Town of Concord v. Schwag - Decision on Motion ( 2022 )

VERMONT SUPERIOR COURT
Environmental Division Docket No. 21-ENV-00045
32 Cherry St, 2nd Floor, Suite 303,
Burlington, VT 05401
802-951-1740
www.vermontjudiciary.org
Town of Concord v Schwag
ENTRY ORDER
Title: Motion for Judgment on the Pleadings
Filer: Daniel D. McCabe, attorney for Plaintiff, Town of Concord
Filed Date: October 25, 2021
No response filed
This is an enforcement action brought by the Town of Concord (“the Town”) against
Respondent Frederick Schwag for violation of the Town’s zoning bylaws. Presently before the Court
is the Town’s motion for judgment on the pleadings under V.R.C.P. 12(c).
We recite the following undisputed facts gleaned from the pleadings purely for the purpose of
deciding this motion. The following do not constitute factual findings with relevance outside of the
context of this motion. See 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.
On March 4, 2021, the Town of Concord Zoning Administrator sent copies of a notice of
zoning violation (“NOV”) by both certified mail and first-class mail to Frederick Schwag at 1393 Cold
Hill Road in Lyndonville, VT. The NOV alleged that Mr. Schwag had not cleared the burnt-out
remains of a trailer off property he owned in Concord within one year of the fire that destroyed said
trailer, in violation of the Town of Concord Zoning Bylaws (“Bylaws”), section 312. Mr. Schwag did
not appeal the NOV. The Town subsequently initiated this enforcement action before our Court,
seeking an injunction ordering removal of the structure and monetary penalties under 24 V.S.A. §§
4451–4452. The Town served the complaint in this matter by Sherriff’s deputy to the same address
to which the NOV was sent (Town Return of Service for Complaint, filed May 27, 2021).
Mr. Schwag sent a letter to the Town’s attorney and, he claims, the county Superior Court1,
that was forwarded by the Town’s attorney to this Court. By this letter, Mr. Schwag did not deny the
allegations in the Town’s complaint, but claimed that he had been unable to remedy the violation due
to illness and financial issues and requested more time to come into compliance. Mr. Schwag also
stated in his letter that he never received the NOV.
1 It is unknown whether Mr. Schwag sent the letter to the Superior Court for Essex County, in which the subject property
sits, or Caledonia County, in which Mr. Schwag resides, but it is immaterial for deciding on this motion, as we have
accepted the letter as though it were sent to our Court.
Entry Regarding Motion Page 1 of 3
Town of Concord v. Schwag, No. 21-ENV-00045 (Vt. Super. Ct. Envtl. Div. March 25, 2022) (Durkin, J.)
The Town moved for default judgment and Mr. Schwag responded to our Court in a letter
dated September 15, 2021, stating that he had made arrangements for a dumpster to be delivered to
the property as soon as it was available. We chose to treat that letter as both an answer to the
complaint and a response to the default judgment motion, and so denied the Town’s motion. See
Town of Concord v. Schwag, No. 21-ENV-00045 (Vt. Super. Ct. Envtl. Div. Sept. 15, 2021) (Durkin,
J.). The Town subsequently filed the present motion, to which Mr. Schwag has not responded.
The Town argues that after the time period established by 24 V.S.A. § 4465 for appealing the
notice of violation to the Town of Concord Zoning Board of Adjustment had passed, that NOV
became a final judgment and cannot now be attacked directly or indirectly through this proceeding.
It therefore requests that we enter judgment in its favor and schedule a hearing to determine what
penalty is due.2 Mr. Schwag requests that he be allowed to clean up the property and thereby avoid
judgment. We also consider Mr. Schwag’s contention in his first forwarded letter that he did not
receive the notice of violation in time to appeal it.
It is settled law that an appeal is the exclusive remedy available to parties who wish to contest
the act or decision of a municipal officer or body. 24 V.S.A. § 4472(d). A failure to appeal municipal
decisions, including notices of violation, binds all parties, and this Court, to the determinations reached
therein. Id.; In re Ashline, 2003 VT 30, ¶ 8, 175 Vt. 203 (citing City of S. Burlington v. Dep't of Corr.,
171 Vt. 587, 588-89 (2000)). Once a municipal decision is final and binding, parties cannot later
challenge, “either directly or indirectly,” the contents of the decision. 24 V.S.A. § 4472(d). This is the
case even where the municipal decision may be ultra vires or in error. In re Feeley Constr. Permits,
Nos. 4-1-10 Vtec, 5-1-10 Vtec, slip op. at 14 (Vt. Envtl. Ct. Jan. 3, 2011) (Wright, J.) (citing City of S.
Burlington., 171 Vt. 587, 588-89 (2000); Levy v. Town of St. Albans, 152 Vt. 139, 142 (1989)).
However, even after an NOV has become final, a respondent may still raise a lack of adequate
notice of the alleged violation as a statutory or constitutional defense to a subsequent enforcement
action. Town of S. Hero v. AIR Development, LLC, No. 17-2-20 Vtec slip op. at 6 (Vt. Super. Ct.
Envtl. Div. Dec. 31, 2020) (Durkin, J.) (citing Town of Hinesburg v. Dunkling, 167 Vt. 514, 521–24
(1998)). We must therefore determine whether the Town followed the proper notice procedures in
this case. The statute at issue, 24 V.S.A. § 4451, requires that the notice of violation be delivered by
certified mail. We have previously considered mailing a notice of violation to the last known address
for the person to whom that notice is directed to be the “proper procedure,” and to constitute actual
notice. City of South Burlington, v. Robar, No. 252-11-05 Vtec, 2006 WL 4519314 (Vt. Envtl. Ct.
Aug. 3, 2006).
Mr. Schwag has not successfully made out a defense of lack of proper notice. Mr. Schwag
does not dispute that the address to which the Town sent the NOV was his correct mailing address.
He simply points to the three unsuccessful attempts to have the certified mail copy of the letter
delivered to that address as evidence of his lack of awareness of the NOV. He avers that he was not
staying at that address at the time and was not current with his mail. (Respondent’s Letter to the
Court, filed by the Town’s attorney, Jul. 16, 2021). However, the complaint in this action was served
by hand to Mr. Schwag at the same address in May, and notices of hearings in this matter subsequently
reached him at the same address. Moreover, the copy of the NOV that the town sent by first-class
mail was never returned to sender as undeliverable, per the Town’s attorney. Finally, at a status
conference on Oct. 18, 2021, Mr. Schwag confirmed 1393 Cold Hill Road as his mailing address. Mr.
2 We understand the Town to maintain its request for injunctive relief as well, in the event that Mr. Schwag has not
completed removal of the ruined trailer by the time of a hearing.
Entry Regarding Motion Page 2 of 3
Town of Concord v. Schwag, No. 21-ENV-00045 (Vt. Super. Ct. Envtl. Div. March 25, 2022) (Durkin, J.)
Schwag’s failure to stay current with mail at a correct mailing address does not defeat the sufficiency
of the Town’s notice to him.
Because the NOV was properly served upon Respondent and not timely appealed by him, it
cannot now be collaterally attacked, and the Town is now entitled to judgment in this enforcement
action. We therefore find that Mr. Schwag did violate Bylaws § 312 by failing to either remove the
remains of a structure destroyed by fire or repair and rebuild that structure within one year of the fire.
We direct that by next Thursday, March 31, 2022, the parties advise us of the dates that they
would not be available for an evidentiary hearing during the month of April 2022 on the Town’s
request for monetary penalties and injunctive relief. The Court anticipates that such a hearing would
take no more than six hours of trial time.
The Court encourages the parties to continue their private negotiations, in the hope that,
through compromise, the parties may agree upon a recommendation to the Court of what injunctive
and monetary relief should be awarded to the Town. Failing that, the Court will render a
determination on the Town’s claims after the close of the evidentiary hearing.
We are encouraged by the significant steps towards compliance that Mr. Schwag has taken.
Such steps could well be a basis for lowering fines that shall be paid under 24 V.S.A. § 4451 and our
caselaw. However, even completely bringing a property into compliance, if done outside of the seven
days afforded by statute, does not cause an NOV to disappear or immunize a landowner from fines.
The Court still may order the landowner to pay the Town reasonable damages for the period of time
in which the property was out of compliance, in addition to any reimbursement of the Town’s costs
in this action, including reasonable attorneys’ fees. See Town of Brattleboro v. Lawrence, No. 68-6-
15 Vtec, slip op. at 3 (Vt. Super. Ct. Envtl. Div. Oct. 19, 2015) (Walsh, J.) (noting that “fines authorized
by 24 V.S.A § 4451(a) are civil in nature; they must not be punitive and they must be “rationally related
to the damages suffered from landowner’s violation of [the] Town’s bylaw” and imposing fines against
a property then in compliance for the period of time in which it was out of compliance).
The Court has discretion to impose up to a maximum fine of $200 per day that the violation
continues. V.S.A. § 4451(a), (a)(3). We ask that the parties come to the hearing prepared to discuss
the criteria contained in the Vermont Uniform Environmental Law Enforcement Act, codified at 10
V.S.A. 8010(b), which, though not directly applicable to municipal enforcement actions, are used by
this Court as guidance in determining what penalties to impose at or below that maximum. See Town
of Pawlet v. Banyai, 2022 VT 4, ¶ 30.
SO ORDERED.
Electronically signed on March 25, 2022, at Newfane, Vermont, pursuant to V.R.E.F. 9(d).
________________________________
Thomas S. Durkin, Superior Judge
Environmental Division
Entry Regarding Motion Page 3 of 3
Town of Concord v. Schwag, No. 21-ENV-00045 (Vt. Super. Ct. Envtl. Div. March 25, 2022) (Durkin, J.)