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



                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2013-081

                                     NOVEMBER TERM, 2013

 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:

        Landowner appeals pro se from an Environmental Division decision finding that he
violated provisions of the Town of Colchester zoning regulations by converting a seasonal
dwelling to a year-round dwelling without a permit, and imposing a fine of $21,840 for the
continuing violation. Landowner contends: (1) the evidence was insufficient to support the
finding of a violation; (2) he did not receive timely notice of the violation; (3) the fine imposed
was excessive; (4) the court’s finding of earlier violations was unsupported; and (5) the grant of
injunctive relief constitutes an unconstitutional taking without compensation. We affirm in part
and reverse in part.

        The facts may be succinctly summarized. Landowner owns a residence or camp in
Colchester, near Lake Champlain, that is classified under the Town’s zoning regulations as a
“summer seasonal dwelling” that “may be occupied from April 1st through October 31st and shall
be vacated at all other times.” Town of Colchester Zoning Regulations (“Regulations”)
§ 10.14(B). The camp is served by a wastewater disposal system that does not conform to Town
or State regulations but is allowed as a preexisting non-conforming system. Conversion to a
year-round dwelling for occupation is allowed under the regulations through the building-permit
process if the Town determines, among other things, that the dwelling’s septic system conforms
with all current Town and State regulations. Regulations § 10.14(C).

         On November 8, 2010, the Town issued a notice of violation to landowner for converting
the camp to a year-round dwelling without a permit. The notice was based on an inspection of
the property by the Town’s building inspector, who observed two vehicles in the driveway, items
on the porch and in the yard that had not been put away for the season, firewood, and heat from
the chimney. Landowner did not cure or appeal the alleged violation. The Town’s building
inspector returned to the property on several further occasions in December 2010, observed
evidence of continued occupation—including vehicles, a chainsaw, changes in the size of the
woodpile, and a BBQ grill that appeared to have been recently used—and issued three municipal
citations for year-round occupation of a seasonal dwelling without a permit. Landowner did not
respond to the citations, and the judicial bureau issued default judgments in January 2011.
         In March 2011, the Town filed a complaint against landowner for penalties and injunctive
relief, alleging conversion of the property from a seasonal to a year-round dwelling without a
permit, in violation of Regulation § 10.14. A trial on the matter was held in September 2012.
The court entered findings on the record at the conclusion of the hearing, followed by a written
decision and judgment order in January 2013. The court found on the record that landowner
received notice of the violation at least as of March 31, 2011, and that the evidence supported a
finding that landowner had occupied the property out of season without a permit, as alleged. In
its written decision, addressed to the fine to be imposed, the court additionally found that the
Town had issued earlier notices of violations in 2002 and 2004 which did not result in
compliance; that the evidence disclosed “a determined plan” by landowner to ignore the Town’s
conformance requests; that the Town had incurred expenses, including legal fees and other labor
costs, in excess of $15,280 in responding to the violations; and that landowner had converted the
camp to a year-round residence without a permit for a period of 546 days, measured from the
date of notice of violation on April 1, 2011 to the date of the trial on September 28, 2012. The
court concluded that a fine of $45 per day for the continuing violation was warranted, for a total
fine of $21,840. The court also granted injunctive relief in favor of the Town, prohibiting
landowner from occupying the residence between November 1 and March 31 until he secured the
necessary permits for year-round occupation. This appeal followed.

        Landowner contends the evidence was insufficient to support the finding that he occupied
the camp year-round. Our review of the court’s factual findings is limited. “We will uphold the
findings of fact unless they are clearly erroneous, viewing the supporting evidence in a light most
favorable to the prevailing party.” Town of Bethel v. Wellford, 2009 VT 100, ¶ 5, 186 Vt. 612
(mem.). Given the trial court’s “unique position to assess the credibility of witnesses and weigh
the evidence,” Begins v. Begins, 168 Vt. 298, 301 (1998), a finding will not be overturned unless
“there is no credible evidence to support” it. Town of Bethel, 2009 VT 100, ¶ 5 (quotation
omitted).

        Here, as noted, the Town’s building inspector observed various indicia of occupation in
November and December 2010, including parked cars, equipment and grills outside the camp
that appeared to have been recently used rather than stored for the winter, a woodpile that
changed size, and heat from the chimney. Furthermore, landowner acknowledged at trial that he
was at the camp for a “good portion” of December 2010, as well as the subsequent winters of
2011 and 2012, and that he may have “taken a nap” on occasion, but denied that he ever slept
there overnight. The evidence, taken as a whole, was thus sufficient to support the trial court’s
rejection of landowner’s assertion as not credible, and its finding that he had converted the camp
to a year-round dwelling for occupation without a permit in violation of the Town’s zoning
regulations.

        Landowner next contends he did not receive adequate or timely notice of the violation
issued by the Town in November 2010. He acknowledged at trial, however, that he received
notice of the complaint in this matter, with the notice of violation attached, in March 2011.
Furthermore, landowner makes no showing that he has prejudiced by the purported delay,
particularly in view of the continuing nature of violation. See 24 V.S.A. § 4451 (action may be
brought without seven-day notice and opportunity to cure “if the alleged offender repeats the
violation of the bylaw or ordinance after the seven-day notice period and within the next
succeeding 12 months”). Landowner also suggests that “there [was] nothing to correct” in
March 2011 because he was then entitled to occupy the residence, but the claim overlooks that
the alleged violation was conversion to year-round use without a permit, a continuing violation.
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Landowner also claims the evidence did not support the court’s reliance on earlier violation-
notices issued by the Town in 2002 and 2004, as well as three municipal tickets issued in
December 2010 on which landowner defaulted. On the contrary, the record contained ample
evidence to support the court’s findings and reliance.

        Landowner further asserts that, by including the days of seasonal use between April 1,
2011 and October 31, 2011 in the fine calculation, the trial court improperly imposed a “fine[]
for using his property as permitted.” The trial court is afforded broad discretion to determine the
fine to be imposed under 24 V.S.A. § 4451. In re Beliveau NOV, 2013 VT 41, ¶¶ 21-23,
___ Vt. ___, 72 A.3d 918. Nevertheless, we agree 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. See 24 V.S.A. § 4451(a) (authorizing fine of $100 per day for each
offense—increased in 2012 to $200 per day—and providing that “[e]ach day that a violation is
continued shall constitute a separate offense”). Accordingly, the matter must be remanded to the
trial court to reconsider the fine to be imposed within this timeframe.

        Finally, landowner contends the injunction against occupation of the property from
November 1 to March 31 until landowner secures the necessary permits violates the
constitutional prohibition against the taking of property without just compensation. Landowner
did not raise this claim below, although the Town consistently sought both monetary and
injunctive relief, and cites no authority to support the claim on appeal. Furthermore, nothing in
the record suggests that landowner, who remains free to occupy the property for seasonal use and
even potentially year-round use if and when he applies for a permit, has been conclusively
denied “all reasonable beneficial use” of the property. Killington, Ltd. v. State, 164 Vt. 253, 257
(1995) (quoting Williamson Cnty. Reg’l Planning Comm’n v. Hamilton Bank, 473 U.S. 172,
193-94 (1985), which held that regulatory takings claim requires plaintiff to obtain final decision
conclusively showing that landowner has been denied all reasonable beneficial use of the
property). Accordingly, we find no basis for the claim.

       Affirmed in part, reversed in part, and remanded.



                                                BY THE COURT:


                                                _______________________________________
                                                John A. Dooley, Associate Justice

                                                _______________________________________
                                                Marilyn S. Skoglund, Associate Justice

                                                _______________________________________
                                                Geoffrey W. Crawford, Associate Justice




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