Appeal of Adams ( 2004 )

STATE OF VERMONT
ENVIRONMENTAL COURT
Appeal of Adams }
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} Docket No. 145-9-03 Vtec
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Decision and Order on Pending Motions
Appellant John T. Adams appealed from a decision of the Zoning Board of Adjustment (ZBA) of
the Town of Fair Haven, denying his appeal from the acting Zoning Administrative Officer= s
lack of response to his request for the Town to investigate asserted zoning violations at the
Brown= s property at 47 South Main Street and denying his appeal of the issuance of the
Certificate of Occupancy for that property. Appellant represents himself; Appellees Lorraine
Brown and Jay Brown are represented by Christopher T. Corsones, Esq.; and the Town is
represented by William J. Bloomer, Esq.
The Town has moved for partial summary judgment to dismiss all but Question 6 of Appellant= s
Statement of Questions. Appellees Brown have joined in that motion and have moved for partial
summary judgment in their favor on Questions 7 and 8. Appellant has moved to dismiss the
Town as a party (and to strike the Town= s motion for partial summary judgment.
Motion to Strike
First, as Appellees joined in the Town= s motion for partial summary judgment, even if the Town
were dismissed as a party, those issues would be before the Court through Appellees= motion.
Therefore, Appellant= s Motion to Strike the Town= s motion for partial summary judgment is
DENIED.
Motion to Dismiss the Town as a Party
In the present case, Appellant alleges violations by the Browns of various sections of the Zoning
Bylaws, and that the Zoning Administrator failed to respond to Appellant= s requests to
investigate the violations and to take enforcement action. One enforcement issue was whether the
truck parked outside was a sign or constituted advertising under the Zoning Bylaws; another
enforcement issue was whether the storage trailer, stairs and deck were in violation of the
bylaws, and therefore whether a certificate of occupancy should not have been granted. The
Town is entitled to participate as a party on interpretations of its Zoning Bylaws, such as whether
the truck is a > sign= or whether the trailer and/or deck constitute a building or structure requiring
a permit or affecting the potential issuance of a certificate of occupancy. Participation on these
issues of interpretation of the bylaws in an appeal brought by another is not the sort of challenge
to the wisdom of the ZBA= s decision precluded by Rossetti v Chittenden Co. Transportation
Authority, 165 Vt. 61, 66 (1996) and Sabourin v. Town of Essex, 146 Vt. 419, 420 (1985).
Appellant= s Motion to Dismiss the Town as a Party is DENIED.
Motions for Partial Summary Judgment
The following facts are undisputed unless otherwise noted. Appellee Lorraine Brown received a
zoning permit on March 14, 2002, approving of her costume business (> Fabian= s Costume
Rental= ) as a home occupation, in 25% of an accessory building to be used for A the greeting of
customers, picking out and picking up rental costumes.@ The permit also approved a three-square
foot sign for the home occupation, to be flush mounted to the principal building, and approved
the construction of a 72 -foot by 182 -foot open deck on the first floor of the accessory
building. The associated diagram and notations submitted as part of the application stated A the
rest of the downstairs [of the barn] for my personal sewing room and the upstairs used for
storage of personal collection of vintage attire.@ A notation on the revised application dated
February 28, 2002, included in the 25% of the building proposed for the home occupation A to
include a sewing machine for repair.@ This permit was not appealed and became final. It may be
enforced according to its terms. See Town of Bennington v. Hanson-Walbridge Funeral Home,
Inc., 139 Vt. 288, 293 (1981); In re Appeal of Tucker, Docket No. 99-399 (Vt. Supreme Ct.,
Mar. 10, 2000) (three-justice panel).
On March 17, 2003, Appellant filed a > complaint of zoning violation= with the zoning
administrator, pursuant to sections 401(1), (6), (8), 402, 415(1) and 415 generally, and 540(A),
(B), and (C). The complaint stated as the asserted violations: A A home occupation is being
operated without a certificate of occupancy, with a sign not permitted which has been moved,
and which stores or stored goods outside the princip[al] building, therefore not wholly within. A
truck is being used as a > sign.= The main complaint is section 540(A) together with other sections
cited above.@ The section of the complaint form headed > Investigation Report by the
Administrative Officer,= including places for the > action taken= on the complaint and the > final
disposition and date,= remain blank.
On April 8, 2003, Appellant appealed to the ZBA from the temporary Zoning Administrative
Officer= s failure to act on his March 17, 2003 complaint, referring to the failure to act and that
Appellees were operating a home occupation without a certificate of occupancy. On May 7,
2003, the temporary Zoning Administrative Officer signed the Certificate of Occupancy, stating
in the > Comments= section that A [a]ll potential violations have been corrected.@ The Certificate
of Occupancy was with the Town Clerk on May 20, 2003, after which Appellant appealed the
issuance of the Certificate of Occupancy to the ZBA.
The ZBA held a hearing on June 17, 2003, and issued its decision in writing dated July 21, 2003.
In its initial paragraph the decision refers to the appeal as having been from the acting Zoning
Administrative Officer= s A failure to act on a complaint of zoning violation@ on Appellees=
property. The ZBA decision concluded that the Certificate of Occupancy had not been issued in a
timely manner, but that it was not void, and upheld the grant of the certificate of occupancy, but
did not mention the temporary Zoning Administrative Officer= s response or lack thereof to
Appellant= s March 17, 2003 complaint of zoning violation. If the temporary Zoning
Administrative Officer= s comment on the Certificate of Occupancy was a de facto response to
Appellant= s complaint, Appellant was also entitled to appeal that determination. Appellant
appealed the ZBA decision to this Court in the present appeal.
All the parties agree that Appellant= s Question 6, relating to the Certificate of Occupancy,
remains in this appeal.
Appellant is correct that Questions 1 through 5 also remain in the appeal, as they relate to
whether the temporary Zoning Administrative Officer should have investigated or did investigate
the claimed zoning violations, whether Appellees are in violation, and whether any action should
be taken by the Town. A zoning administrator= s failure to take a requested action itself is a >
decision or act= of the zoning administrator that is appealable under 24 V.S.A. ' 4464, otherwise,
that section of ' 4472(a) referring to failures to act would be surplusage. While, if a violation
were to be determined, the nature of the Town= s remedy is discretionary, Appellant is entitled to
a determination from the zoning administrator that there is or is not a violation, which in turn
could be appealed to the ZBA. If the ZBA on appeal were to determine that a violation exists,
then an interested party would have grounds to take action under 24 V.S.A. ' 4470(c), even if the
Town declined to do so under ' 4444 or ' 4445.
The Town and Appellees are correct that the permit became final and cannot now be challenged,
but the first five questions do not seek to challenge the permit; rather, they seek to examine
whether Appellees are in conformance with their permit as well as with any self-executing
provisions of the Zoning Bylaws. On the other hand, Questions 7 and 8 are either unrelated
questions of law seeking an impermissible advisory opinion from the Court, or they relate to the
circumstances of whether Appellees= unappealed permit should have been issued, which cannot
be raised in this proceeding. 24 V.S.A. ' 4472. To the extent they may in some way relate to the
question of whether Appellees are in violation of their permit or of the Bylaws, those questions
are subsumed under Question 4.
Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED that the Town= s
and Appellees= Motions for Summary Judgment are GRANTED in Part, in that Questions 7 and
8 are dismissed from the appeal, but are otherwise DENIED, in that Questions 1, 2, 3, 4, 5, and 6
remain in the appeal. We will hold a telephone conference on March 22, 2004 to discuss setting
the matter for trial (see enclosed notice).
Done at Barre, Vermont, this 27th day of February, 2004.
___________________
Merideth Wright
Environmental Judge
Footnotes