2013 VT 40


In re Wood NOV & Permit
Applications, Town of Hartford v. Wood (2012-146)
 
2013 VT 40
 
[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 40 

 

No. 2012-146

 

In re Wood NOV & Permit
  Applications


Supreme Court


 


 


 
Town of Hartford
 


On Appeal from
 
Superior Court,


     v.


Environmental Division
 


Marc and Susan Wood


January Term, 2013


 


 


 


 


Thomas
  S. Durkin, J.


 

Paul S. Gillies of Tarrant, Gillies, Merriman &
Richardson, LLP, Montpelier, for
  Appellants.
 
William F. Ellis of McNeil, Leddy & Sheahan, P.C., Burlington,
for Appellee.
 
 
PRESENT:   Reiber, C.J., Skoglund, Burgess and
Robinson, JJ., and Zonay, Supr. J.,
                    
Specially Assigned
 
 
¶ 1.            
ROBINSON, J.   Landowner Marc Wood appeals the most
recent decision of the Superior Court, Environmental Division in this more than
decade-long dispute between the Town of Hartford and landowner concerning,
primarily, his construction of a large concrete-slab retaining wall along his
and his wife’s property.  We affirm.
I.
¶ 2.            
In order to put the issues presented in this appeal in context, we
consider the lengthy history of this dispute.  As the environmental court
explained in its March 2012 decision below:
[The
parties] have engaged in multiple litigations, in multiple courts, over
multiple years, all with common themes: whether various plans for development
of two adjoining parcels of land along Vermont Route 14 should be approved,
whether the development that has occurred is in accordance with either a prior
zoning permit or the applicable zoning regulations, and whether Marc Wood’s
development of those parcels should be regarded as violating those zoning
regulations. 
 
¶ 3.            
The property in question contains two parcels.  One, referred to as
the “Diner Parcel,” includes a building that was previously operated as the
Hartford Diner.  The Diner Parcel, which is titled solely to Marc Wood,
has not been commercially operational in years.  The second parcel,
owned by Marc and Susan Wood, is referred to as the “Club Parcel.”  Within
that parcel is a building that was developed as a club facility and used as a
local grange lodge.  The parties dispute whether the use of the building
on the Club Parcel has continued to the extent and in a manner that would allow
it to be considered a preexisting nonconforming use.  The two
properties are dissected by a zoning district boundary line; part of each
parcel is within the Village Business Zoning District (VB District) and part
within the Village Residential One Zoning District (VR-1 District).
¶ 4.            
Sometime before 1999, in conjunction with the development of the Woods’
parcels, landowner proposed the construction of a retaining wall along the
parcels’ southern and western boundaries.  The retaining wall,
proposed to reach a height of thirty-five feet, was aimed at increasing the
developable portion of the lots, which sloped away from the adjacent highway at
a significant angle and thus contained a limited amount of level land that
could be effectively developed.  As first proposed, the wall was to
be constructed of stone, but the proposal was later amended to call for the use
of concrete slabs to be recovered from a nearby highway bridge reconstruction
project.  Landowner hired an engineer, John B. Stevens, to prepare
the design for the proposed wall.  The design prepared by engineer
Stevens included detailed specifications concerning, among other things, the
thickness of the slabs, the minimum width, the removal of fixtures or steel
from the slabs prior to placement, the placement and construction of transverse
joints, the level of the slabs, and the method of cutting the slabs.
¶ 5.            
On October 14, 1999, the Town approved landowner’s application for a
zoning permit to construct the retaining wall.  That permit, Permit
#99-1180, was not appealed and became final once the appeal period expired.  The
permit was “issued on the condition that before a Certificate of Occupancy is
issued the Engineer of Record, John Stevens, or his assigns, must certify that
the concrete slab walls were constructed in accordance with the approved
design.”  The permit further stated: “The applicants understand
that they must make the necessary arrangements during construction to insure
that the Engineer will have the necessary information to make this
determination.”
¶ 6.            
In early 2000, landowner began stockpiling the recycled concrete slab
sections on the lower portion of the subject property.  Concerned that the
slabs did not conform to the engineering specifications incorporated into
Permit #99-1180, the Town served the Woods with a notice of violation (NOV) and
filed an enforcement action with the environmental court.  The
enforcement complaint was consolidated with an appeal of the NOV and with a property
easement dispute between the Woods and the Town.  On September 21,
2001, the environmental court issued several orders concerning the consolidated
litigation.
¶ 7.            
In one of the decisions most relevant to this appeal, the court determined
that the landowner had failed to “meet the specifications for . . . the permit
as approved” with respect to thickness of the slabs, whether the ends of the
slabs had been hammered rather than sawed, and whether steel reinforcing bars
were protruding from the slabs.  The court acknowledged the
possibility that the specifications for the slabs could be amended and the
slabs used safely for the project, but cautioned that the Woods “must apply to
the permitting authority for approval of the amended certifications.”  Landowner
appealed the September 21, 2001 environmental court decision to this Court, and
a three-justice panel affirmed the decision in May 2002.  See Town of
Hartford v. Wood, No. 2001-473, 2002 WL 34423566 (Vt. May 29, 2002) (unpub.
mem.), http://www.vermontjudiciary.org/d-upeo/upeo.aspx. 
¶ 8.            
In April 2003, landowner filed an application to amend Permit #99-1180,
but the town zoning administrator declined to accept the application, stating
that the permit had expired and that, in any case, the application could not be
treated as a request to amend the previous permit because of the extent of the
proposed changes from the permitted design.  Landowner appealed,
and in May 2004 the environmental court ruled that 371 days still remained on
Permit #99-1180 and that the Town had to “consider the application to amend,
which may include a ruling on its completeness.”  The court further
ruled that the application would be governed by whatever regulations were in
effect at the time of the application.
¶ 9.            
Landowner promptly submitted to the Town a renewed application to amend
the permit, including, among other things, a redesigned retaining wall. 
That application included letters and a revised retaining wall plan by engineer
John Stevens.  In July 2004, the town zoning administrator rejected
the applications as incomplete and informed landowner that his applications
would have to include not only completed application forms, but also retaining
wall plans from an engineer, a site plan, and a narrative description of how
the new plans for the retaining wall differed from the design authorized by
Permit #99-1180.  Landowner appealed, asking the Zoning Board of
Adjustment (ZBA) to find his applications complete and ready for review by the
ZBA or the planning commission.  The ZBA upheld the zoning administrator’s
conclusion that the applications were incomplete, ruling that the amended
retaining wall plans had to be approved by the ZBA and the planning commission
and that the revised site plan had to be prepared by an engineer.
¶ 10.        
Landowner appealed to the environmental court, which in April 2006 ruled
that the Town’s regulations gave the Town discretionary authority to require
landowner to submit a site plan prepared by a professional engineer.  The
court stated:
[N]othing could
have confirmed the need for engineered site and retaining wall plans more than
this Court’s site visit, which demonstrated the enormity of [Mr. Wood’s]
project and the threat to public safety that [the] project presents if it were
to proceed without consultation and approval of a licensed engineer experienced
with constructing retaining walls with recycled concrete slabs.
 
The court also rejected
landowner’s challenge to the Town’s application submission policy, ruling that
everything required by the Town was authorized in the Town’s zoning
regulations.  Landowner’s appeal of that decision to this Court was
dismissed as untimely filed in July 2006.
¶ 11.        
Following the environmental court’s April 2006 decision, landowner filed
another application with the Town to amend Permit #99-1180.  In August
2007, on appeal from the Town’s rejection of the application as incomplete, the
environmental court noted that landowner had not contested the Town’s assertion
that his most recent application did not include a site plan completed by a
licensed engineer.  The court reaffirmed the finality of its “prior
determination that any amendment of the permit Mr. Wood previously received
must include a site plan completed by a Vermont licensed engineer.”  Thus,
the court declined landowner’s request to reconsider that prior determination,
stating that “Mr. Wood’s retaining wall is a significant structure” and “its
failure could cause significant harm and damages to him and others.”
¶ 12.        
In the meantime, even though he did not have a new or amended permit, in
2006 landowner began building the wall.
¶ 13.        
In a March 2008 decision, the environmental court once again dealt with
landowner’s request that the court reconsider a number of its prior decisions.
 The court noted that landowner’s requests “appear to represent a lack of
understanding of the basic concept of finality of court decisions.”
 Specifically, landowner asked the court to revisit its September 2001
decision ruling that his retaining wall did not comply with the conditions of
Permit #99-1180.  The court considered landowner’s request to be in the
nature of a motion for relief from judgment under Vermont Rule of Civil
Procedure 60(b) and denied it.  Landowner also sought reconsideration of
the court’s August 2007 decision, arguing that his most recent permit
application should be exempted from site plan approval requirements, and in
particular the requirement that he submit a site plan completed by a licensed
engineer.  Once again, the court rejected this argument, noting
that it had already decided the issue twice before.  The court
ruled that the doctrine of issue preclusion barred landowner from re-litigating
whether the Town had the authority to require him “to submit site plans
completed by a licensed engineer.”  The court also ruled that
Permit #99-1180 had finally expired on March 10, 2007.
¶ 14.        
Shortly after this decision, the parties filed competing motions for
contempt.  The Town contended that landowner had developed his
property without a permit and in violation of the court’s order.  For his
part, landowner argued that the Town had deliberately refused to consider his
multiple permit applications, in violation of the court’s September 2001 order.
 The Town sought injunctive relief, while landowner asked the court to
compel the Town to hold hearings on his most recent application.
¶ 15.        
In an April 2008 decision, the environmental court denied landowner’s
motion, explaining that its “May 19, 2004 Order did require the Town to
consider Mr. Wood’s amendment application, but the Court’s order also allowed
the Town’s municipal planning authorities to make an initial determination of
whether any amendment application Mr. Wood submitted was complete.”  The
court noted that “the issue of whether Mr. Wood’s development applications
required the assistance and approval of a licensed engineer has been decided,”
and that its review of the proceedings showed that “to date, Mr. Wood has not
yet submitted the appropriate development plans, such that his application
plans could be deemed complete.”  The court reiterated that
“[u]ntil Mr. Wood submits a complete application, with the appropriate parts of
the application prepared by a Vermont-licensed engineer, the Town was within
its authority to deem Mr. Wood’s plans incomplete.”
¶ 16.        
At the same time, the court granted the Town’s motion for contempt,
concluding that “Mr. Wood performed construction activities on the Hartford
Diner project site after the expiration of Permit #99-1180 and without any
other permitting authority,” in violation the April 2006 order that stayed
“construction activities not authorized by Permit #99-1180.”
¶ 17.        
Landowner sought reconsideration of the court’s decision, insisting that
the Town was not complying with the court’s earlier orders.  In denying
the motion, the court explained once again that its May 2004 order had
explicitly allowed the Town to consider the completeness of any application
filed by landowner, and that the Town’s refusal to address the merits of
landowner’s applications to date “was not contemptuous, because Mr. Wood had
failed to file a complete application.”
¶ 18.        
The court next revisited this dispute in June 2009, when it distilled
landowner’s forty-nine questions to “a straightforward and singular one: Were
[the Woods] entitled to a certificate of occupancy (“CO”) when Mr. Wood applied
for one on March 7, 2007?”  The court concluded that they were not because
it was “indisputable” that the project in question “had not been completed in
accordance with Permit #99-1180.”
¶ 19.        
In a July 2011 order, the environmental court denied landowner’s motion
that appeared to request relief under Rule 60(b)(6) from either or both of the
court’s earlier orders issued in September 2001 and June 2009.  The
court responded as follows:
The current docket
is just the latest chapter in an unusually long and tortured history of
litigation between [Mr. Wood] and the Town.  [Mr. Wood] now appears to
argue that the previous decisions described above are in opposition to each
other and that, thus, one of them must be reopened.  We find the Court’s
prior rulings to be clear and to not evidence the contradiction that [Mr. Wood]
suggests.
 
II.
 
¶ 20.        
The most recent litigation began when the Town served the Woods on March
19, 2010 with an NOV based on a failure to construct the retaining wall in
conformance with Permit #99-180.  The NOV advised that landowner
could cure the violation by verifying within seven days that landowner would
submit a complete application on or before May 24, 2010 to bring the property
into compliance with the town zoning regulations.  The application
would have to include: (1) a slope stabilization plan prepared by a
Vermont-licensed engineer; (2) certification from a licensed engineer of the
wall’s design, structural stability, and actual construction if landowner
intended to keep the existing retaining wall as currently constructed; and (3) a
site plan prepared by a Vermont-licensed engineer if a site-plan approval or
conditional-use approval would be necessary for his plans.
¶ 21.        
In response, landowner submitted separate applications to the town
zoning administrator concerning the Club Parcel and the Diner Parcel.  The
application concerning the Club Parcel sought a permit for the retaining wall;
the application concerning the Diner Parcel sought approval to construct a
single-family dwelling on the Diner Parcel.
¶ 22.        
In separate letters sent approximately two weeks apart, the zoning
administrator returned the applications as incomplete.  Regarding the Club
Parcel, the zoning administrator noted that because the existing retaining wall
was located on both properties, any application “must include the wall in its
entirety.”  The letter further stated that an application must
include, among other things, a slope stabilization plan prepared by a
Vermont-licensed engineer on the design, structural stability, and construction
of the existing retaining wall.  Regarding the Diner Parcel, the
zoning administrator noted that the proposal relies upon the retaining wall
that was not built in accordance with its permit.  The letter
stated that an application seeking a permit for the retaining wall must include
a design plan, slope stabilization plan, and certification from a
Vermont-licensed engineer.  Landowner appealed those decisions to
the ZBA.  In July 2010, the ZBA upheld the zoning administrator’s
determinations.
¶ 23.        
The Town then commenced an enforcement action in January 2011 based on
landowner’s failure to construct the retaining wall as designed and permitted
and his conducting other unpermitted development on the properties.  The
environmental court consolidated the enforcement action with landowner’s
appeals from the ZBA’s decisions upholding the incompleteness of his most
recent applications.  The court’s three-day evidentiary hearing included a
site visit.  The court rendered its decision on March 27, 2012.
¶ 24.        
With respect to the Town’s enforcement action, the court found that it
was “beyond dispute,” as established in at least four of its prior orders and
the evidence presented at trial, that landowner “constructed the retaining wall
on the Diner and Club Parcels in disregard of both the engineered design the
Woods submitted in support of their original application and the permit that
issued in reliance on their plans and representations.”  The court
found that following the September 2001 environmental court order, landowner
“chose to construct a retaining wall . . . in a manner not in
conformance with the Permit #99-1180 specifications and without first obtaining
an amended or new permit to authorize the wall as actually constructed.”  The
court concluded that the wall, as constructed by landowner, deviated in at
least eleven material ways from the wall designed by his engineer and
authorized by Permit #99-1180.  The court further found that “[t]hese
deviations from the engineered design create the risk that the wall as
constructed is less stable than it would be if it had been constructed in
accordance with Permit #99-1180.”  The court said it would be
“difficult . . . to overstate the gravity of [Mr. Wood]’s
actions,” noting that “[t]he failure of this wall, were it to occur, could
seriously injury or kill people in the path of falling debris.”
¶ 25.        
In so ruling, the court rejected landowner’s reliance upon a letter from
his engineer that purported to certify that the wall as built conformed to the
terms of the permit and would function as designed.  The court found that
landowner did not retain his engineer to inspect the wall during construction
and further failed to make the necessary arrangements during the construction
of the wall to ensure that his engineer would have the information necessary to
certify that it had been constructed in accordance with the approved design.
 Rather, landowner “directed his engineer to complete his certifications
concerning the retaining wall by relying only upon the engineer’s brief site
visit and [Mr. Wood’s] off-site representations.”  For these
reasons, the court found his “engineer’s testimony and written certifications
not credible and not relevant to the material factual issue: whether [Mr. Wood]
constructed the retaining wall in conformance with Permit #99-1180.”
¶ 26.        
 The court further rejected, for lack of a “factual foundation,”
landowner’s new assertion that he had actually built three retaining walls
rather than one, so that each wall should be evaluated separately.  In
so arguing, landowner sought to subject the different portions of the wall to
different zoning regulations because the wall crossed two zoning
districts.  
¶ 27.        
As for issues concerning development on the property not directly
associated with the retaining wall, the court rejected as not credible
landowner’s claim that his ongoing activities associated with the building on
the Club Parcel entitled him to preexisting nonconforming use status with
respect to that lot.  The court cited substantial evidence to
support the Town’s position that any preexisting nonconforming use had been
abandoned.
¶ 28.        
The trial court concluded that landowner had “committed serious zoning
violations . . . after repeated notices and demands from the Town that he cease
his non-compliant construction;” that he continued the construction of his
nonconforming retaining wall and building long after receiving the Town’s
various notices; and that he had “refused to cure the deficiencies” when confronted
with his noncompliance.  The court accordingly ordered landowner
“to either contract with a third party to remove the offending wall or remove
the wall himself.”  Further, the court required landowner to pay a
fine of $100 per day from the date of the March 2010 NOV, resulting in a total
fine of $51,300. 
¶ 29.        
With respect to landowner’s appeal of the ZBA’s conclusion that his
applications for a new permit for the wall and other development were incomplete,
the court acknowledged landowner’s frustration in not being able to get the
Town to address his repeated applications to develop the subject
property.  The court found, however, that landowner’s construction of a
dangerous unpermitted retaining wall “was the cause of the frustrations he
. . . faced when attempting to secure permits for future development
of his parcels.”  The court deemed reasonable the Town’s
requirements that landowner “include in any subsequent permit applications the
design and construction details for the as-built or to-be-modified retaining
wall, certified by an engineer as required under the [Town’s Zoning]
Regulations, before those applications could be considered complete.”  The
court found that, despite the Town’s reasonable requirements, landowner over
the years in his multiple applications had “not provided engineering details
indicating either the integrity of the wall as constructed or a plan for
modifying his wall.”  Accordingly, the court affirmed the Town’s
determination that landowner’s two most recent applications were incomplete,
insofar as they provided none of the required certifications and “no details of
the wall he actually constructed nor of the corrections or modifications he
intended to complete to bring his wall into compliance with the Regulations.”
III.
¶ 30.        
Landowner raises at least thirteen claims of error on appeal.  Most
of landowner’s arguments fall within one of the following general arguments:
(1) the retaining wall was built in conformity with the 1999 permit as
certified by landowner’s engineer; (2) a permit is not actually required to
develop the subject property because the Club Parcel has a grandfathered
preexisting nonconforming use and no permit is required for the retaining wall under
the applicable town zoning regulations; and (3) his most recent permit
applications were complete and should have been considered by the Town on their
merits.
¶ 31.        
The environmental court definitively rejected the first argument—that
the wall as built does, in fact, conform with the 1999 permit—in its 2001 and
2009 decisions.  Landowner conceded as much at oral argument.  He
cannot relitigate those previously resolved issues now.  Second, the
record supports the environmental court’s findings and conclusions that the
Club Parcel had no grandfathered preexisting nonconforming use and that there
is only one retaining wall at issue for which a permit is required. 
Third, the record supports the environmental court’s conclusion that landowner’s
most recent permit applications were incomplete—for the same reasons as his
prior permit applications were deemed incomplete.  The landowner’s
arguments on appeal echo the arguments rejected by the environmental court on
multiple occasions: he essentially contends that the Town cannot require the
professionally engineered plans for his proposed permit that it has requested,
and that he has, in any event, supplied sufficient engineering support for the
applications.  The arguments fail on appeal for the same reasons they
failed multiple times below.
¶ 32.        
We consider each of landowner’s thirteen specific claims of error in
turn.  Landowner first challenges the environmental court’s finding that
the Woods had abandoned any preexisting nonconforming use of the Club Parcel
for 180 days so that landowner was required to apply for and receive a new
zoning permit if he wished to resume a nonconforming use.  At trial, as a
partial defense to the Town’s enforcement action, landowner asserted that the
building on the Club Parcel had been continuously used as a private club,
thereby entitling the Woods, under the applicable zoning regulations, to
continue that preexisting nonconforming use notwithstanding his acknowledgment
that, otherwise, the regulations would not permit such a use in the VB
District.
¶ 33.        
Pursuant to Hartford Zoning Regulations, if a nonconforming use is
discontinued for more than 180 days, the use “may be resumed only if . . . the Zoning
Board finds that the resumed nonconforming use will not adversely affect the
surrounding area,” and conditional use and plan development approval is also
required.  Town of Hartford Zoning Regulations, § 260-54(C)(3)(2008),
http://ecode360.com/13455767 [hereinafter Zoning Regulations].  The
regulations provide that “[a] nonconforming use shall be considered
discontinued if substantial operation of the nonconforming use of the lot or
structures on the lot has not occurred for a continuous period of time.”  Id.
§ 260-54(C)(7).  Factors to be considered in determining if a
nonconforming use has been discontinued include whether necessary permits have
been renewed and whether there has been a decrease or termination in the use of
utilities, whether the structures on the lot have received normal maintenance,
and whether there has been a decrease in traffic to and from the lot.  Id.
¶ 34.        
The trial court found that use of the building as a club ceased in the
late 1990s; that use of the building had been abandoned on several separate
occasions for more than two years; that there is no heat or electricity in the
building, and the building’s prior connection to the Town wastewater and water
supply systems has been disconnected for years; that many windows have been
broken by vandals; that landowner neither requested nor received a certificate
of occupancy to use the building during the thirteen years he has owned it;
that a town official credibly described the building as abandoned; and that
landowner’s claim that he had continually used the building on the Club Parcel
was not credible.  If supported by the evidence, these findings are
sufficient to support the court’s conclusion that use of the building was
abandoned for more than 180 days.
¶ 35.        
We conclude that the court’s findings are not clearly erroneous, and are
amply supported by the record.  See Mullin v. Phelps, 162 Vt. 250,
260, 647 A.2d 714, 720 (1994) (stating that trial court’s findings are viewed
most favorably to prevailing party and will not be disturbed on appeal unless
there is no credible evidence to support them, even if they are contradicted by
substantial evidence).
¶ 36.        
The town zoning administrator testified that, as part of their
application resulting in Permit #99-1180, the Woods planned to relocate the
Club Parcel building to a different location on the parcel and use it as a
retail establishment.  The zoning administrator further testified
that during the ten years that she had been familiar with the site, she never
noticed any use of the building.  While visiting the site in early
2011, she found a fence blocking the entrance to the building, blacked out and
broken windows, and no indication of current or recent use of the property.
 The town fire marshal testified that a public building permit was
required to operate a private club but that there was no record of any such
permit being issued for that building, either by the Town or by the Vermont
Division of Fire Safety, which had conducted such inspections before 2004.  The
fire marshal further testified that he had never seen the building occupied in
the last 10 years, and that he drove by it two to three times a week.  The
utility superintendent for the Town’s department of public works testified that
there had been no water use in the building since 2001.  The Town
also submitted an exhibit of utility records into evidence indicating that
there had been no electricity use at the building during an eight-month period
between October 2003 and June 2004.
¶ 37.        
In response to this and other evidence of abandonment of the building as
a club, landowner testified that he closed down the club every January because
it cost too much to heat and that he brought water from home to flush the
toilet.  On appeal, landowner characterizes the Town’s evidence of
abandonment as mere “suspicions” rather than “hard evidence” contradicting his
testimony that the club has not been abandoned.  According to
landowner, the lack of heat, electricity, and water in the building does not
demonstrate that its use as a private club was abandoned.
¶ 38.        
On the basis of this record, the court had more than sufficient evidence
to conclude that the nonconforming use had been abandoned for more than six
months, notwithstanding landowner’s testimony to the contrary.  See Concra
Corp. v. Andrus, 141 Vt. 169, 173, 446 A.2d 363, 365 (1982) (“When the
evidence is conflicting the credibility of the witnesses, the weight of the
evidence, and its persuasive effect are questions for the trier of fact, and
its determination must stand if supported by credible evidence even though
there may be inconsistencies or substantial evidence to the contrary.”).
¶ 39.        
We find no merit to landowner’s further assertion that there can be no
abandonment with a valid permit.  The Woods never developed the building
as allowed under Permit #99-1180, and, in any event, that permit and any rights
the Woods had under it expired in March 2007.
¶ 40.        
Nor do we find any merit to landowner’s argument that an extension of
their preexisting nonconforming use was granted by operation of law because the
town administrator failed to act upon his request for an extension within
thirty days.  See 24 V.S.A. § 4448(d) (“If the administrative officer
fails to act with regard to a complete application for a permit within
30 days, whether by issuing a decision or by making a referral to the
appropriate municipal panel, a permit shall be deemed issued on the 31st day.”
(emphasis added)).  Landowner bases this argument on a September 4, 2008
letter in which he stated that he wanted to do work on the Club Parcel building
“associated with permit 99-1180” and asked the zoning administrator to
“[p]lease forward . . . the necessary applications and the associated fee
amount.”  This letter, unaccompanied by an application fee, was
plainly not a complete permit application triggering § 4448(d).  Even
if it could be considered a complete application, the letter was sent more than
six months after Permit #99-1180 expired and landowner did not seek the
required conditional use and site plan approval.
¶ 41.        
In his second and third arguments, landowner repeats his contention,
rejected by the environmental court, that no permit or engineer certification
is required for any of the walls under the applicable zoning regulations. 
In this latest round of proceedings, landowner argued for the first time before
the environmental court that there are actually three walls—one within the VB
District and two within the VR-1 District—and that no permits are required for
any of the walls.  On appeal, landowner expands on this argument, noting
that: (1) the applicable zoning regulations require a permit or engineer
certification for retaining walls located within the VR-1 District “only when
the distance between the wall and any boundary or easement line is less than
twice the height of the wall,” Zoning Regulations § 260-28(D); and (2)
although retaining walls higher than forty-two inches located within the VB
District normally require a permit and engineer certification, id., the
Town’s zoning regulations also provide that if at the time a zoning district
boundary is adopted it divides a lot, “the regulations for the less restricted
part of such lot shall extend 30 feet into the more restricted part, provided
the lot has frontage on a street in the less restricted district.”  Zoning
Regulations § 260-22(C).  According to landowner, no permit or
engineer certification is needed for any of the walls because the distance
between the two walls in the VR-1 District and the boundary or easement line is
less than twice the height of the walls, and “[t]he effect of this is to make
any restrictions on the Village Business District side of the Wood property a
non-issue, if one remains.”
¶ 42.        
The superior court rejected out of hand this attempt to circumvent the
permit requirement.  The court described landowner’s claim that he had
built three walls as “unfounded.”  The court noted that none of
landowner’s permit applications provided design details for multiple or
alternate walls, that “the actual wall as constructed is clearly a single
wall,” and that the Town’s enforcement action was premised upon its contention
that landowner had not constructed the retaining wall in conformance with
Permit #99-1180.  These findings are supported by the record. 
Indeed, landowner’s own engineer acknowledged at trial that, notwithstanding
landowner’s characterization of the wall as three walls, the wall “was designed
as one wall.”  None of the surveys, apart from the one submitted by
landowner at trial and discredited by the court, indicate separate walls. 
During the prior proceedings in which the court concluded on multiple occasions
that it had made a final determination that engineer certification was needed
for the wall, landowner never argued that there were in fact three walls.
¶ 43.        
Landowner cites as “proof” of the existence of three walls the use of
the word “walls” in Permit #99-1180 itself, occasionally in environmental court
decisions, and most particularly, in a September 1999 letter from an engineer
reviewing the wall design on behalf of the Town.  According to landowner,
the Town “has just now shifted to calling this a single wall.”
¶ 44.        
The opposite is true.  It is landowner who has only recently
asserted that there are three walls rather than one wall.  References to
the word “walls” in past decisions or documents does not demonstrate that there
are actually three walls but rather has to do with the fact that the one wall
is made up of individual concrete slab sections.  Permit #99-1180 states
that the engineer must certify that “the concrete slab walls” were constructed
as designed, but there is no indication in the application that more than one
wall was intended.  There are two September 1999 letters from the town
engineer.  The first one on September 24 indicates that the engineering
firm “ha[s] reviewed the two dry laid retaining wall section sheets.”  The
second letter written on September 28, upon which landowner apparently relies,
states that the firm has “briefly reviewed the two dry-laid concrete slab wall
sections,” and then follows up in a later paragraph by stating that its “review
is only of the concrete slab wall.”  In short, there is no basis to
disturb the environmental court’s finding that there is and always was only one
wall.
¶ 45.        
Moreover, the record amply supports the environmental court’s finding
that the distance from the wall to a boundary line and the height of the wall
are such that a permit is required, even in the VR-1 District, pursuant to
Zoning Regulations § 260-28(D).  Landowner’s own survey
situates that part of the wall landowner calls “Wall A” between five and
sixteen feet of the West Hill Road right of way and notes that Wall A has a
maximum height of thirty-two feet.  The record clearly supports the
conclusion that the distance from the wall to the West Hill Road right of way
is far less than twice the height of the wall.
¶ 46.        
Landowner’s fourth argument is that even if a permit and engineer
certification are required for the retaining wall, an independent review by a
town-appointed or approved engineer is not required.  The ZBA stated in
one of the orders upheld in the environmental court’s March 2012 decision that,
pursuant to § 260-51 of the Zoning Regulations, independent technical
review of the retaining wall before issuance of a new permit is “reasonable and
necessary given the wall was not built in accordance with its permit, the
height of the wall, its proximity to a residential lot and public road, and the
fact that the wall supports two structures.”  Landowner does not
contend that such a condition is unauthorized by the applicable zoning
regulations; rather, he appears to argue that the condition cannot or should
not be imposed now because Permit #99-1180 and a 2006 environmental court
decision did not require independent engineer certification.  
¶ 47.        
This argument has no merit.  Permit #99-1180 expired in 2007. 
For its part, the environmental court emphasized in both the March 2012
decision and earlier decisions the significance of safety concerns posed by the
retaining wall and thus the need for certification and site plan review by a
Vermont-licensed engineer.  Landowner has not demonstrated any bases for
us to overrule the decision to require independent engineer certification in
this instance.
¶ 48.        
Landowner’s fifth argument is that even if independent review by a
town-appointed or approved engineer is required, a town-appointed engineer has
already approved the retaining wall.  In making this argument, landowner
relies upon a September 28, 1999 letter from an engineer who reviewed the
original retaining wall design for the Town.  The letter states in
relevant part that after “briefly review[ing] the two dry-laid concrete slab
wall sections” and “based on previous calculations and our own analysis for the
previous dry-laid stone wall, we think this wall probably has a reasonable
Factor of Safety against failure.”  The letter also states,
however, that the engineer of record “should make certain that this is so” and
“should monitor the construction sufficiently close so that he is willing” to
“certify that the concrete slab walls were constructed in accordance with the
design.”  As the environmental court found, the engineer of record did not
monitor construction of the wall, and the wall was not constructed in
accordance with the design as approved by Permit #99-1180.  Landowner’s
suggestion that the town-appointed engineer’s input regarding the design
of the wall satisfies the independent review called for by the ZBA misses the
fact that the issue here is not whether the design of the wall as permitted is
safe or compliant.  The issue in this case is whether the wall landowner
actually constructed complies with the design requirements of the permit—a
determination no town-appointed engineer could possibly have made in 1999,
before construction on the wall even began.
¶ 49.        
Landowner’s sixth argument is that the town zoning provision allowing
for the discretionary assessment of the cost of an independent technical review
of permit applications upon a finding that such review would assist in
understanding or evaluating the information submitted with the applications
fails to provide adequate standards as to what is expected from a
landowner.  See In re Appeal of JAM Golf, LLC, 2008 VT 110,
¶ 13, 185 Vt. 201, 969 A.2d 47 (declining to enforce standardless
ordinance requiring landowner to protect important wildlife habitat); see also
24 V.S.A. § 4440(d) (allowing municipalities to “establish procedures and
standards for requiring an applicant to pay for reasonable costs of an
independent technical review of the application”).  This claim of error is
not ripe in that there has not been any assessment of costs upon landowner
pursuant to the allegedly offensive provision.  See In re 232511 Invs.,
Ltd., 2006 VT 27, ¶ 19, 179 Vt. 409, 898 A.2d 109 (“We must have an
actual case or controversy before us to render a decision.”).
¶ 50.        
Landowner’s seventh argument weaves together various arguments noted and
rejected above: the Town’s NOV was inappropriate because he was not required to
get a permit for the wall; in any event he provided evidence of an engineer’s
approval of the design and construction of the wall as built; and the Town had
not yet acted on his pending application with respect to a private dwelling on
the Diner Lot.  The Town did act on landowner’s applications by rejecting
them as incomplete; the trial court was well within its discretion in rejecting
the credibility of the landowner’s engineer’s certification, and, even with a
certification, the landowner’s application did not satisfy all of the necessary
requirements; and the wall was subject to the Town’s permitting requirements on
account of its height and proximity to a boundary.
¶ 51.        
Landowner’s eighth argument returns to the question of what design was
actually lawfully approved in Permit #99-1180.  This argument has been
addressed previously.  The environmental court’s 2001 order concluded that
the design approved by the permit requires a dry-laid sloping concrete slab
wall, with slabs at least ten inches thick, sawed, not hammered, and having
maintained their integrity during removal, with steel removed prior to slab
placement if another slab will bear on it.  The permit described by the
environmental court in that order is the unappealed permit that remained in
effect until it expired in 2007.  Landowner cannot now, more than a decade
later, argue that, in fact, the design approved was something different from
that identified and described by the environmental court in 2001, and repeated
in multiple cases thereafter.
¶ 52.        
In his ninth argument, landowner asserts that the environmental court
lacked jurisdiction to find that he constructed the wall in part on town
property.  He cites two environmental court decisions to support this
argument.  Landowner’s tenth argument appears to be related. 
Landowner states that the Town wants this Court to find that he trespassed on
its property, and then suggests that we must reject such a finding because in Town
of Hartford v. Wood, 171 Vt. 668, 769 A.2d 1303 (2001) (unpub. table
decision), we ruled that a certain survey was the true and accurate survey of
the property.  Neither argument provides a basis for us to disturb the
environmental court’s decision.  The court did not adjudicate the parties’
property rights but rather stated only that one of the many ways that the
retaining wall, as built, differed from its design was that it appeared to be
built in part on adjoining land owned by the Town and others.  Landowner’s
citation is to an appeal listed in a table of memoranda decisions at the end of
volume 171 of the Vermont Reports.  This Court made no ruling as to the
accuracy of any survey in that appeal, which was dismissed as untimely filed on
January 3, 2001.  Moreover, the Town is not seeking in the current appeal
a ruling from this Court that landowner trespassed on its property.
¶ 53.        
In his eleventh and twelfth arguments, landowner contends that he did
not willfully violate the Town’s zoning laws, and that the fine imposed by the
environmental court was unwarranted and punitive.  He states that he
merely exercised his right to appeal the Town’s decisions, that he honestly
believed that the Town had approved a permit for him to build the wall, and
that the Town initiated its enforcement action against him merely because he
had the audacity to refuse to do what it wanted him to do. 
¶ 54.        
We find no merit to these arguments.  Neither the environmental
court’s multiple decisions over the years nor the record in this case supports
landowner’s claims that the Town engaged in a personal vendetta against
him.  Rather, the record, including the court’s findings, supports the
court’s conclusions that the retaining wall was not constructed in accordance
with its design specifications or Permit #99-1180, that the Town reasonably
required later permit applications to include design and construction details
certified by an engineer to assure the safety of the structure, and that
landowner failed to do that.
¶ 55.        
The environmental court explained that a $100 per day fine over the
period of the violation was warranted because of landowner’s “persistent
avoidance of his obligations to abide by Permit #99-1180 and the applicable
Regulations,” which caused the Town considerable expense in enforcing its
regulations.  Landowner has failed to demonstrate an abuse of discretion
as to either the fine imposed or the injunctive relief granted by the
court.  See Town of Hinesburg v. Dunkling, 167 Vt. 514, 527-28, 711
A.2d 1163, 1171 (1998) (concluding that imposing fines “to reimburse towns for
the cost of enforcement is contemplated by the statute and is rationally
related to the damages suffered from landowner’s violation of Town’s bylaw”); Town
of Sherburne v. Carpenter, 155 Vt. 126, 129, 582 A.2d 145, 148 (1990)
(stating that where statute authorizes injunctive relief, municipality need not
show irreparable harm but rather only violation of ordinance to obtain such
relief).
¶ 56.        
In his final specific claim of error, landowner argues that the
environmental court decision being appealed is inconsistent with prior
decisions issued by that court in 2001, 2008, and 2009.  Rather than
explicitly state how that is so, landowner lists a hodgepodge of claims, mostly
reasserting earlier claims of error that we have already rejected or
challenging findings that are not critical to the environmental court’s ultimate
decision or the instant appeal.  Upon careful review of the record, we see
no material inconsistencies in the environmental court’s decisions over the
years regarding the parties’ ongoing dispute, and we find no basis to disturb
the court’s March 27, 2012 decision granting the Town injunctive and monetary
relief.
¶ 57.        
Although not expressly itemized as a claim of error, a recurrent theme
throughout landowner’s brief involves the “certification” by engineer John
Stevens that the wall as built complied with the permit or, in the alternative,
satisfies the requirement for expert certification of the wall as built. 
Although he purported to certify that the wall as constructed complied with the
1999 permit, the engineer testified at the hearing that at the time he issued
that certification he had “no idea” what was approved in Permit #99-1180, and
that he included that language notwithstanding his lack of direct knowledge
because landowner requested it.  The engineer testified that he relied on
Mr. Wood’s representations in determining the safety of the wall as-built. 
In particular, his own opinions relied exclusively on landowner’s
representations to him concerning the quality of the subgrade preparation, the
composition of the backfill behind the wall, the composition of the foundation
key to the wall, the installation of geotextile fabric over the back face of
the wall, the selection of appropriate slabs whose structural integrity was not
compromised, and landowner’s qualifications to direct an undertaking of this
magnitude.  In fact, the engineer testified that the red lines on
the survey denoting the location of the wall and the zoning district boundary
breaks, which bore a typed certification by the expert, were actually inscribed
by landowner; the engineer did not make any measurements of the wall himself in
connection with preparing his certification but instead relied on what
landowner told him.
¶ 58.        
Moreover, the engineer’s testimony at the hearing below concerning his
observation of the wall during the construction process differed significantly
from his deposition testimony.  Even by his trial testimony, his
observations of the wall while under construction were minimal—he did not
observe any actual construction taking place on the wall, and he did not
purport to have any basis for offering an opinion as to whether landowner
followed good construction practices.  To the extent that landowner
relies in any way, shape, or form, for any purpose, on the purported
certification of this engineer of the safety or compliance of the wall as
built, the environmental court was well within its discretion in rejecting
landowner’s claims.
Affirmed.

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Associate
  Justice

 

