                                  STATE OF VERMONT

                               ENVIRONMENTAL COURT

                                          }
Town of Calais,                           }
     Plaintiff,                           }
                                          }
                v.                        }       Docket No. 142-6-06 Vtec
                                          }
Barbara Noordsij,                         }
      Defendant.                          }
                                          }

               Decision and Order on Motion for Reconsideration and to Alter

      The Town of Calais brought an enforcement action against Defendant Barbara

Noordsij, asserting violations of the conditions of her zoning permit for the construction

of a barn.      The Town is represented by Joseph S. McLean, Esq.; Defendant is

represented by David J. Blythe, Esq.

      Defendant had not appealed the Notice of Violation to the Development Review

Board, and consequently was precluded from contesting the violation, either directly or

indirectly. After this and other issues were resolved by summary judgment, an

evidentiary hearing was held on the matter of an appropriate penalty, before Merideth

Wright, Environmental Judge. The Town sought a penalty in the amount of $39,136.92

in its post-hearing memoranda. The Court issued a decision on the merits imposing a

penalty for the violation of $24,695, or $43.63 per day over 566 days of violation.

Defendant has moved for the Court to reconsider its decision and alter the amount of

the penalty.

      Relief pursuant to a motion to reconsider is “an extraordinary remedy that

should be used sparingly.” In re Bouldin Camp – Noble Road, No. 278-11-06 Vtec, slip

op. at 1 (Vt. Envtl. Ct. Sept. 13, 2007) (Wright, J.) (quoting 11 Wright, Miller & Kane,

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Federal Practice and Procedure: Civil 2d § 2810.0). A motion to reconsider should not

be used to repeat arguments that have been raised and rejected by the court in the prior

decision, id. at 1, nor should such a motion be used present evidence that could have

been presented prior to judgment. Rubin v. Sterling Enters., 164 Vt. 582, 589 (1996); In

re South Village Communities, LLC, No. 74-4-05 Vtec, slip op. at 2 (Vt. Envtl. Ct. Sept.

14, 2006) (Durkin, J.) (citing 11 Wright, Miller & Kane, supra).

       The limited functions of a motion to reconsider are “’to correct manifest errors of

law or fact’ on which the decision was based, to allow the moving party to present

newly discovered or previously unavailable evidence, to prevent manifest injustice, or

to respond to an intervening change in the controlling law.” In re Vanishing Brook

Subdivision, No. 223-10-07 Vtec, slip op. at 4 (Vt. Envtl. Ct. July 10, 2008) (Wright, J.)

(quoting 11 Wright, Miller & Kane, supra).        The Court has reviewed its notes made

during the trial, in connection with these motions, as the parties did not provide a

transcript.

       Defendant has requested that the Court reconsider its comment on the evidence

that the $5,000 estimate provided by Defendant’s contractor at trial as the avoided cost

of storage of the partially-completed prefabricated building appeared to be low.1 First,

it is important to recognize that the Court’s actual finding regarding the avoided cost of

storage as of the time of the Notice of Violation was based on the $5,000 figure (plus

interest for the duration of the violation), despite the contested comment, as no other

evidence was presented by either party regarding the cost of storage. Town of Calais v.

Noordsij, No. 142-6-06 Vtec, slip op. at 7 (Vt. Envtl. Ct. Aug. 29, 2008) (Wright, J.).


1  The decision stated that the contractor’s $5,000 “estimate appears to the Court to be a
low estimate, as it has to cover eighteen or nineteen months rental of a storage location
protected from the elements, as well as the transportation of the materials in both
directions, and the labor of any dismantling of the portion of the structure that had been
completed as of that time.” Town of Calais v. Noordsij, No. 142-6-06 Vtec, slip op. at 5
(Vt. Envtl. Ct. Aug. 29, 2008) (Wright, J.).
                                              2
       The comment was supported by the evidence at trial, as Defendant’s contractor

referred to his estimate of $5,000 as what he had “guessed2 off the top of [his] head,” in

response to a question regarding whether the steel frame could have been disassembled

by unbolting it and taking it down. Several questions earlier, Defendant’s contractor

had testified that an alternative to continuing to construct the building after the Notice

of Violation had issued would have been to have “dug it all out and trucked it to a

warehouse somewhere, preferably heated.”           The $5,000 estimate therefore covered

dismantling the partially constructed frame and may have included the time involved

in trucking it to a warehouse, but it did not include the warehouse rental costs and, as

the contractor testified on cross-examination, it did not include the equipment necessary

to load the prefabricated pieces onto a truck and unload it at the warehouse.

       It is also important to note that the $5,000 estimate did not represent the cost of

installing the building in the correct, permitted location to begin with, nor the cost of

installing it in the as-built location not then yet permitted. That is, it was not the cost of

curing the violation so as to end up with the proposed building in its permitted

location. Rather, it was the cost of putting the building in storage while a permit was

applied for to place the building in the new nonconforming location.

       Moreover, Defendant’s own evidence also reflected that the cost of the work and

materials necessary to have installed a slab foundation and to have moved the

prefabricated structure in its originally-permitted location was $16,870, as shown on

Defendant’s own Exhibit O. While Defendant presented this evidence to argue that it

was not practical to move the structure to its originally-permitted location, it is that

figure that was the true avoided cost of compliance as of the date of the Notice of

Violation. However, the Court did not measure this component of the penalty by this


2  All quotations are approximate as they are taken from the Court’s notes, not from a
transcript. On cross-examination, the contractor also testified to the effect that he had
“no confidence in that number.”
                                              3
larger amount, even though it was from Defendant’s own evidence, because the DRB

eventually did grant the permit in the as-built location.

       Therefore the Court looked to the Town’s cost of enforcement as a fairer measure

of the appropriate penalty, without adding to it Defendant’s large avoided cost of

compliance. The Court determined that, for the purposes of deterrence, it was not

necessary to impose both the avoided cost of compliance and the Town’s enforcement

costs as the Town had requested, but that essentially the two could run concurrently,

with the avoided cost of compliance being subsumed within the enforcement cost

amount.

       The Court calculated the period of violation as 566 days, commencing seven days

after the Notice of Violation and continuing until the permit was issued by the DRB

authorizing the barn to remain in the location in which it was constructed. This method

of calculating the violation period is supported by the language of 24 V.S.A. § 4451(a),

which indicates that the violation period commences seven days after the Notice of

Violation issues,3 and states that “[e]ach day that a violation is continued shall

constitute a separate offense.” Defendant’s barn remained in an unpermitted location

for 566 days after the Notice of Violation’s seven-day grace period, and therefore the

period of violation was correctly calculated by the Court to be 566 days. The fact that

the violation period could have been shorter had the DRB issued the as-built permit

sooner does not shift the responsibility for the duration of the violation to the DRB.

Rather, the violation period also could have been shorter had the Defendant chosen to

suspend the violation by dismantling and moving the prefabricated structure into


3 “No action may be brought under this section unless the alleged offender has had at
least seven days’ warning notice by certified mail . . . . The seven day warning notice
shall state that a violation exists, that the alleged offender has an opportunity to cure
the violation within the seven days, and that the alleged offender will not be entitled to
additional warning notice for a violation occurring after the seven days.” 24 V.S.A.
§ 4451(a).
                                             4
storage or to the originally-permitted location, during the litigation and the application

period, rather than continuing to complete it in place. These alternatives are not before

the Court, and, in any event, the amount of penalty was calculated by the Town’s

enforcement costs, which was simply divided into the number of days of violation to

yield a daily penalty amount.4     Defendant similarly requests that the Court alter the

penalty to reflect only the costs incurred by the Town during the first 49 days of the

violation period, arguing that the remaining 517 days of the violation period resulted

from the DRB’s interpretation of the zoning bylaws as not allowing it to consider an as-

built application.5

       However, it is not within the Court’s discretion to impose a penalty for only a

portion of the violation period. Town of Barnard v. Rhoades, No. 2001-211, slip op. at 2

(Vt. Jan. 30, 2002) (unpublished mem.) (citing Town of Sherburne v. Carpenter, 155 Vt.

126, 133 (1990)).     “As long as [D]efendant has the benefit of a zoning ordinance

violation, the statute6 requires that [s]he pay a daily fine.” Carpenter, 155 Vt. at 133. All

that the Court has discretion to alter is the daily amount.

       Further, Defendant’s request conflates the concept of the violation period with

the concept of a penalty based on Plaintiff Town’s cost of enforcement. The Court is

permitted to base the penalty on Plaintiff Town’s enforcement costs. City of St. Albans


4
    Even if the duration of the violation is reduced by the approximately six months of
litigation time attributable to the Court’s resolution of the issue of first impression of
whether an as-built permit could be sought in these circumstances, the division of the
Town’s litigation costs by the resulting 386 days still yields a daily penalty amount
within the statutory limit.
5
  In its written decision issued 49 days after the Notice of Violation’s seven-day grace
period, the DRB had concluded that it was not authorized to issue an as-built permit for
the Defendant’s barn. Defendant’s barn remained in the unpermitted location for an
additional 517 days while this issue was resolved on appeal, and the as-built permit was
ruled on and ultimately issued by the DRB.
6 The statute discussed in this case, 24 V.S.A. § 4444(a), was recodified in substantially

the same language at 24 V.S.A. § 4451(a).
                                             5
v. Hayford, 2008 VT 36, ¶¶ 17–18 (mem.); Town of Hinesburg v. Dunkling, 167 Vt. 514,

528–29 (1998).   These costs may include enforcement litigation costs incurred after a

violation is remedied. Within the statutory limit of “not more than $100.00” per day of

violation, 24 V.S.A. § 4451(a), “[t]he court has the discretion to determine the amount”

of the penalty under this statute. Hayford, 2008 VT 36, ¶ 17; see also Dunkling, 167 Vt.

at 529 (“[D]etermining the amount of the fine with regard to the Town’s attorney’s fees

and costs was reasonable.”).

       The penalty imposed by the Court, $43.63 per day for 566 days, is less than half

of the statutory limit, and reflects the appropriate enforcement costs incurred by the

Town and recognizes the avoided costs of the Defendant.           Not only does it not

duplicate any of the penalty factors, this amount imposes no additional penalty

reflecting the avoided costs, but is only measured by the Town’s enforcement costs,

which are sufficient under the circumstances of this case. Accordingly, the Court, after

reexamining the evidence and the penalty considerations, declines to alter the penalty

imposed.

       Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED

that Defendant’s Motion for Reconsideration and to Alter is DENIED. Defendant and

the Town may develop a payment schedule or may apply to the court for such a

schedule, in light of current economic factors, including any request for waiver or

reduction of the statutory interest rate from the date of the August 29, 2008 decision to

the date of the present order.


       Done at Berlin, Vermont, this 9th day of February, 2009.



                            _________________________________________________
                                  Merideth Wright
                                  Environmental Judge


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