Town of South Hero v. Zlotoff Foundation, Inc Air Development Inc., - Decision on Motion ( 2020 )

VERMONT SUPERIOR COURT
Environmental Division Docket No. 17-2-20 Vtec
32 Cherry St, 2nd Floor, Suite 303,
Burlington, VT 05401
802-951-1740
www.vermontjudiciary.org
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Town of South Hero,
Plaintiff, │
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v. │
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Zlotoff Foundation, Inc.; AIR Development, Inc.,
Defendants. │
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DECISION ON MOTION
The Town of South Hero (“Town”) brings this municipal enforcement action against AIR
Development, LLC (“AIR”) and Zlotoff Foundation, Inc. (“the Foundation”), seeking fines and
injunctive relief to address certain alleged zoning violations. The Town issued two Notices of
Violation (“NOVs”) describing the alleged violations, and the Foundation has filed an appeal of
the NOVs which is also pending before this Court (Docket No. 69-6-19 Vtec). The NOV appeal has
been coordinated with this enforcement action. This Court’s recent decision on summary
judgment in the NOV appeal dismissed the NOV regarding the Foundation’s Garage (“Garage
NOV”).1 See Zlotoff Foundation, Inc. NOV (2), No. 69-6-19 Vtec, slip op. at 23 (Vt. Super. Ct. Envtl.
Div. Sept. 24, 2020) (Durkin, J.). Therefore, the remaining issues in both dockets relate to
violations alleged in the NOV directed at the Arnold Zlotoff Tool Museum (“Museum NOV”),
which is run by the Foundation on property owned by AIR. See Id. at 25 (concluding that the
Foundation has statutory standing under 24 V.S.A. § 4465(b)(3) to maintain its appeal of the
Museum NOV and a genuine dispute of material fact exists with respect to the Museum’s
compliance with existing permit requirements).
1
In that decision, we concluded that the Garage qualified as an independent structure under the South Hero
Development Regulations and was therefore authorized by existing municipal approvals. See id.
-1-
Decision on Motion for Summary Judgment
Town of S. Hero v. AIR Development, LLC et al, No. 17-2-20 Vtec slip op. (Vt. Super. Ct. Envtl. Div. Dec. 31, 2020) (Durkin, J.).
Presently before the Court is a motion by AIR and the Foundation (“Defendants”) to
dismiss the Town’s First Amended Complaint for Enforcement (“Amended Complaint”). In an
Entry Order on October 5, 2020, we notified the parties that the motion will be treated as a
motion for summary judgment pursuant to V.C.R.P. 12(b) and V.R.C.P. 56. See Town of South
Hero v. AIR Development, LLC, No. 17-2-10 Vtec, slip op. at 2 (Vt. Super. Ct. Envtl. Div. Oct. 5,
2020) (Durkin, J.) (converting Defendant’s motion into one for summary judgment). The parties
have had an opportunity to submit any supplemental materials pertinent to summary judgment
under Rule 56, and the motion is now ready for our consideration.
The Foundation and Air Development are represented by Alexander J. LaRosa, Esq. The
Town is represented by William Andrew MacIlwaine, Esq.
Standard of Review
We will grant summary judgment “if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” V.R.C.P. 56(a),
applicable through V.R.E.C.P. 5(a)(2). We accept as true all the nonmovant’s allegations of fact,
as long as they are supported by affidavits or other admissible evidence, and we give the
nonmovant the benefit of all reasonable doubts and inferences. White v. Quechee Lakes
Landowners’ Ass’n, Inc., 170 Vt. 25, 28 (1999) (citation omitted); Robertson v. Mylan Labs., Inc.,
2004 VT 15, ¶ 15, 176 Vt. 356. With these standards in mind, we proceed with our review of the
pending motion.
Factual Background
We recite the following facts, which we understand to be undisputed unless otherwise
noted, based upon the record before us and solely for the purposes of deciding the pending
summary judgment motion. These recitations do not constitute factual findings, since factual
findings cannot occur until after the Court has completed a trial. Fritzeen v. Trudell Consulting
Eng’rs, Inc., 170 Vt. 632, 633 (2000) (mem.); see also Blake v. Nationwide Ins. Co., 2006 VT 48,
¶ 21, 180 Vt. 14.
-2-
Decision on Motion for Summary Judgment
Town of S. Hero v. AIR Development, LLC et al, No. 17-2-20 Vtec slip op. (Vt. Super. Ct. Envtl. Div. Dec. 31, 2020) (Durkin, J.).
1. The Zlotoff Foundation (“the Foundation”) is a 501(c)(3) non-profit corporation registered
in Michigan, with a principal place of business at 280 Daines Street, Third Floor, Birmingham,
Michigan. Paul Zlotoff is the Foundation’s Chairman.
2. AIR Development, LLC (“AIR”) is a manager-managed limited liability company, managed
by Paul Zlotoff. AIR is also registered in Michigan, with the same principal place of business as
the Foundation.
3. The Foundation operates a museum in a 2-story renovated barn (“the Museum”), where
it displays a collection of early American tools called the Arnold Zlotoff Tool Collection (“Tool
Collection”). The first floor houses a vehicle collection (the “Z Motor Sports Collection”) and the
second floor displays the Tool Collection.
4. The Museum is located on property known as the Apple Island Resort in South Hero,
Vermont. The Apple Island Resort is owned by AIR. AIR leases the Museum building to the
Foundation.
5. On April 26, 2016, the Town Zoning Administrator (“ZA”) sent a notice (“2016 notice”)
addressed to AIR. The 2016 notice sought to address the use of the building on the Apple Island
Resort as an “antique tools collection, owned by Mr. Zlotoff” that is “periodically open to the
public.” See Town’s Supplemental Memorandum in Opposition to Defendant’s Motion to
Dismiss, at Pp. 3–5 filed Oct. 19, 2020 [hereinafter Town’s Supplemental Memorandum]. A copy
of the ZA’s 206 notice is labeled as Exhibit F and contained in an attachment to the Town’s
Supplemental Memorandum that is labeled “Attachment 3.”2
6. The 2016 notice stated that the Planning Commission and the Zoning Board of Adjustment
had not provided a subsequent approval to use the museum building beyond “private storage
for owner and antique tool collection housing” as permitted by an approved October 18, 2007
Site Plan Review Application #RT0711-08-02B. The ZA directed that AIR must apply for a change
2
The Town’s Attachment 3 includes an affidavit from the Foundation’s tax attorney, which introduces and contains
copies of relevant documents, labeled Exhibits A through V. The Court found this labeling scenario somewhat
difficult to decipher, especially within the recently enacted world of electronic filing. We recognize that electronic
filing, especially under the new case management system known as Odyssey, has been somewhat challenging for all
users. It would benefit the Court and its review of pending motions and any attached exhibits if parties would
separately label and file as attachments each exhibit that the party wishes the Court to review.
-3-
Decision on Motion for Summary Judgment
Town of S. Hero v. AIR Development, LLC et al, No. 17-2-20 Vtec slip op. (Vt. Super. Ct. Envtl. Div. Dec. 31, 2020) (Durkin, J.).
of use from the Zoning Board of Adjustment and a site plan review from the Planning Commission
to use the museum building for public use. Id.
7. On June 26, 2016, the ZA sent an additional notice (“2016 supplemental notice”) to AIR
warning that a Notice of Violation (“NOV”) would issue unless site plan and change in conditional
use approvals were obtained. See Town’s Supplemental Memorandum, at Attachment 3,
Exhibit G.
8. On August 3, 2016, AIR applied for an amendment to its conditional use and site plan
approvals. The Application stated the proposed use was a “Tool Museum.” The Application was
approved on November 30, 2016. See Town’s Supplemental Memorandum, at Exhibit H.
9. On February 6, 2019, the ZA sent a “warning notice” (“2019 warning notice”) to AIR at the
Michigan address shared by AIR and the Foundation. See Defendants’ Motion to Dismiss First
Amended Complaint for Enforcement, filed Mar. 24, 2020 [hereinafter Defendant’s Motion to
Dismiss]. A copy of the 2019 warning notice, labeled Exhibit A, was attached to Defendants’
Motion to Dismiss.
10. The 2019 warning notice notified AIR Development that “the Z Motor Sports Collection is
in violation of Table 2.2 of the South Hero Development Regulations” and AIR “has the
opportunity to cure the violation by applying for conditional use and site plan review with the
DRB.” See Town’s Supplemental Memorandum, Exhibit 14.3
11. On February 26, 2019, the ZA sent a NOV to “Zlotoff Foundation c/o AIR Development.”
The NOV was sent to the Michigan address shared by AIR and the Foundation. See Town’s
Supplemental Memorandum, at Attachment 3, Exhibit C.
12. This NOV concerned the Museum (“Museum NOV”) and alleged that existing conditional
use and site plan approvals were for the second floor of the Museum building only. The NOV
further alleged that publicly displaying the car collection on the first floor constituted an
unauthorized enlargement of the original conditional use approval.
3
The Exhibit A filed with Defendants’ Motion to Dismiss and the Exhibit 14 filed with the Town’s Supplemental
Memorandum appear to be separate but identical copies of the 2019 warning notice.
-4-
Decision on Motion for Summary Judgment
Town of S. Hero v. AIR Development, LLC et al, No. 17-2-20 Vtec slip op. (Vt. Super. Ct. Envtl. Div. Dec. 31, 2020) (Durkin, J.).
13. The NOV stated that “Z Motor Sports was given the opportunity to cure the violation” by
applying for additional review “but did not respond by the February 14, 2019 deadline noted in
the warning letter” sent on February 6. The NOV also advised: “You have the right to appeal this
decision with the Development Review Board.”
14. On March 12, 2019, the Foundation appealed the NOV to the Town of South Hero
Development Review Board (“DRB”).
15. On May 29, 2019, the DRB upheld the NOV issued by the ZA and denied the Foundation’s
appeal.
16. The Foundation timely appealed the DRB’s decision to this Court on June 19, 2019.
17. On February 26, 2020, the ZA sent a “supplemental warning notice” (“2020 warning
notice”) to AIR at the Michigan address shared by AIR and the Foundation. See Town’s
Supplemental Memorandum, Exhibit 3. The 2020 warning notice stated that the museum
remained in violation of South Hero Development Regulations and noted that the “violation must
be abated within 7 days of this notice. No additional warning will be sent for a violation occurring
after seven days.” Id.
18. Also, on February 26, 2020, the Town initiated this enforcement proceeding against
Defendants.
Discussion
Defendants argue that the Town’s Amended Complaint should be dismissed for two
reasons: (1) the Museum NOV is void as a matter of law; and (2) the Museum NOV represents an
illegal collateral attack on a properly permitted use. We have already addressed Defendants’
second argument in the context of the Foundation’s NOV appeal. See Zlotoff Foundation, No.
69-6-19 Vtec at 11–12 (Sept. 24, 2020). While a town may not collaterally attack the terms of a
final and binding permit, a town is free to argue “that the bounds of permitted use have been
exceeded.” See In re Barry, 2011 VT 7, ¶ 19, 189 Vt. 183 (quoting Hanson-Walbridge Funeral
Home, Inc., 139 Vt. 288, 292 (1981)). The Town alleges, by way of the Museum NOV, that
activities at the Museum have exceeded the scope of authorizations in the existing permits. We
conclude that this municipal enforcement action is not based upon an impermissible collateral
-5-
Decision on Motion for Summary Judgment
Town of S. Hero v. AIR Development, LLC et al, No. 17-2-20 Vtec slip op. (Vt. Super. Ct. Envtl. Div. Dec. 31, 2020) (Durkin, J.).
attack; the Foundation’s ongoing NOV appeal will determine whether the Town’s allegations
have an adequate factual foundation.
In this proceeding, we are left with Defendants’ contention that the Museum NOV is void
as a matter of law. Defendants argue that the Museum NOV is void because it is deficient under
24 V.S.A. § 4451; it is fundamentally misleading; and it provides insufficient notice under
principles of due process. Before going further, we must address the Town’s assertion that both
Defendants are barred from raising these arguments.
I. Whether Defendants are barred from arguing insufficient notice.
The Town suggests that the Foundation waived any defense regarding the sufficiency of
notice because it did not raise the issue when it appealed the NOV to the DRB and this Court.
The Town also argues that AIR is barred from raising a notice defense because it did not appeal
the NOV or participate in the Foundation’s appeal. We disagree. The Town’s position regarding
the Foundation conflates this enforcement proceeding, an original civil action in the
Environmental Division, with the ongoing NOV appeal (Docket No. 69-6-19 Vtec). See V.R.E.C.P.
3(5). Here, there is no underlying proceeding where the Foundation could have raised its
defenses prior to its participation in this enforcement action.
We must also note the distinction between a challenge to the merits of the alleged
violation and a challenge to the sufficiency of notice under statutory or constitutional
requirements. If an alleged offender fails to appeal an NOV, that offender is barred from
contesting the merits of the alleged violation in any other proceeding – including a subsequently-
filed enforcement action. See 24 V.S.A. § 4472; Appeal of Newton Enterprises, 167 Vt. 459, 462–
63 (1998) (appellee did not appeal NOVs and therefore could not challenge the existence of a
violation in any subsequent proceeding). Yet even then, the alleged offender may raise statutory
or constitutional defects in a notice. See Town of Hinesburg v. Dunkling, 167 Vt. 514, 521–24
(1998) (considering the adequacy of notice before concluding that a landowner “was barred from
directly or indirectly attacking the [zoning board’s] decision” in an enforcement action); Town of
Chester v. Carrara, No. 60-5-15 Vtec, slip op. at 2–3 (Vt. Super. Ct. Envtl. Div. Oct. 19, 2015)
(Walsh, J.) (considering a constitutional challenge to the adequacy of notice); see also Town of
-6-
Decision on Motion for Summary Judgment
Town of S. Hero v. AIR Development, LLC et al, No. 17-2-20 Vtec slip op. (Vt. Super. Ct. Envtl. Div. Dec. 31, 2020) (Durkin, J.).
Sharon v. Radicioni, No. 56-6-18 Vtec, slip op. at 2–3 (Vt. Super. Ct. Envtl. Div. Oct. 19, 2018)
(Durkin, J.) (concluding that notice was proper under § 4451(a) and therefore the Town could
seek judgment against the alleged offender). Thus, regardless of the status of the NOV appeal,
we conclude that both Defendants are entitled to challenge the sufficiency of notice on statutory
or constitutional grounds.
II. Whether notice was sufficient pursuant to 24 V.S.A. § 4451(a).
Defendants also contend that both the 2019 warning notice and the Museum NOV are
deficient and misleading pursuant to 24 V.S.A. § 4451(a). Defendants argue that the 2019
warning notice did not contain (1) facts that the support the finding of a violation; (2) the action
that the town intended to take; (3) information on how to properly challenge the notice; and
(4) were improperly addressed to AIR. See Defendant’s Motion to Dismiss at 9–10. Additionally,
Defendants argue the Museum NOV was insufficient because it was addressed to “Zlotoff
Foundation c/o AIR Development” and did not identify the appropriate alleged offender. The
Town counters that, if read as a whole, the warning notices and NOV are sufficiently clear for any
reasonable person to understand. In addressing sufficiently of notice, we look first to the
statutory requirements for such a notice.
Pursuant to 24 V.S.A. § 4451(a), a town may not bring an action seeking monetary
penalties for zoning violations “unless the alleged offender has had at least seven days’ warning
notice by certified mail.” Here, § 4451(a) provides that:
(1) The seven-day warning notice shall state that a violation exists, that the alleged
offender has an opportunity to cure the violation within the seven days, and that the
alleged offender will not be entitled to an additional warning notice for a violation
occurring after the seven days.
(2) A notice of violation issued under this chapter also shall state:
(A) the bylaw or municipal land use permit condition alleged to have been
violated;
(B) the facts giving rise to the alleged violation;
(C) to whom appeal may be taken and the period of time for taking an appeal; and
(D) that failure to file an appeal within that period will render the notice of
violation the final decision on the violation addressed in the notice.
-7-
Decision on Motion for Summary Judgment
Town of S. Hero v. AIR Development, LLC et al, No. 17-2-20 Vtec slip op. (Vt. Super. Ct. Envtl. Div. Dec. 31, 2020) (Durkin, J.).
Id.
While the typical and recommended practice is to issue an NOV including all the
information required by § 4451(a), the Town in this case took a different approach. The Town
first sent the 2019 warning notice to AIR, stating that the display of the “Z Motor Sports
Collection” was in violation of the South Hero Development Regulations, that the violation could
be cured by filing an application with the DRB within seven days, and that a formal NOV would
follow if there was no attempt to cure.4 When the Town received no response, it issued the
Museum NOV to the Foundation. The Museum NOV described the alleged violation, noted the
relevant municipal regulations, and provided information on the appeal process. Thereafter, the
Town issued a 2020 warning notice that included an additional opportunity to cure in stating that
the “violation must be abated within 7 days of this notice” and initiated this enforcement action.
Defendants contend that both the 2019 warning notice and the Museum NOV itself are
deficient, because neither provide all the necessary information pursuant to 24 V.S.A. § 4451(a).
The Town urges us to make certain inferences and to read the two notices together; in so doing,
the Town asserts that the statutory requirements are satisfied.
Defendants correctly note that alleged offenders are entitled to an opportunity to cure
before a town can seek the financial penalties in an enforcement proceeding. See 24 V.S.A.
§ 4451(a); see also, e.g., Dunkling, 167 Vt. at 526 (1998) (discussing an earlier version of the
statute, then codified as 24 V.S.A. § 4444(a)); see also In re Fennessey's 20 West Main St., LLC,
No. 14-1-10 Vtec, slip op. at 6 (Vt. Super. Ct. Envtl. Div. Aug. 19, 2011) (Wright, J.) (“[A]
municipality must provide a seven-day warning notice (notice of violation) and opportunity to
cure, before commencing an enforcement action by filing a complaint pursuant to V.R.E.C.P.
3(5).”). By curing the violation within seven days, an alleged offender can avoid any potential
4
While not statutorily required, this Court’s experience is that prosecuting municipalities will often contact alleged
zoning violators, including in writing, well in advance of serving a notice of alleged zoning violation on the alleged
offender, all in an effort to negotiate with the alleged offender and in the hopes of convincing them to voluntarily
cure the alleged violation. See e.g. Town of Fairfax v. Beliveau, No. 274-11-08 Vtec, slip op. at 2 (Vt. Super. Ct. Envtl.
Div. Mar. 30, 2012) (Wright, J.) (noting the use of warning letters prior to the issuance of a formal NOV); Town of
Westford v. Mathieu, No. 153-9-10 Vtec, slip op. at 5 (Vt. Super. Ct. Envtl. Div. June 09, 2014) (Durkin, J.) (noting
several warnings that did not constitute formal NOVs).
-8-
Decision on Motion for Summary Judgment
Town of S. Hero v. AIR Development, LLC et al, No. 17-2-20 Vtec slip op. (Vt. Super. Ct. Envtl. Div. Dec. 31, 2020) (Durkin, J.).
fines or enforcement proceedings. See Dunkling, 167 Vt. at 526; APC Property LLC dba Burlington
Bedrooms, Nos. 71-6-15 Vtec and 116-9-15 Vtec, slip op. at 3 (Vt. Super. Ct. Envtl. Div. Jan. 21,
2016) (Walsh, J.). In this case, the Town’s initial two-part method of notice, including the 2019
warning notice and Museum NOV, did not provide coherent, singular notice of the reasonable or
practical opportunity to cure the alleged violation and avoid the fines. To illustrate the problem,
we start with the alleged violation itself: the Town alleges that Defendants exceeded the bounds
of an existing conditional use approval by displaying the Z Motorsports Collection for the public
to view on the first floor of the Museum. The warning notice states in relevant part:
. . . Z Motor Sports Collection is in violation of Table 2.2 (Allowed Uses) of the
South Hero Development Regulations. Public facilities require Conditional Use
and Site Plan review by the South Hero Development Review Board. Z Motor
Sports has the opportunity to cure the violation by applying for conditional use
and site plan review with the DRB by Thursday, February 14, 2019.
Defendants’ Motion to Dismiss, Exhibit A, filed Mar. 24, 2020.
The warning notice does not describe the alleged violation or the penalties incurred if the
violation persists. Defendants could conceivably attempt to cure by applying for an amendment
to its conditional use and site plan approvals, but the notice does not provide an indication as to
what the contents of that application should be and fails to inform Defendants of all available or
alternative methods of curing.5
Under §4451(a)(1) a seven-day warning notice must “state that a violation exists [and]
that the alleged offender has an opportunity to cure.” Indeed, as an elementary and fundamental
principle of due process, a seven-day notice must reasonably apprise a defendant on the alleged
violation such that the Defendant is aware of the claimed remedial action to be taken and
afforded the opportunity to present their objections. Town of Sharon, No. 56-6-18 Vtec at 2 (Oct.
19, 2018) (citing Town of Randolph v. Estate of White, 166 Vt. 280, 283 (1997) (citation omitted)).
5
The 2019 warning notice does not inform Defendants that the violation may be cured by ceasing to operate the
museum.
-9-
Decision on Motion for Summary Judgment
Town of S. Hero v. AIR Development, LLC et al, No. 17-2-20 Vtec slip op. (Vt. Super. Ct. Envtl. Div. Dec. 31, 2020) (Durkin, J.).
Here, the subsequently issued Museum NOV provides the information necessary to apply
for the proper approvals and satisfy due process requirements, but the NOV was issued after the
time to cure had expired. The NOV states:
Prior conditional use and site plan approval . . . in Application #17-08-RT071B was
for use of the second floor of the museum barn only. . ..
Z Motor Sports’ use of the bottom floor constitutes an enlargement of the original
conditional use (per Section 303.E) and therefore requires additional conditional
use review. . .
Z Motor Sports was given the opportunity to cure the violation by applying for
conditional use and site plan review but did not respond by the February 14, 2019
deadline noted in the warning letter. . .. You are subject to fines of up to $200 per
day for as long as the violation continues . . ..
Defendants’ Motion to Dismiss, Exhibit C.
Thus, by the time Defendants had the information necessary to cure the alleged violation,
they would have already been subject to penalties. Indeed, the statutory requirements of notice
were not satisfied until the issuance of the 2020 warning notice, which provided an additional
seven days to “abate” or cure the violation. See Town’s Supplemental Memorandum, Exhibit 3.;
Dunkling, 167 Vt. at 526 (“Upon notice of a violation, the alleged offender is permitted to cure
the violation, and if cured, no penalty will be assessed.”).
However, when viewing the Museum NOV and 2020 warning notice together, we
conclude that the Town’s two notices satisfy § 4451(a), since Defendants were provided an
additional seven days to cure and the Museum NOV incorporated a reference to the Town of
South Hero Regulations, facts giving rise to the violation, appropriate steps for taking an appeal,
and the necessary notification of potential fines. See 24 V.S.A. § 4451(a) (stating that an
enforcement action can be brought after “the alleged offender has had at least seven days'
warning notice by certified mail”).
We believe one further clarification is warranted. Fines are only allowed to accrue from
the date after the 7-day warning period to cure has ended. Town of Brattleboro v. Lawrence, No.
68-6-15 Vtec, slip op. at 2 (Vt. Super. Ct. Envtl. Div. Oct. 19, 2015) (Walsh, J.) (noting that while
an NOV was issued March 10, 2015, the daily fines began counting seven days after opportunity
-10-
Decision on Motion for Summary Judgment
Town of S. Hero v. AIR Development, LLC et al, No. 17-2-20 Vtec slip op. (Vt. Super. Ct. Envtl. Div. Dec. 31, 2020) (Durkin, J.).
to cure was passed on March 17, 2015); see also Town of Calais v. Noordsij, No. 142-6-06 Vtec,
slip op at 5–6 (Vt. Envtl. Ct. Feb. 09, 2009) (Wright, J.) (stating that § 5441(a) “indicates that the
violation period commences seven days after the Notice of Violation issues”); Town of Halifax v.
LeMay, No. 64-6-18 Vtec, slip op. at 3 (Vt. Super. Ct. Envtl. Div. Jan. 16, 2019) (Walsh, J.).
Therefore, since the 7-day opportunity to cure requirement was not perfected until February 26,
2020, the fines are calculated beginning on March 5, 2020: 7 days after the 2020 warning notice
was issued.
We next address whether the notice was deficient for failure to properly address the 2019
and 2020 warning notices and NOV to the alleged offender. Defendants argue that (1) the 2019
and 2020 warning notices are addressed to AIR, which does not operate the Museum and (2) the
Museum NOV is addressed to “Zlotoff Foundation c/o AIR Development,” which is a separate
entity from AIR. Defendant contends this notice is affirmatively misleading as it deprives the
alleged offender of due process. The Town counters that the warning notices and Museum NOV,
when read as a whole, provide reasonable notice since Defendants share the same address, the
same principal officer, have a landlord-tenant relationship, and the content of the notices provide
clarifying information such that a reasonable person could identify the “person, place, or thing
at issue.” See Town’s Supplemental Memorandum at 5 (citing Chester, No. 60-5-15 Vtec at 2
(Oct. 19, 2015).
Pursuant to § 4451(a), no action may be brought unless the “alleged offender” has notice.
“In the context of a violation of a zoning ordinance, an offender is the person implicated in the
commission of the violation.” See Town of Sharon, No. 56-6-18 Vtec at 2 (Oct. 19, 2018) (declining
to limit the term “alleged offender” to the property owner). Moreover, “[n]otice need not be
technically perfect in every respect.” Chester, No. 60-5-15 Vtec at 2 (Oct. 19, 2015) (citing Town
of Randolph v. Estate of White, 166 Vt. 280, 284 (1997)). Generally, minor errors do “not render
[an] NOV so vague as to prevent a reasonable person from understanding its scope and purpose.”
Id.; see Sec'y, Vermont Agency of Natural Res. v. Irish, 169 Vt. 407, 411 (2007) (noting that notice
is sufficient if person of ordinary intelligence would understand what is prohibited).
-11-
Decision on Motion for Summary Judgment
Town of S. Hero v. AIR Development, LLC et al, No. 17-2-20 Vtec slip op. (Vt. Super. Ct. Envtl. Div. Dec. 31, 2020) (Durkin, J.).
In an analogous case, this Court concluded that an “alleged offender” was not limited to
a property-owning LLC, and therefore an enforcement action could be brought against a
defendant at their personal residence when the Defendant may use or occupy the subject
property.6 See Town of Sharon, No. 56-6-18 Vtec at 1–3 (Oct. 19, 2018). In Town of Sharon,
however, this Court noted that since the Defendant and not the LLC was named on the NOV,
naming the LLC as a party would run afoul of due process. Id. at 2–3. Here, both AIR and the
Foundation were named on the Museum NOV. Additionally, “any ambiguity in the greeting [can
be] resolved by the specific description of the alleged violation — activities that only pertained
to [the alleged offender].” Chester, No. 60-5-15 Vtec at 2–3 (Oct. 19, 2015) (noting that
defendant can be identified as the alleged offender because the NOV only pertained to
defendant’s commercial trucking business, which reinforces the identity of the intended
recipient).
The 2019 warning notice and Museum NOV refer specifically to the “Z Motor Sports
Collection” of the Museum, are addressed to the principal place of business in Michigan that both
Air and the Foundation share, address the same violation of the Table 2.2 of the South Hero
Development Regulations, and note that a public museum use requires conditional use and site
plan review by the DRB. These specific descriptions reinforce that the identity of the alleged
offender and intended recipient of the NOV. See Id. at 3.
Ultimately, while it may be the case that the Town could have addressed the NOV only to
the Foundation as the operator of the museum, the Court finds that the NOV, as it currently
exists, adequately informed both Defendants (one as the property owner and the other as the
tenant operator) that the NOV was directed at the Foundation’s use of the property and Air’s
6
In Town of Sharon, this Court noted that the Town was aware Defendant was (1) the sole listed member and
registered agent of the LLC; (2) the sole fee owner of the subject property; and (3) had previously interacted with
the Town and Selectboard regarding the property’s pending NOV. Town of Sharon, No. 56-6-18 Vtec at 3 (Oct. 19,
2018). We concluded that these facts did not serve as a factual foundation for granting a Defendant’s motion to
dismiss the Town of Sharon’s enforcement action. Id.
In the same vein, the facts that Mr. Paul Zlotoff is (1) the chairman of the Foundation, (2) manager of AIR, and
(3) previously applied for conditional use and site plan review for the Museum as “AIR” serve as factual foundation
for denying Defendant’s motion to dismiss this enforcement action.
-12-
Decision on Motion for Summary Judgment
Town of S. Hero v. AIR Development, LLC et al, No. 17-2-20 Vtec slip op. (Vt. Super. Ct. Envtl. Div. Dec. 31, 2020) (Durkin, J.).
allowance of that use on its property, and that the Town would proceed with an enforcement
action if that use did not cease.
Conclusion
For the foregoing reasons, we conclude that notice to Defendants was sufficient because
the Museum NOV and the 2020 warning notice, when read together and in context, satisfy all
notice requirements contained in § 4451(a) and the Foundation, as the alleged offender, was
adequately informed that the NOV was directed at the Foundation’s operation of the Museum.
If the violation were left unabated, the notice also provided clear warning that the Town would
proceed with an enforcement action. When viewing the presented factual representations in a
light most favorable to the Town, we conclude that Defendants’ motion for summary judgment
must be DENIED.
The Court requests that the Court Operations Manager set this matter for a remote
conference, so that the Court may discuss with the parties the scheduling of a remote trial.
Electronically signed on December 31, 2020 at Brattleboro, Vermont, pursuant to V.R.E.F. 7(d).
________________________________
Thomas S. Durkin, Superior Judge
Environmental Division
-13-
Decision on Motion for Summary Judgment
Town of S. Hero v. AIR Development, LLC et al, No. 17-2-20 Vtec slip op. (Vt. Super. Ct. Envtl. Div. Dec. 31, 2020) (Durkin, J.).