                                STATE OF VERMONT
                              ENVIRONMENTAL COURT

Town of Georgia,                         {
     Plaintiff                           {
                                         {
      v.                                 {       Docket No. 105-6-10 Vtec
                                         {
Ronald King and Laurie King,             {
     Defendants                          {


           Decision and Order on Motion for Partial Summary Judgment
      The Town of Georgia (“Town”) has brought an enforcement action against
Ronald King and Laurie King (“Defendants”) for allegedly violating the Town of Georgia
Zoning Regulations (“Regulations”) by developing a second dwelling on their property
without a zoning permit. The Town has moved for partial summary judgment, asking
the Court to find that the terms of the violation discussed in the September 23, 2009
Notice of Violation (“NOV”) that the Town of Georgia Zoning Administrator (“ZA”)
issued to Defendants are final and cannot be challenged in this proceeding.
Defendant Ronald King has submitted a memorandum in opposition to the Town’s
motion, and the Town has replied, but Defendant Laurie King has not filed a response.
      In this proceeding, the Town is represented by Amanda S. Lafferty, Esq. with
John H. Klesch and David W. Rugh serving as co-counsel. Defendant Ronald King is
represented by Daniel P. O’Rourke, Esq., and Defendant Laurie King is self-
represented.

                                   Factual Background
      For the sole purpose of putting the pending motion in context, we recite the
following facts which we understand to be undisputed unless otherwise noted:
1.    Defendants own a 10.03 acre lot located at 857 Sodom Road in the
Agricultural/Rural Residential Zoning District (or, AR-1 District) of the Town of
Georgia, Vermont.
2.    In August 2007, Defendants sought approval from the ZA to place a mobile
trailer on their property. At that time, Defendants’ property was already developed
with one single-family dwelling.




                                             1
3.      The ZA informed Defendants that, in order to add the new dwelling to their
property, they would need to obtain a subdivision permit from the Town to create a
separate lot for their trailer.
4.      At some point following this conversation, Defendants placed a mobile trailer on
their property and Defendant Ronald King’s mother began living in it.1 At that time,
Defendants had not completed the process of receiving a zoning permit for the
development.
5.      On September 23, 2009, the ZA issued a Notice of Violation (“NOV”) to
Defendants based on the existence of the trailer on their property. Included in the
NOV is a statement that Defendants violated the Regulations by commencing land
development without a subdivision permit or a building permit.                           The NOV also
indicates that the “cure for this violation is to remove the second residential dwelling
unit,” and provides an explanation of Defendants’ appeal rights. (See Mot. for Partial
Summ. J., Exhibit A, filed Mar. 25, 2011.)
6.      The parties dispute when Defendant Ronald King became aware that a NOV had
been issued to him. The Town alleges that it mailed the NOV to Defendants by both
certified mail and first class mail, and that Defendants received the certified mailing
on October 9, 2009.2 Defendant Ronald King claims to have had no notice of the NOV
until sometime in October, 2009.3
7.      Defendants did not appeal the issuance of the NOV.
8.      On June 20, 2010, the Town instituted the present enforcement action against
Defendants based on the violation alleged in the NOV.
9.      Subsequent to the Town’s issuance of the NOV, Defendants applied for
permission to use the mobile trailer now on their property as an accessory dwelling.
Defendants thereafter received a certificate of occupancy for the trailer.

                                              Discussion
        Pending before the Court is a motion for partial summary judgment filed by the
Town requesting that the Court determine that Defendants cannot now challenge the

1 While Defendant Ronald King admits that his mother moved into the trailer after he received a state
wastewater permit for a septic system for the trailer, he does not indicate the date of this event.
2 The Town has submitted a return receipt which includes Defendant Laurie King’s signature and a delivery

date of October 9, 2009.
3 While Defendant Ronald King makes this assertion in his general narrative of the actions he has taken in

regards to the development on his property, he does not incorporate this assertion into any of the arguments
he makes in opposition to the Town’s motion for partial summary judgment.

                                                     2
zoning violation discussed in the September 23, 2009 NOV that the ZA issued to them.
The asserted zoning violation consists of the development by Defendants, without a
zoning permit, of a second dwelling on their property.
      The Town argues that Defendants did not appeal the NOV and that, therefore, it
is final and binding.   Defendant Laurie King does not oppose the Town’s motion.
Defendant Ronald King does not refute that he failed to appeal the NOV. However, he
argues that he is not bound by it for three principal reasons: 1) the Town’s NOV did
not comply with the requirements for a notice of violation found in 24 V.S.A. § 4451(a);
2) it is a disputed fact whether he violated the Regulations; and 3) the Town
incorrectly advised him that he should seek a subdivision permit and not an accessory
dwelling permit and should be estopped from enforcing its Regulations.

I.    Summary judgment standard
      As we address the pending motion, we note that summary judgment is only
appropriate where “the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, . . . show that there is no
genuine issue as to any material fact and that any party is entitled to judgment as a
matter of law.” V.R.C.P. 56(c)(3); see V.R.E.C.P. 3. In our examination of the facts, we
give the non-moving party (here, Defendants) the benefit of all reasonable doubts and
inferences, and accept as true all assertions made in opposition “so long as they are
supported by affidavits or other evidentiary material.” Robertson v. Mylan Labs., Inc.,
2004 VT 15, ¶ 15, 176 Vt. 356 (citations omitted).

II.   Statutory requirements for a notice of violation
      Section 4451(a) of Chapter 117 of the Vermont Statutes Annotated requires that
a municipality give an individual or entity that the municipality believes is in violation
of its zoning ordinance, a notice of the violation and time to “cure” it before the
municipality institutes an enforcement action. 24 V.S.A. § 4451(a). The notice should
be sent by certified mail and must indicate both that there is a violation and that the
“alleged offender” has the opportunity to cure the violation. Id.
      The Town has submitted a copy of its September 23, 2009 NOV with its motion
for summary judgment and asserts that this NOV is sufficient to trigger the finality
provisions discussed in more detail below. The Town’s NOV includes a recitation of
the sections of the Regulations that the Town alleges Defendants violated, a
description of Defendants’ actions that violated these Regulations, a statement that

                                            3
Defendants have time to cure the violation, a statement that such a cure would be “to
remove the second residential dwelling unit,” and a description of Defendants’ right to
appeal in regard to the NOV. (See Mot. for Partial Summ. J., Exhibit A, filed Mar. 25,
2011.)
         Defendant Ronald King argues that the Town’s NOV is deficient because the
cure the Town describes is removal of the trailer. He asserts that the Town should
have indicated that he could also cure the violation by pursuing a subdivision or
accessory dwelling permit, and that this deficiency raises a genuine issue of material
fact that prevents summary judgment in the Town’s favor.
         Mr. King is misinformed about what constitutes the “cure” of a violation.    A
party who submits a permit application for a development that was originally
completed without a permit, but for which a permit was required, does not
retroactively “cure” the violation through that application. Even if the party were to
eventually gain approval for the necessary zoning permit or permits, he or she would
still have violated the applicable zoning ordinance from the time the non-permitted
development began to the time he or she received the necessary permits.
Consequently, we cannot agree with Defendant Ronald King that he has raised a
triable issue of fact.

III.     Finality of the NOV
         Individuals or entities who qualify as interested persons with regard to the
decisions of municipal administrative officers, such as the recipients of a notice of
violation, have a statutorily provided right to appeal that decision.    See 24 V.S.A.
§ 4465(a).    Such an appeal must be initiated by filing a notice of appeal with the
appropriate municipal panel within 15 days of the decision to be appealed. Id. If
persons with the right to appeal an officer’s decision fail to do so, they and all other
“interested persons affected shall be bound by that decision.” Id. § 4472(d). In other
words, an appeal of an officer’s decision to the appropriate municipal panel within 15
days of that decision is the “exclusive statutory remedy for persons aggrieved by local
zoning decisions.” Town of Charlotte v. Richmond, 158 Vt. 354, 356 (1992); see 24
V.S.A. § 4472(a).
         Here, the Town argues that the terms of the NOV, including the violation
described therein, are binding on Defendants because they did not appeal that
decision. Defendants do not contest the Town’s assertion that they failed to appeal

                                           4
the September 23, 2009 NOV the Town issued to them. Instead, Defendant Ronald
King argues that there is a “genuine question” as to whether he violated the
Regulations which creates a disputed fact barring summary judgment on the question
of whether the violation exists. (See Def. Ronald King’s Opp’n to Pl.’s Mot. for Partial
Summ. J. 6, filed June 6, 2011.)
          We do not accept Mr. King’s interpretation of the applicable law. 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 Town.
Because Defendants did not appeal the Town’s September 23, 2009 NOV issued to
them, under the provisions of § 4472, that decision is now final and cannot be
contested.     Thus, we do not have jurisdiction to consider the challenge Mr. King
raises.
          We conclude that Defendant Ronald King has failed to raise a disputed material
fact regarding the finality of the NOV, and its terms are binding on Defendants.

IV.       Equitable estoppel
          Defendant Ronald King’s final argument is that partial summary judgment for
the Town is not warranted because the doctrine of equitable estoppel should bar the
Town from pursuing this enforcement action against Defendants.          Specifically, Mr.
King argues that the Town incorrectly advised him that he should seek a subdivision
permit rather than an accessory dwelling permit, and that he relied on that advice to
his financial determent during his pursuit of a subdivision permit.
          We would normally begin our analysis of Mr. King’s equitable estoppel claim by
reviewing the legal standard for that doctrine.      However, we need not do so here
because Mr. King’s argument does not, in fact, support his legal challenge based upon
equitable estoppel.     The operative action here is not the advice the ZA gave to Mr.
King, nor its decision to prosecute Defendants, but rather their decision to place a
trailer on their property without first obtaining some sort of zoning approval. Even if
the Town’s advice to Defendants can be classified as incomplete or misleading, it falls
far short of the transgressions that would give rise to an equitable estoppel claim. Mr.
King does not allege that the ZA advised Defendants to place a trailer on their property
without first obtaining some sort of zoning approval; Mr. King chose to not follow
through on what the ZA advised him to do. Rather, he chose to improve his property



                                             5
without any zoning approval. Thus, his argument does not support the application of
equitable estoppel to this enforcement action.
      We    conclude   that   Defendant    Ronald    King’s   argument   concerning   the
application of equitable estoppel neither prevents us from granting partial summary
judgment in favor of the Town here (on the question of whether the terms of the NOV
are binding on Defendants) nor bars this enforcement action in its entirety.

                                        Conclusion
      For the reasons detailed above, we GRANT the Town’s motion for partial
summary judgment. That is, we find that the terms of the zoning violation presented
in the September 23, 2009 NOV the ZA issued to Defendants are final and binding on
Defendants.   The issues that remain in this action—the appropriate remedies and
fines, if any—will be determined at the upcoming merits hearing which is scheduled
for August 30, 2011 at the Franklin County Courthouse in St. Albans, VT. Parties are
directed to prepare for that hearing.


      Done at Rutland, Vermont this 25th day of August, 2011.




                                                 Thomas S. Durkin
                                                 Environmental Judge




                                            6
