windows, so that an
observer from the outside could only see the upper part of the interior space and could not see
whether the interior furnishings had been stripped or whether it was in use for any purpose.

In the spring of 2000, Defendants= grieved the reappraisal of their property which had taken into
account the mobile home, stating that the mobile home was overvalued, and that they intended to
gut the mobile home, move it to the rear of the property, and use it for hay storage. It was in fact
moved to the rear of Defendants= property in early June of 2000 and used for hay storage.

On March 14, 2000, the Zoning Administrator issued a Notice of Violation, stating as the violation
A the placement of a mobile home without obtaining a zoning permit.@ The Notice of Violation
directed them either to move the mobile home to an A allowable lot and obtain a zoning permit,@
or to remove the mobile home and A associated land development@ and return the property to
its A pre-development condition.@ The Notice of Violation gave Defendants seven days to
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correct the violation, or be subject to injunctive relief and fines of up to $50 per day. They did not
appeal the Notice of Violation, and it became final.

Since Defendants did not appeal the Notice of Violation to the ZBA or to this Court, they cannot
now contest whether the placement of the mobile home on their property without a zoning permit
was in fact a violation. 24 V.S.A. ' 4472(d). In re Appeal of Newton Enterprises, 167 Vt. 459
(1998); Town of Charlotte v. Richmond, 158 Vt. 354 (1992); Town of Sandgate v. Colehamer, 156
Vt. 77 (1990).

However, because the Court will consider the circumstances of the violation in determining an
appropriate remedy in this matter, we will go on to examine whether the placement of the mobile
home on the property without a permit was a violation, and whether its use for hay storage
required a permit.

The mobile home is a A structure@ under the Zoning Regulations (' II(30)) and may also fall
within the definition of A building.@ (' II(4)). Even under the Agriculture Department= s
regulations for structures used for agricultural uses, ' 4.07(b), a town= s setback regulations must
be complied with. Therefore, regardless of the use of the mobile home for hay storage, the
placement of the mobile home may have been in violation for its location within the front setback,
from the fall of 1999 to the date when it was moved, even if its location was not within the road
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right-of-way . However, the Notice of Violation did not allege a violation of Defendants=
placement of the mobile home within the front setback. Rather, the Notice of Violation alleged as
the violation the placement of the mobile home on their property without a zoning permit, and
required it to be moved to an A allowed lot@ with a zoning permit.

Within a few days of the issuance of the Notice of Violation, Defendants stated their intent to use
it for agricultural storage use and to place it to the rear of their own lot as soon as it could be
moved. Under the particular language of the 1988 Zoning Regulations (in effect at the time of
these events), an agricultural use does not even require a zoning permit. (' IV(A)(1)). The Zoning
Regulations= definition of A agriculture,@ ' II(2), is broader than that in the state regulations, and
covers Defendants= hobby farming or keeping horses for their household, regardless of the
number of horses. Therefore, the placement of the mobile home on Defendants= lot for the
purpose of hay storage did not require a zoning permit at the time of its placement. Defendants
acquired a vested right to the application of those regulations from the time the mobile home was
placed on their property and used for hay storage. Accordingly, by moving it to the rear of their
property and using it for hay storage, Defendants had complied with the Notice of Violation. That
is, they placed it on an approved lot, for which no zoning permit was required (although they also
did apply for a permit for its new location as of June 13, 2000, and did receive that permit on or
about July 10, 2000).

Because the mobile home was used for the agricultural use of hay storage at least from seven
days after the Notice of Violation, because the Notice of Violation did not allege the location of the
mobile home in the front setback as a violation, and because it was moved to an allowed location
as soon as the ground conditions would allow it to be moved, no penalty is warranted under 24
V.S.A. ' 4444. Based on the foregoing, it is hereby ORDERED and ADJUDGED that Defendants
shall pay a penalty of zero dollars per day for the violation as stated in the Notice of Violation
which Defendants failed to appeal.

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Dated at Barre, Vermont, this 16 day of July, 2001.
___________________
Merideth Wright
Environmental Judge




                                           Footnotes

1.
     Although the complaint requests fines of $100 per day, this language in the Notice of
Violation would limit the fines to $50 per day.

2.
    No party established the width of the road right-of-way; the mobile home was located 33 feet
from the centerline of the road.
