                               STATE OF VERMONT
SUPERIOR COURT                                        ENVIRONMENTAL DIVISION
Vermont Unit                                            Docket No. 117-8-13 Vtec

City of Burlington,
        Plaintiff

       v.
                                                  DECISION ON THE MERITS
Timothy A. Muir,
Frances D. Muir,
      Defendants



       This matter relates to the City of Burlington’s August 23, 2013 Enforcement
Complaint and request for Injunctive Relief (Complaint), alleging that Timothy A. Muir
and Frances D. Muir (Defendants) have multiple zoning violations on their properties at
52 North Cove Road and 68 North Cove Road in the City of Burlington, Vermont (the
City). The City notified Defendants of the alleged violations in an August 24, 2012
Notice of Violation related to 52 North Cove Road and a September 14, 2012 Notice of
Violation related to 68 North Cove Road. The Complaint alleges that Defendants have
neither remedied any of the multiple violations noticed by the City nor appealed the
Notices of Violation.
       On November 22, 2013, after Defendants failed to timely answer the Complaint,
this Court granted the City’s Motion for Default Judgment and sent notice to all parties
for a December 23, 2013 hearing to determine the appropriate remedies and penalties
for the violations (remedies hearing). Due to inclement weather on December 23, the
Court held a telephonic status conference, in which Defendants participated, and
rescheduled the remedies hearing for January 10, 2014. On January 6, 2014, Defendants
filed a motion seeking to respond to the Complaint and during the January 10 hearing,
Defendants further argued for setting aside the default judgment. The Court gave the
City time to respond to Defendants’ motion to respond to the complaint and advised
the parties that the remedies determination would be set for a hearing following the
decision on the motion. On May 1, 2014, we denied Defendants’ motion to set aside the
default judgment and shortly thereafter rescheduled the remedies hearing for May 30,
2014.
        Defendant Timothy A. Muir appeared late at the May 30 remedies hearing.
Shortly after his arrival, Mr. Muir requested a continuance to allow Defendants time to
retain an attorney. On the record of the May 30 hearing, this Court advised Defendants
that if they wished to be represented in this matter, they were to retain counsel and
advise counsel to file an appearance with this Court by June 13, 2014 as well as to
participate in a June 16, 2014 status conference to discuss rescheduling the remedies
hearing. Defendants did not retain counsel and represented themselves at the June 16,
2014 status conference.
        On July 1, 2014, the Court set the remedies hearing for August 29, 2014. On July
7, 2014, Defendants filed a Motion for Continuance. In a July 23, 2014 Entry Order we
denied Defendants’ motion to continue the August 29 hearing.
        A remedies hearing was held on August 29, 2014 at the Costello Courthouse to
determine the appropriate remedies and penalties for the violations.         Kimberlee J.
Sturtevant, Attorney for Plaintiff City of Burlington, and Defendant Frances D. Muir
appeared at the remedies hearing. Defendant Timothy A. Muir did not attend the
remedies hearing.
                                     Findings of Fact
1.      Defendants own 52 North Cove Road and 68 North Cove Road in Burlington,
        Vermont.
2.      The City has enacted zoning regulations set forth in the City of Burlington,
        Vermont Comprehensive Development Ordinance (CDO).
3.      On August 24, 2012, the City served Defendants with a written Notice of
        Violation for 52 North Cove Road for the failure to obtain requisite City approval
        for: 1) a change in use from a vacant parcel to a contractor’s yard, 2) storing
        construction material on the property, 3) constructing a barrier/retaining wall

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     along the northern boundary of the property, 4) grading the land, 5) adding fill
     to wetlands, 6) encroaching into setback areas and increasing lot coverage, 7),
     storing vehicles and materials on private parking lot, and 8) being noncompliant
     with the City’s Special Flood Hazard Area Regulations.
4.   On September 14, 2012, the City served Defendants with a written Notice of
     Violation for 68 North Cove Road for:
     a.    Failing to comply with conditions of Zoning Permit 08-246CA, including
           the failure to construct/implement all planters as approved by the site
           plan, the failure to plant approved landscaping, constructing a driveway
           exceeding approved dimensions, the failure to remove a shed roof,
           parking vehicles in an manner that is inconsistent with the permit, and
           undertaking unapproved exterior storage of materials;
     b.    Failing to obtain a certificate of occupancy for Zoning Permit 08-246CA;
     c.    Failing to comply with conditions of approval 1-4 in Zoning Permit 08-
           246CA;
     d.    Changing the use of the property from residential to residential with a
           contractor’s yard without the necessary zoning approvals;
     e.    Exceeding CDO coverage limitations due to exterior storage and
           unpermitted parking;
     f.    Violating setback requirements by constructing a rooftop within the
           setback, storing materials, and parking vehicles within the setbacks; and
     g.    Violating the conditions of agreement established between the City and
           Defendants on July 20, 2007.
5.   Neither of the Notices of Violation were appealed or otherwise challenged.
6.   On August 23, 2013, the City filed a Complaint and Motion for Injunctive Relief
     with this Court alleging that Defendants have neither remedied any of the
     multiple violations noticed by the City nor appealed the Notices of Violation.
7.   On August 29, 2013, the City served the Complaint and Motion for Preliminary
     and Permanent Injunctive Relief upon Defendants.

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8.      On November 22, 2013, after Defendants failed to timely answer the Complaint,
        this Court granted the City’s Motion for Default Judgment.
9.      Defendants have failed to remedy the violations for 52 and 68 North Cove Road.
10.     The City’s legal fees and expenses incurred in this matter total $4,104.50.
11.     The City’s Code enforcement staff incurred total costs of $6,069.00 investigating
        and seeking correction of the violations in this matter.
                                                Discussion
        Due to Defendants’ failure to appeal or otherwise timely challenge the August 24
and September 14, 2012 Notices of Violation, the alleged violations are final and
binding.     24 V.S.A. §§ 4472(a), (d).1         Furthermore, as a consequence of Defendants
failure to timely answer the Town’s complaint, the Court previously awarded a default
judgment in the City’s favor.
        During our August 29, 2014 hearing, the Court considered appropriate remedies
for the violations. Ms. Muir admitted to the placement of fill on Defendants’ properties
but asserted that this was done to prevent erosion, to repair erosion, and to repair
sinkholes. Ms. Muir also admitted that they constructed a rock wall using rocks placed
along the cove, but she offered that this activity was for erosion control rather than as a
retaining wall.      Ms. Muir further admitted to parking a camper, allowing storage
trailers and several vehicles to be stored on their property, and to storing firewood and
other lumber and materials on their property. Ms. Muir asserted that all of these
activities were necessitated by Hurricane Irene.
        Ms. Muir additionally admitted that Defendants have not complied with permit
conditions for 68 North Cove Road and that there are multiple vehicles and storage
trailers on the property.         Again, Ms. Muir argued that this was a consequence of
difficulties caused by flooding from Hurricane Irene.

1 “[T]he exclusive remedy of an interested person with respect to any decision or act taken, or any failure

to act, under this chapter or with respect to any one or more of the provisions of any plan or bylaw shall
be the appeal to the appropriate panel under section 4465 of this title . . . .” 24 V.S.A. § 4472(a). “Upon
the failure of any interested person to appeal to an appropriate municipal panel under section 4465 of this
title, all interested persons affected shall be bound by that decision . . . and shall not thereafter contest,
either directly or indirectly, the decision . . . .”

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       As discussed above, the determination that violations have occurred on
Defendants’ properties is final and binding. The Town’s Complaint for enforcement
seeks an injunction requiring Defendants to cease all continuing violations, including
but not limited to, removal of all vehicles, materials, and fill from 52 N. Cove Road,
thereby restoring it to its recognized use as a vacant lot, and complying with ZP#08-
246CA for 68 N. Cove Road, including, but not limited to, obtaining a Certificate of
Occupancy.
       When a municipality seeks an injunction, the Court first asks whether the
violation is substantial, and second, whether the landowner’s violation is innocent or
involves conscious wrongdoing. See Town of Shelburne v. Carpenter, 155 Vt. 126, 131–
32 (1990). The municipality does not have to show irreparable harm or the lack of an
adequate alternative remedy to obtain an injunction; the showing of a violation is
sufficient. Id. at 129.
       The issue of whether the violation is substantial entails the difficult weighing of
the public injury against the private loss. The Vermont Supreme Court has noted that
there comes a point where the violation is so insubstantial that it would be unjust and
inequitable to require action through a mandatory injunction. See Id. at 131. Based
upon the evidence in this matter, and a set forth in the above findings of fact, the several
violations are substantial.
       In reviewing whether the violations are innocent or conscious wrongdoing, we
note that courts have generally found that a conscious decision to go forward, in the
face of a direction not to from the regulatory body, is not innocent.            Id. at 132.
Defendants have long been made aware by the City that their many activities at the two
properties are violations, and therefore, they cannot be considered innocent.
       24 V.S.A. § 4452 provides that if any construction or alteration of a structure or
any change of use of land violates a bylaw, the “administrative officer shall institute . . .
any appropriate action, injunction, or other proceeding to prevent, restrain, correct, or
abate that use, or to prevent, in or about those premises, any act, conduct, business, or
use constituting a violation.” (emphasis added). We therefore GRANT the City an

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injunction and ORDER that Defendants immediately take action to cease the continuing
violations at 52 and 68 North Cove Road.
          In addition to the above injunctive relief, this Court has “the discretion to
determine the amount of a fine, and, in doing so, to balance any continuing violation
against the cost of compliance and to consider other relevant factors, including those
specified in the Uniform Environmental Law Enforcement Act.” City of St. Albans v.
Hayford, 183 VT 596, 600 (2008) (citing In re Jewell, 169 Vt. 604, 606–07 (1999)). In this
analysis, we accept Ms. Muir’s evidence explaining Defendants’ circumstances and
difficulties, offered through testimony and exhibits, as mitigating factors for the Court
to consider when determining appropriate penalties and injunctive relief.
          We note that the City’s CDO, at Section 2.7.7(b) provides that pursuant to an
enforcement action, any person who violates the ordinance shall be fined not more than
the maximum amount authorized by statute for each offense. The enabling statute, 24
V.S.A. § 4451(a), formerly authorized assessment of $100 per day per offense. Effective
July 1, 2012, this statute was amended to authorize assessment of up to $200 per day
offense. Both the August 24 and September 14 Notices of Violation expressly state that
a person who violates the CDO may be subject to fines up to $100 for each day the
violation continues. Thus, we conclude that the maximum fine that we could impose in
this matter is limited by the terms of the two Notices of Violation, this being a
maximum of $100 for each day a violation continues.
          With respect to 52 North Cove Road, Defendants had seven days from the
August 24, 2012 Notice of Violation, or until August 31, 2012, to cure the violations
without being subject to fines and penalties. As of August 29, 2014, the violations were
not cured. Thus, there are in excess of 720 days that the violations existed at this
property. Considering the eight individual offenses and that each day the violation
continues is a separate offense, the potential penalty range for this property is $5,7602 to
$576,000.



2   The minimum fine we consider is $1 for each day for each offense.

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        With respect to 68 North Cove Road, Defendants had seven days from the
September 14, 2012 Notice of Violation, or until September 21, 2012, to cure the
violations without being subject to fines and penalties. As of August 29, 2014, the
violations were not cured. Thus, there are in excess of 700 days that the violations
existed at this property. Considering the seven individual offenses and that each day
the violation continues is a separate offense, the potential penalty range for this
property is $4,900 to $490,000.
        The total penalty range for the two properties is therefore between $10,660 and
$1,066,000. The City seeks a minimum fine of $10,173.50 which is the equivalent of its
attorney fees and other costs of enforcement.
        In our considering enforcement matters, we consistently conclude that
Section 4451(a) implies that “we reserve a fine of $100.00 per day for the most egregious
of zoning infractions.”        In re Huntington NOV Appeal and Town of Bradford v.
Huntington, Nos. 204-8-06 Vtec and 209-9-06 Vtec, slip op. at 8 (Vt. Envtl. Ct. Mar. 18,
2008) (Durkin, J.); see also Town of Hinesburg v. Dunkling, 167 Vt. 514 (1998). Fines
authorized by 24 V.S.A § 4451(a) are civil in nature; they must not be punitive and they
must be “rationally related to the damages suffered from landowner’s violation of [the]
Town’s bylaw.” Id. at 528. It is clear that the City has incurred considerable expense,
including expenditures for both legal services and staff time and resources, to compel
Defendants’ compliance, and that Defendants’ continued non-compliance puts
neighboring properties and people at some safety risks.
        We also note that the Uniform Environmental Law Enforcement Act, 10
V.S.A.§ 8010(b), sets forth seven factors for consideration in determining the
appropriate penalty for violating environmental laws and regulations.3 These factors
include the degree of actual or potential impact on public health, safety, welfare, and
the environment resulting from the violation; the presence of mitigating circumstances,
including unreasonable delay in seeking enforcement; whether the respondents knew


3 Section 8010(b) expressly applies to violations of state environmental law, however, we have used these
factors for considering municipal violations. See City of St. Albans v. Hayford, 183 VT 596 (2008).

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or had reason to know the violation existed; Respondents’ record of compliance; the
deterrent effect of the penalty; the City’s cost of enforcement; and the length of time the
violations existed. Therefore, in light of the injunctive relief requiring Defendants to
cease all continuing violations, and based on mitigating factors set forth in 10 V.S.A.
§ 8010(b, we conclude that in this instance a fine of $1.00 per day is appropriate.
       We therefore impose a fine of $10,660.00.
                                          Conclusion
       Within 60 days of this Order, Defendants shall cease the violations at 52 and 68
North Cove Road by, including but not limited to, removing all vehicles and fill
material from 52 North Cove Road to restore the property to its use as a vacant lot and
by complying with Zoning Permit 08-246CA at 68 North Cove Road by, including but
not limited to, obtaining a Certificate of Occupancy.
       Within 30 days of this Order, pursuant to 24 V.S.A. § 4451 and CDO § 2.7.7(b),
Defendants shall pay to the City a fine of $ 10,660.00.


Electronically signed on January 23, 2015 at 11:04 AM pursuant to V.R.E.F. 7(d).




_________________________________________
Thomas G. Walsh, Judge
Superior Court, Environmental Division




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