2013 VT 41


In re Beliveau NOV, Town of
Fairfax v. Beliveau (2012-135 and 2102-136)
 
2013 VT 41
 
[Filed 14-Jun-2013]
 
NOTICE:  This opinion is
subject to motions for reargument under V.R.A.P. 40 as well as formal revision
before publication in the Vermont Reports.  Readers are requested to
notify the Reporter of Decisions by email at: JUD.Reporter@state.vt.us or by
mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont
05609-0801, of any errors in order that corrections may be made before this
opinion goes to press.
 
 

2013 VT 41

 

Nos. 2012-135 & 2012-136

 

In re Beliveau NOV


Supreme Court


 


 


Town of Fairfax


On Appeal from


 
    v.


Superior Court, 
Environmental Division


 


 


Leon Beliveau


January Term, 2013


 


 


 


 


Merideth
  Wright, J.


 

Peter J. McDougall of Paul Frank + Collins P.C., Burlington,
for Appellant.
 
John H. Klesch of Stitzel, Page & Fletcher, P.C.,
Burlington, for Appellee.
 
 
PRESENT:  Reiber, C.J., Dooley, Skoglund, Burgess and
Robinson, JJ.
 
 
¶ 1.            
SKOGLUND, J.  Homeowner appeals the Superior Court,
Environmental Division’s grant of summary judgment in favor of the Town of
Fairfax and imposition of associated penalties.  The court upheld the
Town’s violation, finding that homeowner changed the use of his property from a
single-family dwelling to a rooming-and-boarding house without obtaining a
change-of-use permit as required by the applicable zoning bylaws.  Homeowner
contends: the trial court erred in finding that the property was used as
rooming-and-boarding house; the definitions of family and rooming-and-boarding
house in the Town’s zoning bylaws are unconstitutionally vague; and the court
improperly assessed the accompanying fines.  We affirm.
¶ 2.            
As found by the environmental court, homeowner owns a house in the Town
of Fairfax.  He uses his home as both his personal residence and as
a rental property.  He maintains a bedroom for his exclusive use and rents
the remaining portions of his home.  Homeowner began providing sleeping
accommodations in his home, charging for and receiving payments for those
accommodations sometime around June 2008.  Occupants paid a set monthly
rent based on the oral agreement formed between each occupant and homeowner.
 Neither homeowner, nor occupant was obligated to continue the rental
relationship beyond the month for which rent was currently paid.  
¶ 3.            
In May 2008, the zoning administrator for the Town personally served
homeowner a letter informing him that his house was impermissibly employed as a
rooming-and-boarding house as a result of his failure to obtain the requisite
zoning permit for the change in use from a single-family dwelling.  Homeowner
was informed that he could cure the violation by either “obtaining all the
necessary permits and approvals or by terminating the use.”  Homeowner
did neither.  The zoning administrator issued a formal notice of violation
for the unpermitted change in use on June 5, 2008. 
¶ 4.            
Homeowner appealed the violation to the Fairfax Development Review
Board, which found that the homeowner “did change the use of the
home . . . from a single family home to a Rooming/Boarding
house without obtaining the required permits.”  Homeowner then appealed
the Board’s decision to the environmental court.  Soon thereafter, the
Town filed an enforcement action with the court against homeowner.[1]  On June 24, 2009, the Town filed a
motion for summary judgment, which the court granted, upholding the violation.  The
court entered a judgment against homeowner and levied a penalty in the amount
of $22,770 against homeowner. 
¶ 5.            
Homeowner appealed the environmental court’s decision to this
Court.  In July 2010, this Court reversed the environmental court’s
decision and remanded the case for additional proceedings, finding that the
Town provided no evidence “that [homeowner] resided in the home during the
period in question” and “failed to demonstrate that individuals were supplied
with and charged for sleeping accommodations ‘for a fixed period of
time’ ”—both necessary elements of the rooming-and-boarding definition in
the Town’s zoning bylaws, as discussed in detail below.  In re Beliveau
Notice of Violation, Nos. 2010-064, 2010-065, 2010 WL 7795009, at * 2 (Vt.
July 16, 2010) (unpub. mem.),
http://www.vermontjudiciary.org/d-upeo/Microsoft%20Word%20-%20eo10-064.pdf. 
¶ 6.            
On remand, the parties conducted additional discovery, and then both
filed cross-motions for summary judgment.  The environmental court granted
summary judgment in favor of the Town, determining that homeowner had changed
the use of his house from a single-family residence to a rooming-and-boarding
house without first obtaining a permit for the rooming-and-boarding-house use.
 The court imposed a penalty of $63,142 against homeowner and ordered the
immediate cessation of use of the property as a rooming-and-boarding home.
 Homeowner appeals.
¶ 7.            
This Court reviews decisions on motions for summary judgment de
novo.  Mooney v. Town of Stowe, 2008 VT 19, ¶ 5, 183 Vt. 600, 950
A.2d 1198 (mem.).  A grant of “[s]ummary judgment is appropriate when,
giving the benefit of all reasonable doubts and inferences to the nonmoving
party, there are no genuine issues of material fact and the moving party is
entitled to judgment as a matter of law.”  Gade v. Chittenden Solid
Waste Dist., 2009 VT 107, ¶ 7, 187 Vt. 7, 989 A.2d 491.  “When both
parties move for summary judgment, each is entitled to the benefit of all
reasonable doubts and inferences when the opposing party’s motion is being
judged.”  City of Burlington v. Fairpoint Commc’ns, Inc., 2009 VT
59, ¶ 5, 186 Vt. 332, 980 A.2d 226 (citing Toys, Inc. v. F.M. Burlington Co.,
155 Vt. 44, 48, 582 A.2d 123, 125 (1990)).
¶ 8.            
Our review of environmental court decisions is deferential.  In
re Sardi, 170 Vt. 623, 623, 751 A.2d 772, 773 (2000) (mem.).  This
Court is bound by the environmental court’s interpretation of a zoning
ordinance unless it is clearly erroneous, arbitrary, or capricious.  Badger
v. Town of Ferrisburgh, 168 Vt. 37, 39, 712 A.2d 911, 913 (1998). 
¶ 9.            
Homeowner challenges the environmental court’s determination that as a
matter of law his property was used as a rooming-and-boarding house.  The
zoning bylaws define a rooming-and-boarding house as “[a]n owner occupied
residence where a person or persons, for a fixed period of time, are supplied
with and charged for meals or sleeping accommodations or both.”  For a
property to be rendered a rooming-and-boarding house under the bylaws, each of
the three elements must be met: (1) the residence must be occupied by the
owner; (2) a person or persons must be supplied with and charged for meals or
sleeping accommodations or both; and (3) such provisions must be for a fixed
period of time.  It is undisputed that at all relevant times, the property
was homeowner’s primary residence.  It is also undisputed that other
individuals living at the property were provided with, and charged for,
sleeping accommodations.  Homeowner contends that because individuals
staying at the premises were doing so on an at-will basis and were free to stay
for an indefinite period of time, pursuant to oral agreements between each
individual and homeowner, the third element—that accommodations be supplied for
a fixed period of time—was not satisfied.  
¶ 10.        
The agreements between homeowner and the individuals residing in his home
were as follows.  Homeowner entered into an oral agreement with each
individual, stating they were to “pay X dollars per month for the use of the
rooms.”  On occasion, homeowner permitted individuals to continue residing
at his home despite their failure to pay the full, agreed-upon amount for a
particular month.  A tenant who wished to remain another month in the
house then paid homeowner an additional month’s rent at the agreed-upon
rate.  If agreeable to him, homeowner accepted the rent payment.  The
environmental court concluded, and we agree, that this was a rental agreement
for a fixed month-to-month term. 
¶ 11.        
Homeowner claims that the oral agreement created an at-will tenancy
pursuant to 27 V.S.A. § 302.  Section 302 of Title 27 provides that
“[e]states or interests in lands, created or conveyed without an instrument in
writing shall have the effect of estates at will only.”  By its very
nature, a tenancy at will intimates indefinite durational terms.  A
tenancy at will is one “in which the tenant holds possession with the
landlord’s consent but without fixed terms (as for duration or rent).” 
Black’s Law Dictionary 1604 (9th ed. 2009).  Nonetheless, common law and
our case law provide that an estate at will is converted into a periodic tenancy
by the payment of rent.  The conversion is wrought when the lessor
receives a periodic rent, be it month-to-month or year-to-year, etcetera. 
See Silsby v. Allen, 43 Vt. 172 (1870); Black’s Law Dictionary, supra,
at 1604.  
¶ 12.        
In the present case, the individuals residing at homeowner’s home made
continuous monthly payments, creating a periodic tenancy—a “tenancy that
automatically continues for successive periods.”  Black’s Law Dictionary, supra,
at 1604.  It is of little consequence that the successive periods at issue
here were for a relatively short period of time—a month.  A fixed period
can be for any duration.  The fact that homeowner did not always require
his tenants to pay the full amount of agreed-upon rent and allowed certain tenants
to forgo some rent payments and provide maintenance or repair services in lieu
of rent also does not change the result.  Further, homeowner acknowledged
that he was required to provide tenants with the requisite statutory notice
before terminating the rental agreement.  See generally 9 V.S.A. § 4467.
 
¶ 13.        
Following homeowner’s suggested approach—that only agreements with
specific or set end dates satisfy the fixed period requirement under the
bylaws—would create absurd results.  Indeed, such a narrow interpretation
would arguably eliminate periodic tenancies, renewable tenancies, or any other
arrangements that lack a precise termination date.  To accept this
assertion would render a portion of the rooming-and-boarding definition meaningless. 
“Generally, we do not construe a statute in a way that renders a significant
part of it pure surplusage.”  In re Lunde, 166 Vt. 167, 171, 688
A.2d 1312, 1315 (1997) (quotation omitted).  We find the environmental
court’s interpretation that homeowner provided sleeping accommodations for a
fixed period of time and therefore operated a rooming-and-boarding house
reasonable.  As such, homeowner changed the use of his property from a
single-family dwelling to a rooming-and-boarding house without obtaining the necessary
permits and thus violated the Town’s zoning bylaws. 
¶ 14.        
Homeowner next contends that the definitions of family and
rooming-and-boarding house under the Town’s zoning bylaws are
unconstitutionally vague.  Homeowner argues that such definitions “fail to
provide the required notice, clarity and precision to permit a homeowner [to]
determine what is necessary for compliance.” 
¶ 15.        
Laws and regulations are unconstitutionally vague when they either fail
to provide sufficient notice for ordinary people to understand what conduct is
prohibited, or allow arbitrary and discriminatory enforcement.  In re
Rusty Nail Acquisition, Inc., 2009 VT 68, ¶ 12, 186 Vt. 195, 980 A.2d
758.  The test for vagueness is less strict when applied to regulations
that affect “economic interests, not constitutional rights, and when the
aggrieved party can seek clarification of its meaning or resort to
administrative processes.” Id. ¶ 13 (quotation omitted).  The
application of the vagueness doctrine is relaxed in the context of economic
regulations because there are several opportunities for the voters of Fairfax
to participate in the adoption or amendment of bylaws.[2]  See 24 V.S.A. § 4442. 
Additionally, the Development Review Board provides property owners with an
interpretation as to the precise meaning of any word(s), if requested.  Because
there are several ways for an individual to request change and seek
clarification from the Town and the select board, “the concern that ordinary
people will not be able to understand what conduct is prohibited is greatly
tempered” in this regulatory context.  See Rusty Nail, 2009 VT 68,
¶ 14. 
¶ 16.        
In light of this, “we are unlikely to intervene for persons who had the
opportunity to clarify their responsibilities and did not use it.”  Id.
¶ 15 (quotation omitted).  Here, homeowner bypassed the opportunity to
seek clarification from the review board regarding the use of his property, and
in fact, he tried to eliminate the permitting process altogether when, after
the initial citation, he neither discontinued the use nor sought a conditional
use permit as the zoning administrator instructed.  Instead, homeowner
waited until he was cited for violating the bylaw to challenge its constitutionality. 
Our case law indicates that “we approach a vagueness challenge such as the one
here with a critical eye.”  Id. ¶ 15; see also Rogers v. Watson,
156 Vt. 483, 492, 594 A.2d 409, 414 (1991) (denying defendants’ void for
vagueness challenge when after being denied permitting, they unilaterally
proceeded to try to eliminate need for one).  With this in mind, we review
the bylaws.
¶ 17.        
The Town’s zoning bylaws define family as “[o]ne or more persons living
as a household unit, but not including individuals or groups occupying rooming
and boarding houses, clubs, motels, or hotels.”  As such, a family is not
necessarily comprised of relatives only, but rather, of a group of people living
as a household, in contrast to persons who occupy rooming-and-boarding
homes, clubs, motels, or hotels.  As noted above, a rooming-and-boarding
house is defined as “[a]n owner occupied residence where a person or persons,
for a fixed period of time are supplied with and charged for meals or sleeping
accommodations or both.”  
¶ 18.        
Homeowner argues that the definitions lack clarity and fail to provide a
property owner with the requisite notice to determine compliance.
 Homeowner claims that the definitions as they stand require the Town to
infringe on a property owner’s right to privacy because in order to assess
whether a household unit exists, the Town must investigate who resides at the
property and how those living together interact, i.e., whether they eat meals
together, watch television together, share bathrooms, or shop for food
together.  
¶ 19.        
True, the distinction between a rooming-and-boarding house and family
revolves around the household dynamic and interactions therein.  And,
while ascertaining the use of the dwelling requires some information about
personal interactions, a mere questionnaire as was used here would suffice.
 And the distinction is clear enough to avoid giving the zoning
administrator unfettered discretion.  As the trial court pointed out,
other jurisdictions that have addressed this issue have found that
single-family zoning regulations include groups of unrelated persons living
together where the living arrangement is stable, permanent, and not for profit,
and the people living together function in a manner similar to a traditional
family unit. See, e.g., Borough of Glassboro v. Vallorosi, 568 A.2d 888,
894 (N.J. 1990); In re Miller, 515 A.2d 904, 908 (Pa. 1986); cf. In
re Stoddard Site Plan, No. 254-12-05, slip op. at 5-6 (Vt. Envtl. Ct. June
21, 2006), http://www.vermontjudiciary.org/gtc/environmental/ENVCRTOpinions2005-2009/05-254z%20Stoddard%20sjo.pdf
(finding that proposed multi-family dwelling unit did not contain sufficient
common facilities to qualify as a “housekeeping unit”).  Here, the
environmental court found that homeowner provided no evidence suggesting that
the persons renting rooms at the house functioned as a family or household unit
in any way.
¶ 20.        
When read together, the definitions of rooming-and-boarding house and
family provide sufficient guidance to avoid standardless discretion on the part
of the zoning administrator.  The definitions also provide a property
owner with a general understanding of how to comply with the bylaws,
notwithstanding the built-in mechanisms for a property owner to seek
clarification from the review board.  Accordingly, we hold that the
definitions of rooming and boarding house and family within the Town’s zoning
bylaws are not unconstitutionally vague.  We agree that the situation at
homeowner’s house is not a family unit.  
¶ 21.        
Homeowner lastly contests the environmental court’s penalty
assessment.  The Town requested a penalty of $93,420, aggregating
homeowner’s economic gain and the Town’s expenses.  Homeowner believed the
fine, if any, to be the cost of the zoning permit application.  Pursuant
to 24 V.S.A. § 4451(a), the court imposed a penalty of $63,142, or $56.48 per
day for a violation period of 1118 days, payable to the Town. 
¶ 22.        
The trial court is given broad discretion in setting a fine pursuant to
24 V.S.A. § 4451.  Unless there is abuse of discretion, the
environmental court’s penalty assessment will not be overturned.  See Town
of Hinesburg v. Dunkling, 167 Vt. 514, 529, 711 A.2d 1163, 1172 (1998).
¶ 23.        
Section 4451 of Title 24 authorizes a maximum fine of $100 per violation
of a zoning bylaw each day such a violation continues.[3]  The court has the discretion to
determine the amount of a 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.  In re Jewell, 169 Vt. 604, 606-07, 737 A.2d 897, 900 (1999)
(mem.). Here, the environmental court considered homeowner’s benefit, as well
as the Town’s expenses for attorney’s fees and court costs in seeking
compliance with the zoning regulations.  The court recognized that
homeowner had the benefit of the zoning violation from early 2007 through late
2011, or 1118 days, including a brief cessation of the violation and a
seven-day cure period provided by the statute.  The court did not account
for expenses incurred from the rentals.  It reasoned that homeowner would
“have had to pay the taxes, mortgage, utilities, repairs, supplies, cleaning,
maintenance, and insurance” as a homeowner, regardless of whether he rented out
these rooms.  The court also weighed the fact that the length of the
violation “was within [homeowner’s] control.”  In sum, the trial court
calculated the penalty to remove the economic benefit and the avoided costs
achieved by homeowner, as well as to compensate the Town generally for the
legitimate costs of bringing the enforcement actions.  See Town of
Calais v. Noordsi, No. 142-6-06 Vtec, slip op. at 7 (Vt. Envtl. Ct. Aug.
29, 2008),
http://www.vermontjudiciary.org/gtc/environmental/ENVCRTOpinions2005-2009/06-142zd.
TCalaisvNoordsij.dec.pdf (citing City of Albans v. Hayford, 2008 VT 36, ¶¶
15-18, 183 Vt. 596, 949 A.2d 1058) (mem.). 
¶ 24.        
On appeal, homeowner argues that the economic benefit he obtained from
the violation should be measured by the avoided cost of compliance, that is,
the cost of the zoning application.  Homeowner cites Agency of Natural
Resources v. Deso, 2003 VT 36, 175 Vt. 513, 824 A.2d 558 (mem.), in support
of his claim.  In Deso, the Agency of Natural Resources imposed a
fine on the owner of a gas station who impermissibly operated the station
without the required vapor recovery system.  There, the court held that
the owner was not required to disgorge all profits earned during the period of
noncompliance because there was insufficient evidence to determine that all
profits were an economic benefit of the violation.  Rather, it expounded
that there “must be at least some evidence of cause and effect between the
misconduct and an unfair economic advantage gained from the
misconduct . . . for example, if [the violator] had gained
higher profit margins or increased market share by selling cheaper gas.”  Id.
¶ 11.  In other words, the court held that all profits gained through a
violation are not necessarily an economic benefit of the violation, but when
the violation gives the violator a competitive advantage, profits correlating
to the advantage are an economic benefit subject to penalty by
confiscation.  Id. ¶ 9; see also 10 V.S.A. §§ 8001(2),
8010(b)(5).  Homeowner asserts that the same is true in his case; that is,
he should not be required to relinquish all benefits associated with the
violation but rather only those that afforded him a competitive advantage over
his competitors, which he presumes is the cost of the application of the
permit.  Homeowner’s argument is unavailing. 
¶ 25.        
Homeowner fails to recognize that this Court in Deso found that
the cost alternative approach was not applicable in cases where a violation
consists of the start of business operations without a permit, as is the case
here.  See, e.g., Agency of Natural Res. v. Godnick, 162 Vt. 588,
597, 652 A.2d 988, 994 (1994) (employing economic-benefit calculation from use
of newly constructed warehouse prior to obtaining final Act 250 permits).
 Furthermore, in July 2008, the Legislature made express that an economic
benefit includes “a reasonable approximation of any gain, advantage, wrongful
profit, or delayed avoided cost, financial or otherwise, obtained as a result
of a violation. Economic benefit shall not be limited to only competitive
advantage obtained.”  10 V.S.A. § 8002(11). 
¶ 26.        
Moreover, the applicable statute authorized the environmental court to
impose up to $100 per violation of a zoning bylaw.  24 V.S.A. § 4451(a).
 At any time homeowner either could have applied for approval of the
rooming-and-boarding house use, or could have restored the single-family use of
the house.  Because, the penalty that the court imposed was well
below the amount allowed by statute, and homeowner had ample opportunity to
cure the violation following notice from the Town, the penalty was reasonable. 
Affirmed.

 


FOR THE COURT:


 


 


 


 


 


 


 


Associate
  Justice

 





[1] 
Though the two cases were not formally consolidated by the environmental court,
the court operated as though they were. 


[2]
 The Fairfax Select Board held three public hearings and garnered public
input before adopting the most recent amendments in 2007.  


[3]
 In 2011, the Legislature amended the statute to allow for fines up to
$200 per day. Since the activities in question were conducted from 2007 to
2011, the statute that was in effect from 2003 to 2011 controls.



