                                       State of Vermont
                            Superior Court—Environmental Division

======================================================================
                  ENTRY REGARDING MOTION
======================================================================

In re Sanfacon NOV                                                       Docket No. 48-4-12 Vtec
(Appeal of DRB decision upholding a NOV)

Title: Motion to Stay (Filing No. 1)
Filed: April 10, 2012
Filed By: Appellants John and Phyllis Sanfacon
Response filed on 4/27/12 by Interested Person William Pollock
Reply filed on 5/10/12 by Town of East Montpelier

  ___ Granted                          X   Denied                       ___ Other

        On April 10, 2012, John and Phyllis Sanfacon (Appellants) appealed the Findings and
Decision of the East Montpelier Development Review Board (the DRB) that upheld a Notice of
Violation (the NOV) issued by the Town of East Montpelier’s Zoning Administrator against
Appellants for placing unpermitted structures on their 10.8 acre lot on Wheeler Road in the
Town of East Montpelier and for maintaining an unpermitted junkyard. On the same day,
Appellants filed the pending motion for a stay of enforcement of the NOV.

        While the Court does not currently have before it an enforcement action by the Town of
East Montpelier (the Town) against Appellants, we understand Appellants’ motion to request a
stay of the NOV’s requirements that 1) Appellants cease violating the Town’s zoning ordinance
by removing any unpermitted structures and debris, and 2) subject Appellants to the calculation
of fines if they choose not to comply. Both the Town and Interested Person William Pollock
oppose the pending motion for stay.

       Pursuant to Section 5(e) of the Vermont Rules of Environmental Court Proceedings,
when a decision appealed from is not automatically stayed, this Court, on its own or upon the
motion of a party, may issue a stay when it is “necessary to preserve the rights of the parties.”
V.R.E.C.P. 5(e); cf. V.R.C.P. 62(d)(2). In determining whether the equities weigh in favor of
issuing a stay, we consider: (1) whether the appealing party has a strong likelihood of success
on the merits, (2) whether denying the stay will cause irreparable harm to the moving party, (3)
whether the issuance of the stay will substantially harm other parties, and (4) whether the stay
would serve the best interests of the public. See In re Allen Road Land Co., Nos. 62-4-11 Vtec
and 63-4-11 Vtec, slip op. at 5 (Vt. Super. Ct. Envtl. Div. July 6, 2011) (Durkin, J.); In re Search
Warrants, 2011 VT 88, ¶ 2 (mem.).

        Turning to the first factor, Appellants argue that there is a strong likelihood that they
will succeed on the merits because they can demonstrate that the Town was barred from issuing
the NOV by the statute of limitations for the enforcement of zoning violations. Essentially,
Appellants argue that because their violation of the Town’s zoning ordinance first occurred
Sanfacon NOV, No. 48-4-12 Vtec (EO on Mot. for Stay) (06-29-12)                                  Pg. 2 of 3.


over seventeen years ago, the fifteen-year statute of limitations for enforcing zoning violations
prevents the Town from taking action. Appellants characterize what the Town considers to be
the unpermitted structures as fifteen box trailers on their property. According to Appellants,
they first placed a trailer on their property on Wheeler Road in 1988, when they began building
their home, and then, from 1988 to 2003, placed additional trailers on their property.
Appellants’ indicate that, at that time, their property contained the subject lot plus additional
acreage. Appellants purport that in 2003 they subdivided their property, and, at some point
after doing so, moved all of the trailers onto the subject parcel.

        We are unconvinced that the history of the purported zoning violation as presented by
Appellants demonstrates that they have a strong likelihood of succeeding in their appeal of the
subject NOV. Appellants are correct that the statute of limitations codified at 24 V.S.A.
§ 4454(a) limits enforcement actions for permit violations to fifteen years “from the date the
alleged violation first occurred.”1 Thus, the Town cannot bring an enforcement action against
Appellants for violations occurring pre-1997. If the NOV issued to Appellants references only
violations occurring before 1997, the Court could, when it considers the merits of this appeal,
conclude that the NOV should not have been issued.

        Here, Appellants admit that they continued to place trailers on their property from 1988
to 2003. Although Appellants would like us to characterize the addition of the trailers to their
property as a single violation, beginning in 1988, of the Town’s zoning ordinance, we find this
characterization misleading. Each individual trailer can be characterized as a discrete
unpermitted structure, and Appellants have not provided information detailing the dates of the
collection of what the NOV refers to as the debris on their property. Consequently, we are
unconvinced that there is a strong likelihood Appellants would succeed in proving that the
statute of limitations for zoning violations prevents the Town from issuing the subject NOV.

         When analyzing the second factor, whether the moving party will suffer irreparable
injury if the stay is denied, we ask if the moving party has “made a case that such injuries are
likely and if [the moving party] would have an adequate remedy at law, should the injuries
they allege actually occur.” Allen Road Land Co., Nos. 62-4-11 Vtec and 63-4-11 Vtec, slip op.
at 6. Appellants argue that they will suffer an irreparable injury if a stay is not granted
because they will “incur unrecoverable financial loss if they comply with the Town’s order.”
(Appellants’ Mot. for Stay of Enforcement 3, filed Apr. 10, 2012.) According to Appellants,
such loss would be unrecoverable because they would need to procure a new site for the
trailers, transport them to the site, or sell the trailers and the materials contained therein. Id.

        Appellants refer only to financial losses. Even if we were to assume that these losses
are likely to occur, we cannot conclude that such losses are unrecoverable. See, e.g., Allen
Road Land Co., Nos. 62-4-11 Vtec and 63-4-11 Vtec, slip op. at 7 (indicating that inconvenience
and difficulty in calculating a financial loss does not make such loss irreparable). As such, we
conclude that Appellants will not suffer an irreparable injury if their request for stay is denied.


1
  We note that Section 4454(a) includes an exception to the fifteen-year limitations period for failure to
obtain a certificate of approval for “salvage yards,” which are defined as “any place of outdoor storage or
deposit for storing, keeping, processing, buying, or selling junk or as a scrap metal processing facility”
and “any outdoor area used for operation of an automobile graveyard.” 24 V.S.A. § 2241(7); see 24
V.S.A. §§ 2241–2283. This may or may not be applicable to the activities at issue in the NOV.
Sanfacon NOV, No. 48-4-12 Vtec (EO on Mot. for Stay) (06-29-12)                                 Pg. 3 of 3.


        The third factor we consider is whether granting the stay will substantially harm other
parties, and the fourth factor is whether the stay will serve the best interests of the public.
Appellants argue that granting the stay will not substantially harm other parties because it will
merely allow for a maintenance of the status quo—that the “trailers have been at or near [the
present] location since 1988 without causing imminent or significant harm.” (Appellants’ Mot.
for Stay of Enforcement 4, filed Apr. 10, 2012.) Appellants also argue that granting the stay
will serve the best interests of the public because the Town failed to take action against
Appellants until now despite the trailers being present on their property since 1988.

       William Pollock, an Interested Person in this appeal, responds that granting the stay will
prolong the harm that Appellants’ ongoing junkyard is causing to the neighbors’ property
values. He also asserts that the existence of the junkyard continues to hurt the character of the
surrounding neighborhood and threatens the integrity of the Town’s zoning ordinance.

       Simply because Appellants’ now-cited property use may have been ongoing for years
does not mean it has not harmed, and does not continue to harm, the surrounding neighbors
and neighborhood. Mr. Pollock’s arguments address some of the harms that can result to a
neighborhood from the continual existence of unpermitted structures and an unpermitted
junkyard. We note that the DRB found Appellants’ property use to be out of compliance with
the Town’s zoning ordinance. While we do not reach the merits of Appellants’ appeal
challenging that conclusion, Appellants have not put forward any information indicating how
allowing the cited property use to continue would benefit the public. Thus, we conclude that
granting the stay has the potential to create further harm to other parties and would not be in
the public interest.

       Taking into account the four factors discussed above, we find that the equities weigh
against granting a stay. Accordingly, we DENY Appellants’ motion for a stay of enforcement.




_________________________________________             June 29, 2012
       Thomas G. Walsh, Judge                               Date
======================================================================
Date copies sent: _________________                                  Clerk's Initials _______
Copies sent to:
   Stephen L. Cusick, Attorney for Appellants John and Phyllis Sanfacon
   Interested Person William D. Pollock
   Bruce Bjornlund, Attorney for Town of East Montpelier
