                                     STATE OF VERMONT

                                 ENVIRONMENTAL COURT

               Village of Ludlow, Plaintiff,
                                                   }
                                                   }
               v
                                                   } Docket No. 213-11-98 Vtec
                                                   }
               Kenneth Tofferi and Totem
                                                   }
               Pole Ski Shop, Inc. Defendants.

                      Decision and Order on Penalty and Remaining Relief

Plaintiff Village is represented by J. Christopher Callahan, Esq.; Defendants are represented by
Matthew T. Birmingham, III, Esq.; Intervenor George Dunnett represents himself. Prior related
cases (Docket Nos. 132-8-96 and 133-8-96 Vtec) were decided by the Supreme Court in its
Docket No. 1998-314 on May 4, 2001; the Superior Court case establishing the boundary
between the Dunnett and Tofferi properties had also been concluded by the Supreme Court.

In its decision denying the variance for the new building in Docket No. 132-8-96, this Court had
concluded that, considering the new building as an addition to an existing non-conforming
structure, the addition was located partially within the 30 foot setback to West Hill Road and
partially within the 20-foot west side setback to Intervenor=s property, and could not be built
unless it qualified for a variance. Section 370(5) of the Zoning Regulations prohibits
nonconforming structures from being enlarged unless the enlarged portion conforms to the
building requirements of the Zoning Regulations. After examining each of the five criteria that
must be met for the building to qualify for a variance, the Court denied the variance because
none of the five criteria was met.1

This Court=s December 1999 decision decided the above-captioned enforcement action in favor
of the Village, and granted injunctive relief for the removal of the building, to take effect after
the Supreme Court would have resolved Defendants= appeal of the variance decision.

That decision found that construction of the new building had begun before the hearing date of
July 23, 1997, when the variance decision was already on appeal to this Court, and continued
after this Court= s warning to Defendants that date that any construction would proceed at their
own risk and that this Court would order the building removed if the variance were denied. The
December 1999 decision concluded that the equities balanced in favor of removal of the building
in this case. Under the terms of the December 1999 decision, the new building was to have been
removed within 45 days after the Supreme Court= s May 4, 2001 decision, or by June 18, 2001.

This Court= s December 1999 decision also recognized that the calculation of an appropriate
penalty should also await the Supreme Court= s ruling on the variance decision, so that
Defendant= s cost of compliance and the Village= s costs of obtaining enforcement could be taken
into consideration. Town of Hinesburg v. Dunkling, 167 Vt. 514 (1998); Town of Sherburne v.
Carpenter, 155 Vt. 126 (1990). Accordingly, after the Supreme Court= s ruling, this Court
accepted memoranda from the parties regarding the calculation of the penalty and the return of
remainder of a bond that had been posted. Those memoranda were filed in mid-July of 2001,
with supporting affidavits, which disclosed that the building had not been removed by the June
18, 2001 deadline. On July 30, 2001, the Village moved for contempt and seeking direct
authority to remove the building under V.R.C.P. 70, with a supporting affidavit that the building
had not been removed as of July 17, 2001. A letter filed by Intervenor in August suggested that
the building was in the process of being removed, but that there might be some disagreement
among the parties as to the extent of the required removal. No further filings were received by
the Court.

The length of the violation was more almost exactly four years, from mid-July of 1997 to some
time after mid-July of 2001, although no party has supplied the final date of removal of the
building, if it has occurred. The enforcement action was filed on November 20, 1998. The
Village= s costs of compliance have been presented in affidavit form as the Village= s attorney= s
fees. Because of the pendency of the variance and conditional use permit appeals at the Supreme
Court, we will only consider attorney= s fees related to this enforcement action and not to those
appeals. After sorting the bills into monthly sequence for each account provided, after reading
each bill, after eliminating balances carried forward that appear on more than one bill, and after
removing a total of $750 for the December 1999 - April 2001 period pertaining to the Supreme
Court proceedings and pertaining to a press conference, we hereby find that the Village= s
attorney= s fees attributable to this enforcement action total $2,286.70 (rounded to $2,287) for the
period from August of 1998 through March of 1999; plus $3,060 for the period from December
of 1999 through April of 2001; plus $670 for the period from May 2001 through July 23, 2001;
for a total of $6,017.

The amount of Defendants= bond still on deposit, with interest accumulated to date, totals
approximately $16,700. Defendants estimated that the removal of the building will cost
approximately $50,000, although without any support for that estimate in the form of an affidavit
or other evidence. It is also unclear to the Court whether that figure accounts for any salvage
value of the materials of the removed building, such as display windows. However, by
proceeding with construction while the variance was on appeal, and after being warned by the
Court, Defendants undertook the risk that they might have to also bear the cost of removing that
construction at a later date. Therefore, the cost of removal of the building should not be deducted
from the penalty in the circumstances of this case.

Taking these factors into consideration, we impose a penalty as follows, noting that the penalty is
required to be remedial rather than punitive in nature. Town of Hinesburg v. Dunkling, 167 Vt.
514 (1998). For the period from July 23, 1997, when Defendants were clearly warned of the risk
of proceeding with construction of the building while the variance was on appeal, through June
18, 2001, when removal of the building should have been completed, a period of 1,425 days, we
impose a penalty of $5 per day, for a total of $7,125. This relatively nominal daily amount covers
the Village= s costs of enforcement, yet recognizes that Defendants were vigorously pursuing
their legal theory that the variance should be granted, that the enforcement action and the back
boundary were also in litigation, and that Defendants were operating under this Court= s orders
preventing use of the portions of the new construction at issue in the variance decision. For the
29-day period from June 19, 2001 through July 17, 2001, during which the building had not been
removed even though this Court= s December 1999 order clearly required removal by June 18,
2001, we impose an additional penalty of the maximum2 of $50 per day as allowed under the
Village of Ludlow Zoning Regulations, for an additional penalty of $1,450.

The fund on deposit in lieu of a bond is hereby released to be paid as follows: to the benefit of
the Village in the amount of the total penalty of $8,575, and the balance of the fund to the benefit
of Defendants, who are not restricted in any way in its use (that is, they may apply it to the costs
of removal or to any other purpose). The fund shall be closed after the payments have been
made.

In the event that the building was not removed as required; the Village= s Motion for an order
under V.R.C.P. 70 is hereby GRANTED to allow the Village to make arrangements for the
removal, if it is still necessary. On or before February 1, 2002, the Village shall inform the Court
whether such an order is still necessary and, if so, shall provide the Court with a proposed order
by that date.

This decision and order concludes all remaining issues in the above-captioned case.

Dated at Barre, Vermont, this 18th day of January, 2002.



___________________
Merideth Wright
Environmental Judge



                                            Footnotes
1.
      In that decision, the Court noted that from Defendants’ point of view the proposal to build
the new building and to tear down the old gas station building could have been a very good
design to address the problem of access and parking on this small corner site and to improve its
commercial potential, at least without regard to the commercial potential of Intervenor’s
neighboring business. However, the Court cautioned the Village that it could not use the variance
procedure to compensate for deficiencies in the existing zoning regulations, and noted that a
municipality which wishes to encourage new commercial construction and development within
its central commercial area, to minimize problems of sprawl, must provide for such development
in its zoning regulations, and has available to it such techniques as reduced setbacks, more
intense lot coverage, or reduced parking, whether for parcels along certain streets or within some
portion of the central commercial area, or for existing structures no matter what their changed
use, or for corner lots. The Vermont Supreme Court reiterated this caution in its May 4, 2001
decision upholding the denial of the variance.
2.
    The statutory maximum has been raised to $100/ per day, but a municipality must amend its
zoning regulations to take advantage of that maximum. Ludlow does not appear to have done so.
