                                   STATE OF VERMONT
SUPERIOR COURT                                                 ENVIRONMENTAL DIVISION
Environmental Division Unit                                        Docket No. 48-5-15 Vtec
                                                            142-12-15 Vtec, and 8-1-16 Vtec

                     Langlois/Novicki Appeals and Enforcement

                             ENTRY REGARDING MOTION

Count 1, Municipal DRB Multiple Types (48-5-15 Vtec)

Title:        Motion for Summary Judgment (Motion 2)
Filer:        Town of Swanton
Attorney:     Edward G. Adrian
Filed Date:   March 16, 2016

Response in Opposition filed on 04/14/2016 by Attorney Katelyn E. Ellermann for Appellant
Edward Novicki.
Reply filed on 04/22/2016 by Attorney Edward G. Adrian for the Town of Swanton.

The motion is DENIED.

       In its pending motion, the Town of Swanton (“Town”) asserts that all facts material to
Appellants’ application for a variance (Docket No. 48-5-15 Vtec), their appeal of the notice of
alleged zoning violation served upon them by the Town (Docket No. 142-12-15 Vtec), and the
Town’s zoning enforcement action (Docket No. 8-1-16 Vtec), are undisputed and that the
applicable law requires that the Court enter summary judgment in each docket in the Town’s
favor and remove the opportunity for all parties to present evidence at a coordinated trial,
currently scheduled to begin on Monday, July 11, 2016.
       The three pending coordinated actions present somewhat novel legal issues concerning:
(1) whether the applicable zoning regulations require a permit be received for the already built
pergola; (2) whether the pre-existing cement seawall patio has legal relevance to the pergola
permit question; (3) whether Appellants provided sufficient detail for their pergola plans to the
Town of Swanton Zoning Administrator (“ZA”), not for a permit application, but rather for a
determination of whether a permit was needed; (4) whether such a determination needs to be
noticed and in writing to be relied upon; (5) whether Appellants may reasonable rely upon a
verbal determination; and (6) how familiar Mr. Langlois was with the applicable zoning
regulations and whether his knowledge has a legal impact upon Appellants’ equitable estoppel
claim against the Town.
In re: Langlois/Novicki Appeals and Enforcement, Nos. 48-5-15 Vtec, 142-12-15 Vtec, and 8-1-16 Vtec
(Entry Order on sj motion)(06-10-2016)                                                  Page 2 of 2.

         It appears to the Court that many of the facts material to these legal questions are
disputed. We therefore decline to grant the pending motion and direct that the parties prepare
for trial.
         As the parties prepare for trial, the Court offers the following questions and comments.
First, the Court is familiar with the unenviable challenges that zoning administrators must
address as property owners seek advice on what they may do on their property. Thankfully,
our laws do not hold administrators to a perfection standard; we recognize that sometimes
administrators make mistakes when called upon for regulatory interpretations. The disputed
facts here may help render a legal determination on whether the ZA correctly interpreted the
applicable regulations and, if not, whether Applicants’ reliance upon that interpretation may be
upheld. We will look to the applicable legal standards in determining what facts are relevant to
these determinations. Compare In re Burns Two-Unit Residential Building, 2016 VT 63, ¶¶ 13–
14 (only zoning administrator determinations that are properly noticed enjoy the benefit of
finality of 24 V.S.A. § 4472(a)) with Town of Bennington v. Hanson-Walbridge Funeral Home,
Inc., 139 Vt. 288, 292–93 (1981)(suggesting that an administrator’s determination that no
permit is required for a specified project is a binding determination).
        Further, we question the relevancy of the ZA’s acquaintance with Mr. Langlois and its
bearing upon the legal issues at hand. If the trial evidence reveals that a permit is required
under the applicable regulatory provisions for the now-constructed pergola, then it appears
that the only legal issue remaining in the variance and NOV appeals is whether Applicants are
legally entitled to rely upon what would have then been determined to be an incorrect
determination. Facts that will govern that second legal issue are also disputed.
       Lastly, we note that the legal standards for applying equitable estoppel are heightened
when it is a governmental entity that is sought to be estopped. See, Lakeside Equip. Corp. v.
Town of Chester, 2004 VT 84, ¶ 8, 177 Vt. 619. We look forward to all parties’ presentations of
evidence relevant to the application of equitable estoppel against the Town.

So ordered.

Electronically signed on June 10, 2016 at Newfane, Vermont, pursuant to V.R.E.F. 7(d).



________________________________
Thomas S. Durkin, Judge
Environmental Division

Notifications:
Katelyn E. Ellermann (ERN 6654), Attorney for Appellants Gary Langlois & Edward Novicki
Edward G. Adrian (ERN 4428), Attorney for the Town of Swanton
Interested Person Michael Heller
Interested Person Shawn Robtoy
dchamber
