                                    STATE OF VERMONT

                                 ENVIRONMENTAL COURT

               Thomas Tafuto and Kathleen
               Tarrant-Tafuto, Plaintiffs,
                                                }
               v.                               }
                                                }    Docket No. 180-10-03 Vtec
               Frederick Viens, II, Town of     }
               Fayston, and Kevin Russell,      }
               Zoning Administrator,
               Defendants.

              Decision and Order on Defendants= Motions for Summary Judgment

Plaintiffs brought the above-captioned case under 24 V.S.A. ' 4470(c), seeking enforcement of a
zoning permit issued to Defendant Viens, or enforcement of ' 5.2 of the Fayston Zoning
Ordinance governing home occupations, and also seeking revocation of Defendant Viens= permit
due to misrepresentation. In a related case, Docket No. 86-5-03 Vtec, Thomas Tafuto and
Kathleen Tarrant-Tafuto appealed from a decision of the Fayston Zoning Board of Adjustment
(ZBA), upholding the Zoning Administrator= s actions with respect to requests to enforce a
zoning permit issued in 1999 to Frederick Viens, II, to operate an auto body shop as a home
occupation. Plaintiffs are represented by David R. Bookchin, Esq. and David L. Grayck, Esq.;
Defendant Frederick Viens, II, is represented by Lauren S. Kolitch, Esq.; Defendants Town of
Fayston and Kevin Russell are represented by Joseph S. McLean, Esq. Defendants have moved
for summary judgment.

The following facts are undisputed unless otherwise noted. In 1999 the ZBA issued a conditional
use approval to Defendant Viens to operate an auto body repair shop in his barn, as a home
occupation under ' ' 5.2 and 5.3 of the Fayston Zoning Ordinance. The permit contains six
conditions regulating the operation of Defendant Viens= business, one of which requires
Defendant Viens to comply with all state regulations relating to the business. In addition, Section
5.2.3 of the Ordinance requires that no materials or mechanical equipment be used in a home
occupation A which will be detrimental to the residential character of the dwelling or adjoining
dwellings because of vibration, noise, dust, smoke, odor, heat, glare, interference with radio or
television reception, or other undesirable factors.@

Since June of 2002, Plaintiffs have made complaints to the Zoning Administrator regarding the
operation of Defendant Viens= business, including regarding paint fumes, delivery truck idling,
and hours of operation. The complaints allude to violations of the town permit and regulations,
violations of an Act 250 permit, and violations of the state Air Pollution regulations.

Plaintiffs appealed to the ZBA from Defendant Russell= s withdrawal of a notice of violation
previously issued to Defendant Viens regarding the hours of operation violation and from
Defendant Russell= s inaction regarding their other complaints. The ZBA upheld Defendant
Russell= s action, and Plaintiffs= appeal of the ZBA= s action1 is on appeal to this Court in Docket
No. 86-5-03 Vtec.

The state zoning statute provides for enforcement of local zoning ordinances and permits under
24 V.S.A. ' ' 4444 and 4445, which allow the zoning administrator to bring actions for penalties
(after issuing a notice of violation) and for injunctive relief against those operating in violation of
their permits or of the town= s zoning ordinance. These two sections do not provide for neighbors
or other interested parties to take action directly against people alleged to be operating in
violation of their permits or of the town= s zoning ordinance. Rather, persons aggrieved by a
zoning administrator= s action or failure to act under these sections may appeal to the ZBA, as
Plaintiffs did with respect to the asserted violations at issue in this case.

Sections 4470(a) and (b) of the state zoning statute provide for the ZBA= s issuance of its
decision in such appeals. Once the ZBA has issued a decision, ' 4470(c) is an additional
enforcement provision that requires the town to take action in court to enforce the ZBA decision,
and also allows other interested persons to file a court action to enforce the ZBA decision:

(c) A municipality shall enforce all decisions of the board of adjustment or the development
review board of that municipality, and further, the superior court, district court, or the
environmental court . . . shall enforce such decisions upon petition, complaint or appeal or other
means in accordance with the laws of this state by such municipality or any interested person by
means of mandamus, injunction, process of contempt, or otherwise.

In the present instance, there is no ZBA decision2 for the Plaintiffs (or anyone else) to enforce
under ' 4470(c). It is possible that their appeal of the zoning administrator= s non-issuance of a
notice of violation (in Docket No. 86-5-03 Vtec) could result in a court order overturning the
ZBA decision, or could result in a remand and a future ZBA order. Until there is a ZBA order (or
court order) to enforce, ' 4470(c) does not provide a cause of action.

Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED that Defendants=
Motion for Summary Judgment is GRANTED, and the above-captioned complaint is
DISMISSED for failure to state a cause of action, without prejudice to any future complaint that
may be brought to enforce an order of the ZBA or of this Court. We will hold the telephone
conference already scheduled for January 20, 2004, at 4:00 p.m., to discuss scheduling the appeal
in Docket No. 86-5-03 Vtec for trial. The parties should be prepared to discuss whether there are
any other related actions, such as to revoke or enforce the Act 250 permit, to enforce the state Air
Pollution regulations, or for private or public nuisance, of which the Court should be aware, for
the purpose of consolidating any hearings. Please send the Court a copy of the zoning regulations
under a cover letter referring to Docket No. 86-5-03 Vtec, for use at the conference.

Done at Barre, Vermont, this 16th day of December, 2003.
___________________
Merideth Wright
Environmental Judge



                                           Footnotes
1.
      The ZBA does not appear to have heard evidence on or to have addressed in its decision
whether the permit should be revoked for misrepresentation, nor is it clear that Plaintiffs
requested such action from the ZBA. In the conference (see final paragraph of this decision) we
will discuss whether this issue has yet been brought before the ZBA. The ZBA also does not
appear to have addressed in its decision Plaintiffs’ other requests regarding the Zoning
Administrator’s inaction. As those issues were before the ZBA, they are within the scope of
Plaintiffs’ appeal to the Court in Docket No. 86-5-03 Vtec.
2.
     The 1999 permit issued by the Zoning Administrator is not a decision of the ZBA that could
be enforced under §4470(c). The permit can be enforced according to its terms, but only through
§§4444 and 4445. See, Town of Bennington v. Hanson-Walbridge Funeral Home, Inc., 139 Vt.
288 (1981).
