Chippers, Inc. CU ( 2016 )

STATE OF VERMONT
SUPERIOR COURT ENVIRONMENTAL DIVISION
Docket No. 51-6-16 Vtec
Chippers, Inc. Conditional Use Appeal
ENTRY REGARDING MOTION
Count 1, Municipal ZBA Conditional Use (51-6-16 Vtec)
Title: Motion for Contempt (Motion 3)
Filer: Hudson Holland, Margaret Holland and Brian Alderfer
Attorney: Peter K. Vollers
Filed Date: September 16, 2016
Response in Opposition filed on 09/22/2016 by Atty. Paul S. Gillies for Appellant Chippers, Inc.
Decision on Motion to Enjoin and to Hold Appellants in Contempt
This is an appeal from the decision of the Town of Pomfret Zoning Board of Adjustment
(“ZBA”) denying a conditional use application for storage of logs on a property in Pomfret,
Vermont. The matter is now before the Court on Interested Persons Hudson and Margaret
Holland and Brian Alderfer’s (“the Interested Persons”) “Motion to Enjoin Appellant’s Violation
of the Court’s Order and to Hold Appellant in Contempt,” filed on September 16, 2016. Chippers
filed a response on September 22, 2016, and the Interested Persons filed a reply on October 4,
2016. The Town of Pomfret (“the Town”) has not filed any pleadings related to the present
motion.
Chippers is represented by attorneys Paul S. Gillies, Stephen F. Coteus, and Ryan P. Kane.
Interested Persons are represented by attorney Peter K. Vollers. The Town is represented by
attorney Amanda S.E. Lafferty.
In a previous motion, filed June 29, 2016, Chippers asked the Court to grant a stay of the
ZBA’s denial of its conditional use permit application. We held a hearing on that motion on
August 8, 2016. At the hearing, Atty. Gillies explained that there had been no enforcement action
against Chippers, and that the motion to stay was prophylactic in nature to ensure that Chippers’
business activities would not be interrupted. Because there had been no directive from the
Town, either in the zoning administrator’s decision, the ZBA decision, or in a separate
enforcement action, instructing Chippers to cease its activities, the Court determined that there
was nothing to be stayed. The Court therefore decided to deny the motion. In doing so, the
Court explained that this denial would not foreclose Chippers from filing a new motion to stay if
In re Chippers, Inc. Cond. Use Appeal, No. 51-6-16 Vtec (EO on motion for contempt) (12-19-2016) Page 2 of 2.
in the future the Town were to initiate an enforcement action or otherwise direct Chippers to
cease operations. We issued an Entry Order to this effect on August 9, 2016.
In the present motion, the Interested Persons argue that Chippers is in violation of our
August 9, 2016 Entry Order by continuing to operate its business. The Interested Persons ask us
to enjoin Chippers from continuing its activities on the subject property, and to hold Chippers in
contempt for violating our August 9, 2016 Entry Order.
As we explained in the August 8, 2016 hearing, we denied Chippers’ motion to stay
because there is nothing from the Town directing Chippers to cease activity, or prohibiting any
activity, before us. The zoning decision on Chippers’ conditional use application that is before us
does not include any enforcement action, nor has any enforcement action been filed in this Court
under either 24 V.S.A. § 4470(b) or 24 V.S.A. §§ 4451–52.
According to Chippers, after we issued our August 9, 2016 decision the Town did initiate
an enforcement action, in the form of a Notice of Violation (“NOV”) issued by the zoning
administrator. That NOV was first appealed to the ZBA, and an appeal of that ZBA determination
has just recently been filed with this Court. See In re Chippers, Inc. NOV Appeal, No. 162-12-16
Vtec (filed Dec. 5, 2016). We anticipate scheduling the initial conference in the NOV Appeal
within the next month. See also In re Fennessey’s 20 West Main St., LLC, Nos. 14-1-10 Vtec, 154-
9-10 Vtec, slip op. at 6 (Vt. Super. Ct. Envtl. Div. Aug. 19, 2011) (Wright, J.) (explaining process by
which an action to cure a zoning violation, including by injunction, may come before the
Environmental Division). In addition, because we have not issued any injunction against
Chippers, we cannot hold Chippers in contempt for violating a non-existent injunction. For these
reasons, the pending motion is Denied.
So ordered.
Electronically signed on December 19, 2016 Newfane, Vermont, pursuant to V.R.E.F. 7(d).
________________________________
Thomas S. Durkin, Judge
Environmental Division
Notifications:
Paul S. Gillies (ERN 3786), Stephen F. Coteus (ERN 8050), and Ryan P. Kane (ERN 6705),
Attorneys for Appellant Chippers, Inc.
Peter K. Vollers (ERN 4890), Attorney for Interested Persons Hudson Holland, Margaret Holland
and Brian Alderfer
Amanda S. E Lafferty (ERN 5113), Attorney for Interested Person Town of Pomfret
For Informational Purposes Only Michael Reese
nlow
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