                                      State of Vermont
                           Superior Court—Environmental Division

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                  ENTRY REGARDING MOTION
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Town of Fairfax vs. Leon Beliveau                                     Docket No. 274-11-08 Vtec
(Municipal Enforcement)

Title: Motion for Contempt (Filing No. 28)
Filed: December 19, 2011
Filed By: Plaintiff Town of Fairfax
Response filed on January 13, 2012 by Defendant Leon Beliveau
Reply filed on January 24, 2012 by Plaintiff Town of Fairfax
Supplemental Memorandum Filed on April 3, 2012 by Plaintiff Town of Fairfax
Response filed on May 25, 2012 by Defendant Leon Beliveau

    X    Granted                         ___ Denied                    ___ Other

       This matter is an enforcement action brought by the Town of Fairfax (the Town) against
Defendant Leon Beliveau (Defendant). In a September 2, 2011 Decision in this matter, this
Court determined that Defendant violated the Town of Fairfax Zoning Bylaws (the Bylaws) by
changing the use of his owner-occupied property at 1166 Main Street from a single-family
dwelling to a rooming and boarding house without first obtaining the necessary approvals.
After the parties filed further memoranda on the extent and nature of injunctive relief, this
Court issued an October 24, 2011 Injunctive Order requiring the following:

        Defendant Leon Beliveau shall immediately cease the use of the property at 1166
        Main Street in the Town of Fairfax, Vermont, as a rooming and boarding house,
        as that term is defined in the Zoning Bylaws, and shall return the use of the
        property to that of a single-family dwelling, as that term is defined in the Zoning
        Bylaws, until or unless he obtains a zoning permit for the change of use from that
        of a single-family dwelling.

       The parties then conducted supplemental discovery and filed memoranda regarding the
Town’s request for an enforcement penalty and permanent injunction. On December 19, 2011,
the Town filed a Motion for Contempt alleging that Defendant was not complying with the
Court’s October 24, 2011 Injunctive Order.

       This Court then issued a March 30, 2012 Decision and Judgment Order imposing a
penalty and repeating the above injunctive relief, this time as a permanent injunction. Within
the March 30, 2012 Decision, this Court recognized the Town’s pending motion for contempt.
To avoid confusion, however, the motion was not addressed within that decision. This Entry
Order addresses the Town’s motion for contempt.
Town of Fairfax vs. Beliveau, No. 274-11-08 Vtec (EO on Mot. for Contempt) (07-24-12)    Pg. 2 of 5.


        Defendant appealed the Environmental Division’s March 30, 2012 Judgment Order to
the Vermont Supreme Court on April 13, 2012. At the request of the Environmental Division,
the Supreme Court placed the appeal on waiting status and remanded jurisdiction to the
Environmental Division for consideration of the motion for contempt. A status conference was
held with the parties on May 15, 2012 to establish a process to resolve the pending motion.
Parties then filed additional memoranda, and a show cause hearing was held on July 18, 2012.

        Section 122 of Title 12 of the Vermont Statutes Annotated provides for the initiation of
contempt proceedings against any party who violates a court order, regardless of whether the
case is currently active. See Vt. Women’s Health Ctr. v. Operation Rescue, 159 Vt. 141, 144–145
(1992). Compensatory fines and coercive sanctions may be imposed on a civil contemnor;
however, these must be purgeable, i.e., avoidable by adhering to the court’s order. See Mann
v. Levin, 2004 VT 100, ¶ 32, 177 Vt. 261 (citing Vt. Women’s Health Ctr., 159 Vt. at 151); State v.
Pownal Tanning Co., 142 Vt. 601, 603–604 (1983). Further, imprisonment can be imposed as a
means to compel the party to do some act ordered by the court. See 12 V.S.A. § 123; In re Sage,
115 Vt. 516, 517 (1949). This Court is prepared to impose such fines or sanctions where a
respondent ignores a court order.

        The injunctive order at issue in this motion for contempt requires that Defendant cease
the use of the property as a rooming and boarding house and return the use of the property to
that of a single-family dwelling, unless Defendant obtains a zoning permit for a change of use.
Thus, absent any permitting or approvals from the Town, to comply with this order, Defendant
must do the following:
        1) Cease use as a rooming and boarding house; and
        2) Return use to that of a single-family dwelling.

Use as a Rooming and Boarding House:

        The use category of rooming and boarding house is defined, in pertinent part, in the
Bylaws as an “owner occupied residence.” The parties’ filings, and the testimony and
evidence the Court received during the July 18, 2012 show cause hearing, indicate that the
parties agree both that Defendant moved out of 1166 Main Street on October 25, 2011 and that
Defendant no longer considers or uses this property as his residence. Based on these facts, the
Court concludes that Defendant is in technical compliance with the first part of the injunctive
order, as his use of the property no longer matches the definition of a rooming and boarding
house.

        We note that Defendant’s method of complying with this aspect of the injunction, while
legally sufficient, goes against the spirit and intent of the injunctive order. The Town in this
matter is interested in Defendant either restoring use of the subject property to its previous use
as a traditional single-family home or applying for and obtaining the necessary approval for a
change of use. Defendant’s moving out, without more, does not solve the Town’s concerns.
Nonetheless, we conclude that Defendant has legally complied with the first element of the
injunction.
Town of Fairfax vs. Beliveau, No. 274-11-08 Vtec (EO on Mot. for Contempt) (07-24-12)       Pg. 3 of 5.


Return Use to that of a Single-Family Dwelling:

       The injunctive order also requires that Defendant return the use of the property to that
of a single-family dwelling, as that term is defined in the Bylaws. During the show cause
hearing, Defendant argued that the injunctive order is unclear because it references a
“single-family dwelling”—a use which is not clearly defined in the Bylaws. Defendant further
argued that, because this is a request for contempt, the Court cannot undertake its usual
interpretation of the order and municipal bylaw to find clarity. Defendant, therefore, suggests
that we cannot find Defendant in contempt.

       We do not agree that the injunctive order’s reference to “single-family dwelling” is
unclear. While the Bylaws do not define “single-family dwelling,” they do define “dwelling,”
and within that definition, “family”:

        A building designed or used as the living quarters for one or more families.
        There shall be no more than one family domiciled per dwelling unit. For the
        purposes of this definition, a “family” shall mean one or more persons living as
        a household unit, but not including individuals or groups occupying rooming
        and boarding houses, clubs, motels, or hotels.

Bylaws, Appendix B. Thus, to determine whether Defendant has complied with the injunctive
order, we consider whether Defendant’s use of the home involves “one or more persons living
as a household unit.” See id. (emphasis added).

       This Court’s September 2, 2011 Decision provided Defendant with additional clarity
concerning the aspects or characteristics of living as a household unit:

        Persons living in a single-family dwelling live as a household unit, regardless of
        whether all or only some of the household members contribute money or
        services to the running of the household. Other jurisdictions that have
        addressed this issue have held that a single-family zoning regulation includes
        groups of unrelated persons living together in which the living arrangement is
        stable, permanent, and not for profit, and the people living together function in
        the same manner that a traditional family unit would function. See, e.g.,
        Appeal of Miller, 511 Pa. 631, 638 (Pa. 1986) (holding that a single housekeeping
        unit is one in which a family residential setting is apparent, and excludes
        arrangements established primarily for profit); Borough of Glassboro v.
        Vallorosi, 117 N.J. 421, 431 (N.J. 1990) (holding that a group of unrelated persons
        living together as a single housekeeping unit must exhibit stability, permanency,
        and a functional lifestyle that is equivalent to a traditional family unit to satisfy a
        single family zoning regulation)….

Thus, to determine whether Defendant is complying with the injunctive order, we look to
aspects of the use and nature of the living arrangements at the subject property, such as stability
and permanence of people at the house, whether the living arrangements are for profit, and
whether the people living together function as a traditional family unit.
Town of Fairfax vs. Beliveau, No. 274-11-08 Vtec (EO on Mot. for Contempt) (07-24-12)   Pg. 4 of 5.


       Based upon the parties’ filings, and the testimony and evidence that the Court received
during the July 18, 2012 show cause hearing, we conclude that Defendant’s use of the home has
not changed since the October 24, 2011 injunctive order. After issuance of the injunctive order,
Defendant did not change aspects of the physical layout of the home, ask the tenants to change
or modify the way they used the home, or ask the tenants to change how they interacted with
each other. Furthermore, Defendant has had approximately seven new tenants move into the
house since issuance of the October 2011 injunctive order.

        The physical layout and design of the house has not changed since the issuance of the
injunctive order. Based upon the Town’s November 14, 2011 inspection of the property, there
are ten or eleven bedrooms, one kitchen, three private bathrooms (meaning they are directly
and only accessible from a bedroom), and two public bathrooms. Most or all of the bedrooms
have their own refrigerators and microwaves supporting independent living by separate
tenants. The basement has two clothes washers and two dryers. The nature of the layout and
design is strong evidence of a building designed for independent living, more like a dormitory
than single-family home.

        Furthermore, the evidence relating to how the property is currently being used supports
the conclusion that the tenants do not live as a household unit. One of Defendant’s tenants,
Mary Newman, testified that she rented a room at the property from August 2011 to November
1, 2011. During this time, Ms. Newman locked her room when she was not present. She
explained that she kept all of her belongings in her individual room. This way of living is less
akin to traditional single-family living and more akin to dormitory living. Ms. Newman
collected her belongings and moved out of her room at the beginning of November 2011. At
the time that Ms. Newman moved out, no other occupant was home, and, since then, she has
not contacted nor had any dealings with any of the other occupants. Again, it is not typical for
household members to move out of their house without saying goodbye and having no contact
thereafter.

         In response to the Town’s questions during the show cause hearing, Defendant testified
that all the ten or eleven bedrooms in the house are lockable from the outside and that he
provides a key to tenants so that they can lock their individual rooms. This is not a typical
aspect of a traditional single-family home. Defendant also testified that he does not go out to
dinner with tenants, vacation with tenants, or shop for groceries with tenants. He stated that,
when living at the property, he and his wife would, from time to time, host a bar-b-que for
tenants or that his wife would cook a meal for everyone. Although the sharing of meals is a
trait of single-family living, Defendant suggested that this act was infrequent at best.

        When taken together, the evidence illustrates that Defendant does not use his property
as a single-family house. We reach this conclusion based upon all of the evidence presented.
While many of the uses discussed above, when taken individually, can exist in a single-family
home, it is the totality of the evidence that leads to our conclusion that Defendant has not
complied with the injunction because he has failed to return the property to single-family use.
Town of Fairfax vs. Beliveau, No. 274-11-08 Vtec (EO on Mot. for Contempt) (07-24-12)           Pg. 5 of 5.


    Based upon the foregoing, the Town’s Motion for Contempt is GRANTED, and it is
ORDERED that:
         1. Defendant has ceased the use of the property at 1166 Main Street in the Town
            of Fairfax, Vermont as a rooming and boarding house, as that term is defined
            in the Zoning Bylaws.
         2. Defendant has NOT returned the use of the property to that of a single-family
            dwelling, as that term is defined in the Zoning Bylaws, nor has Defendant
            obtained Town approval for the change of use from that of a single-family
            dwelling.
         3. On or before October 24, 2012, Defendant shall fully comply with the October
            24, 2011 (and March 30, 2012) injunctive order by returning the use of the
            property to that of a single-family dwelling, as that term is defined in the
            Zoning Bylaws, or by obtaining Town approval for the change of use from that
            of a single-family dwelling.1 To the extent that Defendant is unclear of the
            meaning or nature of single-family use, Defendant shall reference pages 9 and
            10 of this Court’s December 2, 2011 Decision and Order on Summary
            Judgment after Remand from Supreme Court (Sept. 2, 2011), which is quoted
            above.
         4. Beginning on the date of this Order, and continuing until full compliance with
            the October 24, 2011 injunction is realized, Defendant is hereby sanctioned
            with a fine of $100.00 per day. This accumulating fine is fully purgeable upon
            timely compliance. For the fine to be purged, and thus for Defendant to
            avoid payment, full compliance with the injunction must be accomplished on
            or before October 24, 2012. Should Defendant fail to timely comply with this
            Order, the fine will become due on October 24, 2012, payable to the Town of
            Fairfax.
         5. The Court DENIES the Town’s request for reimbursement of its costs and fees
            in pursuing contempt. In the unfortunate event that further contempt actions
            are necessary due to Defendant not achieving full compliance with the
            injunctive order on or before October 24, 2012, however, the Town’s requests
            for reimbursement of all of its costs and fees relating to contempt may be
            further considered.




_________________________________________             July 24, 2012
       Thomas G. Walsh, Judge                               Date
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Date copies sent: _________________                                  Clerk's Initials _______
Copies sent to:
    John H. Klesch, Attorney for Town of Fairfax
    Peter J. McDougall and Robert S. DiPalma, Attorneys for Defendant Leon Beliveau


1
  As the injunction potentially impacts tenants and their rights, we provide 90 days to allow Defendant
sufficient time from the date of this order to comply.
