                                      STATE OF VERMONT

                                  ENVIRONMENTAL COURT

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Appeal of Taylor’s Automotive, LLC              }                       Docket No. 42-3-04 Vtec
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                           Decision and Order on Pending Motions

        Appellant Taylor’s Automotive, LLC1 (Appellant) appealed from the decision of

the Zoning Board of Adjustment (ZBA) for the Town of Barton (Town) dated February

12, 2004, which denied Appellant’s appeal of a Notice of Violation for operating a

prohibited junkyard, issued by the Town’s Zoning Administrator on December 5, 2003.2

Appellant is represented by Charles D. Hickey, Esq.; the Town as Appellee is

represented by Glenn C. Howland, Esq. Both parties have filed motions for summary

judgment, and Appellant has filed a motion to dismiss the Town’s pleadings, and to

deem Appellant’s statement of material facts uncontested.

                                        Factual Background

        The following facts are undisputed unless otherwise noted:

        1.      On May 24, 2001, Francis and Helene Taylor purchased a parcel of land

from Amyot’s, Inc., improved with a building. The property is approximately twelve

acres in area and located on U.S. Route 5 in Barton, Vermont.

        2.      Prior to Taylors’ purchase of the parcel, Amyot’s, Inc. leased the parcel to

Collins Farm and Garden, Inc. (Collins), a farm tractor and equipment dealership.

Collins’ lease began around 1992.

1 Appellant is incorporated under the name ‚Taylor’s Automotive, Inc.,‛ rather than ‚LLC.‛ We retain
the use of ‚LLC‛ for consistency with the various pleadings in this case. See Undisputed Fact ¶12, below.
2 The parties have not submitted to the Court the Zoning Administrator’s Notice of Violation. The Court

has therefore characterized the alleged violation as a ‚prohibited junkyard‛ based upon the parties’
representations.
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       3.    The back field of the parcel (back field) was used by Collins to store tires,

barrels, inoperable farm machinery and motor vehicles, including a pickup truck, a

school bus, and two telephone vans.

       4.    Prior to Collins’ lease of the parcel, Amyot’s, Inc. operated a farm

equipment dealership on the parcel, beginning around 1973.

       5.    Amyot’s, Inc. used the back field to store material including old

machinery, vehicles, vehicle parts, and an inoperable school bus with parts and used

tires in it. The number of vehicles and the area this collection encompassed is unclear

from the parties’ representations.

       6.    Amyot’s, Inc. purchased land, including the back field, from Carl’s

Equipment, Inc. in either 1973 or 1974.

       7.    The Taylors and Amyot’s, Inc. arrived at an oral agreement in the course

of the sale of the parcel that Amyot’s, Inc. would clean up the property by removing the

material from the back field.

       8.    On May 25, 2001, the Taylors took possession of the parcel from Amyot’s,

Inc.

       9.    At the time the Taylors took possession, a private salvage company was in

the process of removing the material from the back field. The salvage company stopped

working on the site in the last week of May, 2001, after the Taylors took possession.

       10.   In late August of 2001, Amyot’s, Inc. burned, in the back field, an old

wooden manure spreader, pallet crates, and the wooden portions of an old forage

wagon. It appears from the parties’ competing statements of material facts that the

parties agree that by August, 2001, the material Amyot used and stored on the back

field was completely removed.

       11.   The Taylors immediately began operating an automobile sales, repair, and

towing business on the property.

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          12.      In May of 2002 the Taylors incorporated their business under the name

Taylor’s Automotive, Inc.

          13.      The Taylors began using the back field for storage of vehicles shortly after

Amyot’s burned the wooden material. Some vehicles Taylor brought on to the property

were awaiting repairs, some were being held pending payment or authorization to

make repairs, some were for use in demolition derbies, and some were abandoned and

towed to the site at the request of Taylor's Automotive customers, including State or

Town entities.

          14.      Approximately half of the total vehicles stored by Appellants on the back

field were unregistered at any given time.

          15.      On December 3, 2003, the Town’s Zoning Administrator issued a Notice of

Violation to Appellant, which Appellant appealed to the Town’s ZBA.

          16.      On January 17, 2004, the ZBA conducted a site visit and found forty-two

vehicles on the back field, approximately half of which were unregistered.

          17.      On February 12, 2004, the ZBA denied Appellant’s appeal of the

December 3, 2003 Notice of Violation. Appellant thereafter filed a timely appeal with

this Court of the ZBA’s denial.

                                                 Discussion

          Appellant argues that the use of the back field as a junkyard3 is grandfathered as

a pre-existing nonconforming use and further that the Town’s Notice of Violation is

barred by the fifteen-year statute of limitations established by 24 V.S.A. former

§ 4496(a), now amended and codified at § 4454(a). The Town counters that Appellant

has impermissibly expanded the nonconforming use by introducing new material and

by doing do in a quantity that exceeds prior levels. The Town further asserts that that

Appellant either abandoned the nonconforming use or replaced it with a conforming

3   Appellant denies that the use is as a junkyard, but assumes it for purposes of this motion
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use.4 Lastly, the Town asserts that the junkyard was unlawful even before the zoning

ordinance was enacted, and thus the use is not a ‚nonconforming use‛ as defined in the

former 24 V.S.A. § 4408(a)(1), now amended and codified at § 4412(7).5 Appellant also

requested that the Town’s motions be "dismissed" as untimely and that Appellant’s

statement of facts be deemed uncontested, as the Town did not comply with the

requirements of V.R.C.P. 56(c)(2).

         We need not reach Appellant’s motion to dismiss, as material facts are in dispute

necessitating the denial of both pending motions for summary judgment. We note for

the edification of the Town’s attorney that the failure to file motions and responses in a

timely fashion may require this Court to disregard potentially helpful legal reasoning.

We trust that all parties will heed this warning; we now move to a review of the legal

issues raised by the parties’ motions.

         Turning to Appellant’s request that its statement of facts be deemed uncontested,

Appellant correctly asserts that the Town did not comply with the V.R.C.P. 56(c)(2),

which requires that the opposing party’s filing include ‚a separate, short, and concise

statement of material facts as to which it is contended that there exists a genuine issue

to be tried.‛ While the Town did file a ‚statement of facts not in dispute,‛ it failed to

identify which, if any, of Appellant’s factual representations are in dispute. In this

situation the rules are clear. ‚All material facts set forth in the statement required to be

served by the moving party will be deemed admitted unless controverted by the

statement required to be served by the opposing party.‛ V.R.C.P. 56(c)(2). Pursuant

thereto, Appellant’s statement of material facts is hereby deemed uncontroverted for

purposes of the Court’s consideration of the pending motions.



4
  Barton Zoning Ordinance § 402.03 prohibits the reestablishment of a nonconforming use under two
circumstances: (1) if it has been “discontinued or terminated for a period of two years” or (2) if it “has been changed
to, or replaced by, a conforming use.”
5
  See footnote 5, supra, and accompanying text.
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        Appellant’s predecessor-in-interest, Collins, used the back field to store material

fitting the statutory definition of ‚junk,‛ 24 V.S.A. § 2241(5). If, as appears to be the

case, the pickup truck, school bus, and two telephone vans stored on the back field by

Collins were unregistered for more than 90 days, they fit the statutory definition of

‚junk motor vehicles,‛ 24 V.S.A. § 2241(6). Therefore, Collins used the back field as a

‚junkyard,‛ as that term is defined in the current zoning ordinance at § 5.02, and in 24

V.S.A. § 2241(7). There are insufficient facts in the record to determine whether the

junkyard use goes back more than fifteen years from the December 3, 2003 Notice of

Violation, and whether such use is similar enough to Appellant’s use as to defeat the

Town’s Notice of Violation.

        We next turn to the Town’s argument that the junkyard use does not qualify as a

non-conforming use as defined in the former 24 V.S.A. § 4408(a)(1).                        The former

§ 4408(a)(1) defined ‚nonconforming use‛ as ‚a use of land or a structure which does

not comply with all zoning regulations where such use conformed to all applicable

laws, ordinances and regulations prior to the enactment of such regulations.‛ This

definition has been amended and codified in the ‚Definitions‛ section of the new

statute, at 24 V.S.A. § 4303(15),6 rather than appearing in § 4412(7), the new statute’s

version of the former § 4408.

        The Town points out that junkyard operators were required to obtain a license

under 24 V.S.A. former § 2062, which was enacted in 1960 and was superseded in 1969

by 24 V.S.A. § 2242.       Section 2242 remains in effect and requires both a certificate of

approval for the junkyard location and a license to operate it. The Town argues that

since no such license exists, the junkyard use did not comply with all applicable laws


624 V.S.A. § 4303(15) (2004) defines ‚nonconforming use‛ as ‚use of land that does not conform to the
present bylaws but did conform to all applicable laws, ordinances, and regulations prior to the enactment
of the present bylaws, including a use improperly authorized as a result of error by the administrative
officer.‛
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prior to the enactment of zoning in 1986, and thus is not a protected non-conforming

use.

       In Vermont Agency of Transp. v. Sumner, 142 Vt. 577 (1983), our Supreme Court

held that the licensure requirements of § 2242 applied only to junkyard businesses, id.

at 580. The defendant in Sumner did not operate such a business, but rather maintained

‚a private automobile graveyard‛ and ‚robbed this graveyard of auto parts from time

to time,‛ id. at 579. In 1984, in the wake of the decision in Sumner, the Vermont

Legislature amended § 2242 by expanding the definition of ‚junkyard‛ to include

outdoor storage of junked vehicles ‚not in connection with a business.‛ See Town of

Sandgate v. Colehamer, 156 Vt. 77, 89 (1990).

       If Appellant’s predecessors-in-interest, Collins and Amyot’s, Inc., were operating

a junkyard business without a license, then the pre-zoning junkyard use would not

have complied with all applicable laws in effect at the time, and therefore the junkyard

use would not be a lawful nonconforming use as the term is defined in the former

statute, 24 V.S.A. § 4408(a)(1).   Even if the former owners of the parcel were not

operating a junkyard business, the junkyard use would not have complied with § 2242

beginning in 1984, two years prior to the enactment of the Town’s Zoning Ordinance.

Thus the junkyard would fail to meet the former § 4408 definition of nonconforming use

because it would not have ‚conformed to all applicable laws, ordinances and

regulations prior to the enactment of *zoning+.‛ In either case, the zoning violation

would have first occurred in 1986 when zoning went into effect, more than fifteen years

before the December 5, 2003 Notice of Violation.        The Notice of Violation would

therefore be time-barred under 24 V.S.A. former § 4496(a), now amended and codified

at § 4454(a), unless Appellant’s use of the back field has expanded, or is so distinct from

its use by Appellant’s predecessors-in-interest, that it constitutes a new violation. These



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fact-dependent questions are the proper subject of a merits hearing, as facts necessary to

answer these questions are in dispute and are not in the record as it now stands.

        In particular, evidence needs to be presented at the merits hearing so that the

Court may make a determination on the following two legal issues:

        1.      To what extent was Appellant’s use of the property as of the Notice of

Violation similar to or different from the prior use, to the extent such prior use was a

lawful, pre-existing, nonconforming use?                  Because the Appellant asserts, as an

affirmative defense, that it is continuing a lawful, pre-existing, non-conforming use,

Appellant will carry the initial burden of proof at trial in establishing the specific

parameters of that prior use. V.R.C.P. 8(c).7

        2.      To the extent that Appellant is continuing a lawful, pre-existing,

nonconforming use, to what extent has such use been expanded beyond the scope of the

prior use? In the event that Appellant fulfills its burden of proof as to question #1,

above, the Town will carry the initial burden of proof on this evidentiary issue

regarding expansion.



        Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED

that the pending motions for summary judgment are both DENIED, and Appellant’s

motion to deem Appellant’s statement of material facts uncontested is GRANTED.

        In anticipation of the trial, the Court requests that the parties discuss the

possibilities for settlement through mediation and advise the Court on whether such

efforts prove successful. Failing such a settlement, the Court anticipates that the trial


7See also Town of Shelburne v. Kaelin, 136 Vt. 248, 251 (1978) (‚V.R.C.P. 8(c) provides that ‘a party shall
affirmatively set forth and establish . . . (any) matter constituting an avoidance or affirmative defense.’
The defense of nonconforming use is in the nature of a confession and avoidance, the pleader confessing
that his use violates the current zoning regulations, but avoiding the complaint with the new matter that
the use was lawful prior to the regulations. Thus, appellee had the burden of pleading and proving his
defense of prior nonconforming use‛).
                                                        -7-
will require no more than one day of hearing, unless the parties advise the Court

Manager otherwise by Tuesday, December 27, 2005.          At this juncture, the Court

anticipates that the trial could be scheduled for sometime between Monday January 30

and Thursday, February 16, 2006 (February 2nd, 3rd, 8th, & 15th having already been

scheduled for other merits hearings). All parties shall advise this Court no later than

Tuesday, December 27, 2005, as to dates they or their witnesses would be unavailable

during this time period.



      Done at Berlin, Vermont, this 16th day of December, 2005.




                                           _______________________________________
                                              Thomas S. Durkin, Environmental Judge




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