Lonie Parker DBA Porky's Bkyd BBQ SP & NOV - Decision on Motion ( 2021 )

STATE OF VERMONT
SUPERIOR COURT ENVIRONMENTAL DIVISION
Docket No. 6-1-20 Vtec
Lonie Parker DBA Porky's Bkyd BBQ SP &
NOV DECISION ON MOTION
Rita Booska (Neighbor) appeals two decisions issued by the Town of New Haven
Development Review Board (DRB) to Lonie Parker d/b/a Porky’s Backyard BBQ (Applicant),
located at 7404 Ethan Allen Highway in New Haven, Vermont (the Property). In a decision on
Applicant’s motion to dismiss or for summary judgment on November 17, 2020 (2020 Decision),
this Court resolved the sole question relevant to Neighbor’s appeal of DRB decision No. 2019DRB-
07-SP (Site Plan Appeal) by answering her Question 16 in the negative concluding that the site
plan clarifications and modifications sought by Applicant need not “satisfy any of the exceptions
to the permit finality requirements as required by” the Stowe Club Highlands test. See Statement
of Questions; In re Lonie Parker DBA Porky’s Bkyd BBQ SP & NOV, No. 6-1-20 Vtec, slip op. at 26–
31 (Vt. Super. Ct. Envtl. Div. Nov. 17, 2020) (Walsh, J.) (deciding on summary judgment).
In the same decision, this Court addressed Neighbor’s Questions regarding DRB decision
No. 2019DRB-09-AP, which concerned a Notice of Violation (NOV) issued by the New Haven
Zoning Administrator (NOV Appeal). We dismissed Neighbor’s Questions 1–5, 14, and 15 for lack
of subject matter jurisdiction. Id. at 31. We answered Question 9 in the affirmative concluding
that uses of Applicant’s pavilion past 9:00 PM constitute “events,” and answered Questions 10–
13 in the negative as follows: Uses of the pavilion that do not continue past 9:00 PM do not
constitute “events.” Interpreting the term “events” does not violate the ‘Stowe Club Highlands’
test, and Applicant has not exceeded 8 “events” per month. Id. Remaining before the Court are
Neighbor’s Questions 6–8, which are part of the NOV appeal.
Pursuant to V.R.C.P. 56(f), the 2020 Decision notified the parties that the Court was
inclined to grant summary judgment to Neighbor, the nonmovant, on Questions 6–8. Id.; see
V.R.C.P. 56(f); Mahan Conditional Use Application, No. 86-8-14 Vtec, slip op. at 8–9 (Vt. Super.
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Ct, Envtl. Div. Feb. 19, 2015) (Walsh, J.) (giving parties notice of the Court’s intent to grant
summary judgment to a nonmovant and opportunity to respond). The parties were given 30 days
to respond with supplemental evidentiary material and briefing in accordance with V.R.C.P. 56,
and the Court has not received any additional filings to date. See In re Lonie Parker DBA Porky’s
Bkyd BBQ, No. 6-1-20 Vtec at 31 (Nov. 17, 2020). Thus, Questions 6–8 are once again before the
Court and we consider whether summary judgment is warranted.
Legal Standard
To prevail on a motion for summary judgment, the moving party must demonstrate “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 here through V.R.E.C.P. 5(a)(2). When considering a
motion for summary judgment, the nonmoving party receives the benefit of all reasonable
doubts and inferences. Robertson v. Mylan Labs., Inc., 2004 VT 15, ¶ 15, 176 Vt. 356. In
determining whether there is any dispute over a material fact, “we accept as true allegations
made in opposition to the motion for summary judgment, so long as they are supported by
affidavits or other evidentiary material.” White v. Quechee Lakes Landowners’ Ass’n, Inc., 170
Vt. 25, 28 (1999) (citation omitted); V.R.C.P. 56(c)(1)(A). Pursuant to V.R.C.P. 56(f), the Court may
grant summary judgment for a nonmovant “[a]fter giving notice and a reasonable opportunity to
respond.” V.R.C.P. 56(f)(1).
Factual Background
We recite the following facts, which we understand to be undisputed unless otherwise
noted, based on the record now before us and for the sole purpose of deciding the pending
motion.1 The following are not specific factual findings with relevance outside of this summary
judgment decision. See Blake v. Nationwide Ins. Co., 2006 VT 48, ¶ 21, 180 Vt. 14 (citing Fritzeen
v. Trudell Consulting Eng’rs, Inc., 170 Vt. 632, 633 (2000) (mem.)).
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Apart from ¶¶ 4–5 below, these facts are carried over from the 2020 Decision. See In re Lonie Parker DBA
Porky’s Bkyd BBQ, No. 6-1-20 Vtec at 4–7 (Nov. 17, 2020). Some facts which are no longer relevant have been
removed.
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1. The DRB approved Site Plan Application No. 2018DRB-08-SP (2018 Site Plan Approval), with
conditions, for 7404 Ethan Allen Highway (the Property) on August 20, 2018. The Property is
located in the Highway Commercial District.
2. On February 7, 2019 Applicant applied to the DRB for amendments to the 2018 Site Plan
Approval to construct a 40’ x 60’ outdoor pavilion and other improvements on the Property.
3. On April 15, 2019, the DRB approved the amended site plan application with conditions
(2019 Site Plan Approval). See In re: Jim Bourne, property owner and Lonie Parker dba Porky’s
Backyard Barbecue, No. 2019-DRB-02-SP, Findings and Decision (Town of New Haven Dev.
Rev. Bd. Apr. 15, 2019) [hereinafter “2019 Site Plan Approval”] The 2019 Site Plan Approval
was not appealed.
4. On May 1, 2019, Applicant received a zoning permit for the improvements specified in the
2019 Site Plan Approval.
5. After the 2019 Site Plan Approval, Applicant proceeded to build an outdoor pavilion on the
Property. See Statement of Undisputed Material Facts ¶ 5, filed Apr. 24, 2020.
6. The 2019 Site Plan Approval includes conditions prescribing the appropriate construction of
the pavilion; specifying that no liquor shall be served outdoors; and requiring compliance with
local, State, and Federal permits.
7. Applicant states that it began using the outdoor pavilion in July 2019. Statement of
Undisputed Material Facts ¶ 6. Neighbor denies the statement, citing lack of information,
but also appears to argue that Applicant was using the pavilion as of July 23, 2019 and beyond.
See Response to Statement of Undisputed Material Facts ¶¶ 6–7, filed June 3, 2020;
Opposition to Appellee’s Motion to Dismiss or for Summary Judgment at 8, filed May 29,
2020.
8. On July 23, 2019, the New Haven Zoning Administrator (ZA) notified Applicant that a
Certificate of Occupancy (CO) was needed for the property, and that Applicant was required
to comply with conditions of the DRB’s 2019 Site Plan Approval in order to receive a CO.
9. On August 6, 2019, Applicant filed a request to amend or clarify the 2019 Site Plan Approval
with the DRB, seeking permission to serve alcohol outside in the pavilion. See August 6, 2019
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Application to Development Review Board, attached to Motion to Dismiss or for Summary
Judgment [hereinafter “Amendment Application”].
10. While the site plan amendment/clarification was pending, the ZA issued an NOV to Applicant
on August 23, 2019. See Notice of Violation at 1, attached to Applicant’s Motion to Dismiss
or for Summary Judgment [hereinafter “NOV”]. The NOV notified Applicant of three alleged
violations: operating the outdoor pavilion without a CO, service of liquor in the pavilion, and
events in excess of eight per month.
11. Applicant appealed the NOV to the DRB on September 4, 2019. Applicant sought to appeal
(1) the use of the outdoor pavilion without a CO, (2) the service of liquor in the outdoor
pavilion, and (3) argued that the event limit of eight had not been exceeded. See September
3, 2019 Application to Development Review Board, attached to Motion to Dismiss or for
Summary Judgment. Applicant served liquor at the pavilion before receiving the NOV. See
id.
12. On December 16, 2019, the DRB issued the Amended Site Plan Approval granting Applicant’s
requests. See In re: Lonie Parker dba Porky’s Backyard Barbecue, No. 2019-DRB-07-SP,
Findings and Decision (Town of New Haven Dev. Rev. Bd. Dec. 16, 2019) [hereinafter
“Amended Site Plan Approval”]. The Amended Site Plan Approval directed Applicant to
obtain a CO prior to reopening of the pavilion in May 2020 and concluded that all findings
recorded in the decision were to be included as conditions in granting the approval.
13. Also on December 16, 2019, the DRB issued its decision on Applicant’s appeal of the NOV.
See In re: Lonie Parker dba Porky’s Backyard Barbecue, No. 2019-DRB-09-AP, Findings and
Decision (Town of New Haven Dev. Rev. Bd. Dec. 16, 2019) [hereinafter “NOV Decision”]. The
NOV Decision stated that (1) a CO, to be issued if all conditions of the 2019 Site Plan Approval
and Amended Site Plan Approval are met, must be obtained prior to any future use of the
pavilion; (2) Applicants may serve liquor in the pavilion; and (3) the term “event” as used in
Condition 2 of the 2019 Site Plan Approval means any activity extending beyond 9:00 pm.
14. Neighbor timely filed an appeal to this Court on January 31, 2020. The Notice of Appeal
challenges both the Amended Site Plan Approval and the NOV Decision.
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15. On February 14, 2020, Applicant received a CO for the 60’ x 40’ outdoor pavilion on the
Property, which approved the development as compliant with the 2019 Site Plan Approval
and the Amended Site Plan Approval. The CO approved use of the pavilion after May 1, 2020.
Neighbors appealed this CO to the DRB.
16. On May 21, 2020, the DRB issued a decision affirming the issuance of a CO to Applicant for
the Property.
17. On May 27, 2020, Neighbor appealed the DRB’s decision regarding the CO to this Court. The
CO appeal is not part of this proceeding.
Discussion
This decision follows our partial resolution of Applicant’s motion for dismissal or summary
judgment as to each of Neighbor’s 16 questions. See In re Lonie Parker DBA Porky’s Bkyd BBQ,
No. 6-1-20 Vtec (Nov. 17, 2020). Remaining before the Court are Questions 6, 7, and 8 in the
NOV appeal. Applicant’s motion originally sought the dismissal of Question 8 and argued that all
three Questions were moot. We concluded otherwise and observed that the undisputed facts
may support summary judgment in Neighbor’s favor on each of the three questions. Id. at 14–
18.
As we explained in the 2020 Decision, the NOV appeal concerns only whether there has
been a violation of the Town of New Haven Zoning Bylaws (Bylaws) or the terms of Applicant’s
2019 Site Plan Approval, as alleged in the NOV. We now consider whether the undisputed facts
show that Neighbor is entitled to judgment as a matter of law with respect to the issues raised
in Questions 6, 7, and 8. See V.R.C.P. 56(f)(1).
I. Neighbor’s Questions 6 and 7
. Neighbor’s Questions 6 and 7 ask whether Applicant failed to obtain a Certificate of
Occupancy (CO) prior to operating the pavilion and whether Applicant violated § 320 of the
Town of New Haven Bylaws (bylaws) by operating the pavilion without a CO. See Statement of
Questions. The NOV alleges that Applicant violated the Bylaws by using the pavilion without a
CO. See NOV at 1.
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In its motion to dismiss or for summary judgment, Applicant asserted that Questions 6
and 7 are moot because Applicant eventually obtained a CO and thus there is no ongoing
violation. In the 2020 Decision, we recognized that Applicant took steps to obtain a CO and
thereby curb the alleged violation, however we explained that “remedial acts do not make . . .
past zoning transgression[s] evaporate.” In re Lonie Parker DBA Porky’s Bkyd BBQ, No. 6-1-20
Vtec at 14 (Nov. 17, 2020) (quoting In re Cote Notice of Violation, No. 165-8-07 Vtec, slip op. at
3 (Vt. Envtl. Ct. Dec. 05, 2007) (Durkin, J.)). The two issues raised by Questions 6 and 7 remain:
whether Applicant operated the pavilion before obtaining a CO, and whether Applicant
committed a violation by operating the pavilion without a CO.
As to the first issue, the record before us shows that Applicant received approval for its
pavilion on April 15, 2019, when the DRB approved the 2019 Site Plan. According to Applicant’s
own statement of undisputed facts, it began using the pavilion in July 2019. Applicant received
an NOV, which stated that a CO was required, on August 23, 2019. The record also shows that
Applicant did not receive a CO until February 2020. We therefore conclude that Applicant used
the outdoor pavilion before receiving a CO.2
As to the second issue, the Bylaws state that use or occupancy of any structure is unlawful
“unless a Certificate of Occupancy has been issued therefore by the Administrative Officer stating
that the proposed use of the land or structure conforms to the provisions of these regulations.”
Bylaws § 320. A “structure” is defined by the Bylaws as “anything constructed, erected, or placed
on property, the use of which requires location on the ground, or attachment to something
located on the ground.” Bylaws § 130. The undisputed facts show that the outdoor pavilion was
built on the Property, therefore it falls within the definition of a structure. See id. Applicant was
required under § 320 to obtain a CO prior to commencing operations, and it is undisputed that
the pavilion was used before the CO was issued on February 14, 2020. Thus, Applicant committed
a violation. See Bylaws § 320.
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In Applicant’s response to interrogatories, Applicant details numerous functions, from to August 23, 2019
until October 2, 2019, that were held at the outdoor pavilion. See Applicant’s Answers to Neighbor’s Interrogatories
and Requests to Produce at 3–5, attached to Opposition to Motion to Dismiss or for Summary Judgment.
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Because the record and the undisputed facts show that Applicant began operating the
pavilion before receiving a CO, in contravention of the Bylaws, we conclude that Neighbor is
entitled to summary judgment on Questions 6 and 7. See V.R.C.P. 56(a); V.R.C.P. 56(f)(1). We
answer both Questions in the affirmative. See Statement of Questions.
II. Neighbor’s Question 8
Neighbor’s Question 8 asks: “Whether [Applicant] violated Finding 7, p. 3 and /Condition
[sic] l, p. 4 of the April 15, 2019 Amended Site Plan by serving liquor in connection with the
operation of the pavilion.” Statement of Questions.
Applicant previously argued (1) that this Court lacks subject matter jurisdiction over
Question 8, (2) that Applicant possessed all necessary State liquor permits, and (3) that the
Question is moot because the DRB subsequently approved the service of liquor at the pavilion.
This Court’s 2020 Decision concluded otherwise, explaining that the question whether Applicant
violated a permit condition regarding service of liquor is distinct from the question whether
Applicant complied with State liquor laws, and furthermore that a subsequent DRB approval does
not eliminate past violations. See In re Lonie Parker DBA Porky’s Bkyd BBQ, No. 6-1-20 Vtec at
16–17 (Nov. 17, 2020).
Finding No. 7 of the 2019 Site Plan Approval incorporates the conditions already in effect
from the 2018 Site Plan Approval, including a condition on liquor: “[f]or some events . . .
[Applicant] will have outdoor consumption of beer/wine. There will be no liquor served.” See
2019 Site Plan Approval at 3.3 The 2019 Site Plan Approval was never appealed, and Applicant
was bound by its terms. See 24 V.S.A. § 4472(d); see also In re Lonie Parker DBA Porky’s Bkyd
BBQ, No. 6-1-20 Vtec at 17 (Nov. 17, 2020). The question remains whether Applicant violated
the terms of its site plan permit by serving liquor at the pavilion.
The undisputed facts show that Applicant served liquor at the pavilion prior to receiving
the NOV, and prior to the DRB’s adjustment of the condition on liquor. As the condition
prohibiting liquor was in effect when Applicant served liquor, we conclude that Applicant violated
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Condition 1 of the approval also states: “All findings as recorded in . . . this decision are included as
conditions in the granting of this approval.” 2019 Site Plan Approval at 4.
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the terms of the 2019 Site Plan Approval. For the reasons above, we conclude that Neighbor is
entitled to summary judgment on Question 8, and we answer the Question in the affirmative.
See V.R.C.P. 56(a); V.R.C.P. 56(f)(1); Statement of Questions.
Conclusion
For the foregoing reasons, we GRANT summary judgment to Neighbor on Questions 6,
7, and 8. See V.R.C.P. 56(a); V.R.C.P. 56(f)(1). All three Questions are answered in the
affirmative, as follows: Applicant violated Bylaws § 320 by operating the pavilion without a CO
(Questions 6 and 7) and served liquor at the pavilion in violation of the 2019 Site Plan Approval
(Question 8). This concludes current proceedings before the Court.
A Judgment Order is issued concurrently with this decision.
Electronically Signed: 2/11/2021 9:41 AM pursuant to V.R.E.F. 9(d).
Thomas G. Walsh, Judge
Superior Court, Environmental Division
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