Town of Woodstock v. First Student ( 2003 )

STATE OF VERMONT
ENVIRONMENTAL COURT
Town of Woodstock v. }
First Student, Inc. }
Docket No. 36-3-03
}
Vtec
}
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Decision and Order on Motion to Dismiss and in Opposition to
Injunctive Relief
The Town of Woodstock filed this complaint to enforce the terms of,
and also to revoke, its zoning permit T-2536-96. This permit had also
been the subject of two appeals in this Court, a final decision in which
was issued on January 6, 2003. Defendant First Student, Inc. appealed
in Docket No. 138-8-01Vtec from the denial of an amendment to its
conditional use approval to allow parking of 21 school buses on site
year-round, and appealed in Docket No. 211-12-01 Vtec from the
denial of an amendment to its conditional use approval to allow
parking of 21 school buses on site during the day and 17 overnight,
year-round. In those appeals this Court also denied First Student,
Inc.= s proposals to amend its conditional use approval to allow the
parking of 17 or 21 school buses on the property year-round.
The Town of Woodstock is represented by Todd C. Steadman, Esq.,
Emily S. Davis, Esq., and Laurie S. Levin, Esq.; Defendant First
Student, Inc., is represented by Thomas Hayes, Esq. Defendant has
moved to dismiss the complaint for failure to state a cause of action
and because the remedies sought are not available in this Court.
The Complaint alleges in Count I violations of the number of buses on
site; in Count II violations of the requirement that the buses park in a
designated screened parking area; in Count III violations of the
designated parking area for private vehicles; and in Count IV violations
of the town= s performance standards when the buses are idling. The
Complaint seeks damages, injunctive relief with regard to parking
location and the number of buses on site, and revocation of its zoning
permit T-2636-96.
First, with respect to the claims for relief, Defendant is correct that
nothing in the zoning enabling act, 24 V.S.A. Chapter 117, provides for
a Town to receive damages in an enforcement action. In a successful
enforcement action, a Town can receive monetary penalties under 24
V.S.A. ' 4444 of up to $100 per day (or such lesser amount as
provided for in the Town= s zoning regulations). However, a
prerequisite of a claim under ' 4444 is a notice of violation and
opportunity to cure. The Administrative Officer issued a notice of
violation regarding Count I, the number of buses allowed to be parked
on site, on February 10, 2003. Therefore, with respect to Count I only,
the motion to dismiss is DENIED; leave is hereby given to the Town to
amend its Complaint to claim the statutory monetary penalty rather
than > damages.= With respect to monetary penalties for the
remaining three counts, the motion to dismiss is GRANTED; without
prejudice to any further filings if and after the required notice of
violation and opportunity to cure has been provided to Defendant. We
note for the parties= consideration that a notice of violation must have
been appealed in order for a defendant to contest the existence of the
violation in a later enforcement action. 24 V.S.A. ' 4472(a); Town of
Charlotte v. Richmond, 158 Vt. 354 (1992).
Defendant is also correct that nothing in the zoning enabling act, 24
V.S.A. Chapter 117, provides for a Town to revoke a permit that has
become final. In some municipalities, a permit application contains
language that any permit will become void for misrepresentation on
the permit application; however, that is not the claim made in this
complaint. Therefore, with respect to the request for relief for
revocation of Defendant= s zoning permit the motion to dismiss that
request for relief is GRANTED.
Both 24 V.S.A. ' 4445 and 24 V.S.A. ' 4470(c) provide for prospective
injunctive relief, the former for violations of the ordinance and the
latter for violations of orders of the ZBA (or this Court on appeal).
Accordingly, Defendant= s motion to dismiss the request for injunctive
relief is DENIED.
At a telephone conference held today with Attorneys Davis and Hayes,
at which Judge Wright outlined the substance of this order, the parties
agreed that they would need to do discovery on the dates of violation
on Count I, that they may also wish to discuss settlement, that in any
event the hearing would not take more than half a day, and that they
agreed to its being rescheduled to September 23, 2003, beginning at 1
p.m., at the courtroom in the Oakes building at the Vermont Law
School. Accordingly, enclosed with this order is the rescheduled notice
of hearing.
Done at Barre, Vermont, this 21st day of July, 2003.
___________________
Merideth Wright
Environmental Judge
Footnotes
1.
The zoning permit number appears as T-2536-96 in the prayer for
relief and the February 10, 2003 notice of violation, and as 2636 in
paragraph 2 of the Complaint.