                                      State of Vermont
                           Superior Court—Environmental Division

======================================================================
                   ENTRY REGARDING MOTION
======================================================================
Town of New Haven v. Clark                                              Docket No. 25-3-13 Vtec
(Municipal Enforcement)

Title: Motion of Plaintiff Town of New Haven for Judgment on the Pleadings
Filed: October 30, 2013
Filed By: Town of New Haven
Response: In opposition filed on December 2, 2013 by Donald and Jenny Clark
 X Granted in part                        X Denied in part                            Other


        The Town of New Haven (“the Town”) seeks judgment on the pleadings in this
municipal enforcement action against Donald and Jenny Clark. Specifically, the Town argues
that, even when taking as true all assertions in the Clarks’ Answer (filed May 8, 2013), the Court
must conclude that the Clarks no longer may challenge the Town’s representation that certain
zoning violations occurred at the Clarks’ property. As a consequence, the Town asserts that it is
entitled to judgment as a matter of law, including the right to injunctive relief and fines. The
Clarks oppose the Town’s motion.
        The Clarks acknowledge that they were served with a March 13, 2012 Notice of
Violation (“NOV”), that they did not timely appeal, and that they therefore can no longer
contest that unappealed NOV. The Clarks argue, however, that the Town has not established
that the violations continued when this enforcement action commenced. The Clarks also argue
that the NOV cannot form the basis for finding a violation occurred with respect to the filling of
their land, because the NOV states that the Clarks’ pond was “in the process of being filled” at
the time of the NOV. We address these two arguments in turn below, concluding that while the
Town is entitled to judgment on a portion of its complaint, it is not entitled to judgment on the
whole of its complaint. We therefore GRANT the Town a partial judgment on the pleadings,
but DENY the remainder of its judgment request.
       The Town is represented in these proceedings by Cindy Ellen Hill, Esq., and the Clarks
are represented by Fritz Langrock, Esq.
       We begin by noting that when considering a motion for judgment on the pleadings, this
Court must “take the facts as pleaded by the nonmoving party as true,” and we may only grant
the motion if the moving party is entitled to judgment as a matter of law, based only on “facts
as asserted in the pleadings.” In re Knapp, 152 Vt. 59, 63 (1989); V.R.C.P. 12(c). We therefore
analyze the Town’s motion with the assumption that all facts pleaded by the Clarks are true and
disregard all contravening pleadings presented by the Town.
        In their Answer, the Clarks admit that the Town of New Haven Zoning Administrator
(“ZA”) advised them by the March 13, 2012 NOV that multiple zoning violations had occurred
at their property at 934 North Street in New Haven, Vermont, including:
New Haven v. Clark, No. 25-3-13 Vtec (EO on Mot. for Judgment on Pleadings) (2-14-14)        p. 2 of 2


    •   a change in the prior permitted use of their property for a feed-mixing business
        to a trucking business and fabrication/repair shop;
    •   operation of the trucking business and a fabrication/equipment repair shop
        without a permit; and
    •   filling of a pond.
        (Complaint at ¶¶ 13–14, filed Mar. 4, 2013); (Answer at ¶¶ 13–14, filed May 8, 2013.)
        The Clarks also admitted that they did not appeal the March 13 NOV. (Answer at ¶ 15,
filed May 8, 2013.) Thus, taking the facts as pleaded by the Clarks as true, we conclude that the
Town is entitled to judgment as a matter of law on the issue of whether the violations described
in the March 13 NOV occurred. See Town of Georgia v. King, No. 105-6-10 slip op. at 5 (Vt.
Super. Ct. Envtl. Div. Aug. 25, 2011) (Durkin, J.) (“An argument going to whether there was a
violation could have been raised in an appeal of the NOV itself, but cannot now be raised in this
enforcement action brought by [the municipality]”); 24 V.S.A. § 4472(d) (if persons with a right
to appeal the NOV fail to do so within 15 days, they “shall be bound by that decision”).
       Nevertheless, we must also conclude that the pleadings fail to establish (1) the duration
of each violation described in the March 13 NOV and (2) what fines or penalties are
appropriate. Specifically, we are unable to conclude whether each violation continued beyond
the seven-day cure period beginning March 13, within which the Clarks had the opportunity to
cure the violations in order to avoid an enforcement action against them. 24 V.S.A. § 4451(a).
We are also unable to determine for how long the violations continued, or if, and when, any of
these violations were cured. These findings are necessary to determine whether this
enforcement action is appropriate under § 4451(a) and, if so, the specific relief to which the
Town is entitled under 24 V.S.A. §§ 4451 and 4452.
        We note for the benefit of the parties that even if the Clarks proved at trial that the
violations have been cured at some point after the seven-day warning period expired, these
enforcement proceedings are not foreclosed and the timing of the cure is material only as to the
assessment of penalties. Finally, because the Town does not reference the May 10, 2012 NOV in
its motion, our conclusions here do not affect that portion of the Town’s enforcement action.
        For the reasons stated more fully above, we conclude that the zoning violations
identified in the March 13 NOV must be deemed admitted as a matter of law and we therefore
GRANT the Town’s motion for judgment on the pleadings as to this portion of its Complaint
(specifically, paragraph 14). The remainder of the Town’s motion is DENIED. The Court will
set this matter for a conference in 30 days in order to determine how to proceed on the
remaining issues.


_________________________________________                            February 14, 2014
        Thomas S. Durkin, Judge                                          Date
======================================================================
Date copies sent: ____________                                           Clerk's Initials: _______
Copies sent to:
 Cindy Ellen Hill, Esq., Attorney for the Town of New Haven
 Fritz Langrock, Esq., Attorney for Donald and Jenny Clark
