Town of Brattleboro v. Powers & Seeger - Decision on Motion ( 2022 )

VERMONT SUPERIOR COURT
Environmental Division Docket No. 21-ENV-00117
32 Cherry St, 2nd Floor, Suite 303,
Burlington, VT 05401
802-951-1740
www.vermontjudiciary.org
Town of Brattleboro v Powers and Seeger
ENTRY ORDER
Title: Motion to Consolidate or Coordinate Proceedings
Filer: Ronald A. Ferrara, Attorney for Respondents Gail Powers and James Seeger
Filed Date: Jan. 6, 2022
Memorandum in Opposition filed on Jan. 13, 2022, by Robert M. Fisher, Attorney for
the Town of Brattleboro
This matter came before us as an enforcement action brought by the Town of Brattleboro
against Gail Powers and James Seeger (together “Respondents”). Respondents are owners and
residents at a property located at 10 Chase Street (“the Property”) in the Town of Brattleboro (“the
Town”). The Town’s complaint alleges that Respondents constructed a carport and a kitchen addition
to their residence sometime between 2016 and 2020 without a permit and on property that, by the
Town’s understanding, belongs to their neighbors. Presently before the Court is Respondents’ motion
to consolidate or coordinate this case with a case that Respondents filed in the Vermont Superior
Court, Civil Division-Windham Unit, seeking to quiet title to the disputed piece of land. That case
has been assigned docket No. 21-CV-03760.
Legal Standard
Because the matters are in different divisions of the Superior Court, Respondents make this
motion, as is proper, under both Vermont Rules of Environmental Court Proceedings, Rule 2(b),
which governs coordination of proceedings strictly within the Environmental Division, and Vermont
Rules of Civil Procedure Rule 16.1(b), which governs the designation of cases throughout the Superior
Court as “complex actions,” and thereby allows multiple related actions to be assigned to one judge.
Under V.R.E.C.P. 2(b), we may coordinate proceedings “where the same violation or project involves
multiple proceedings that have resulted or may result in separate hearings or appeals in the
Environmental Court, or where different violations or projects involve significant common issues of
law or fact.” The V.R.E.C.P. rule envisions, however, that both cases are or will be before the
Environmental Division, and we hold no original or appellate jurisdiction over actions to quiet title.
Under V.R.C.P. 16.1(a), “[T]he Presiding Judge may, with the approval of the Administrative Judge,
designate any action under these rules a complex action if the Presiding Judge finds:
(1) That the factual or legal issues are unusually complicated; or
Entry Regarding Motion Page 1 of 4
Town of Brattleboro v Powers & Seeger, No. 21-ENV-00117 (Vt. Super. Ct. Envtl. Div. Feb. 11, 2022) (Durkin, J.)
(2) That there is an unusual multiplicity of parties; or
(3) That there is an unusual multiplicity of cross-claims, counterclaims, or third-party claims; or
(4) That the just and efficient administration of the action will be promoted by such designation for
other reasons, which other reasons shall be set forth in the order designating the action a complex
action.”
Respondents chiefly cite to V.R.C.P. 16.1(a)(4) to support consolidation. For the reasons
stated below, we do not believe the circumstances in these proceedings justify the requested
consolidation.
Discussion
We recite the following facts and procedural history purely for the purpose of deciding the
present motion. The following are not specific factual findings with relevance outside of this 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. op.)).
On June 14, 2016, Respondent Gail Powers submitted an application to the Town of
Brattleboro Zoning Administrator (“Zoning Administrator”) for a permit to construct a kitchen
addition at the Property. The zoning administrator denied the application, by a letter dated June 16,
2016, and gave as the reason his understanding, based on a survey recorded in the Brattleboro land
records, that “[t]he proposed addition would be located in part on a neighboring parcel,” i.e. that
owned by the Women’s Community Center (“WCC”). The letter notified Respondent of her right to
appeal, but no appeal was taken. Sometime in 2020, the Town became aware that Respondents had
constructed the kitchen addition despite the permit denial, and had also added a carport. The Town’s
understanding was that the carport also was partly or wholly on property owned by the WCC.
From the Town’s filings, it appears that the Zoning Administrator first sent a letter on
December 24, 2020, warning Respondents that their construction of the kitchen addition and carport
violated the Town of Brattleboro Zoning Bylaws (“Bylaws”), although that letter has not been filed
with the Court. He then spoke with Respondents on January 14, 2021, before sending a second letter
with the subject line “Re: Zoning Violation at 10 Chase Street” on March 12, 2021, which letter was
accompanied by a ticket indicating that Respondents had been fined $100. Both the March 12 letter
and zoning violation ticket made clear that Respondents’ alleged violation was development without
a permit. See Town’s Mot. for Summ. J., Ex. 1; Town’s Opp’n to Mot. to Coordinate, Ex. 3.1 The
March 12 Letter stated that the Zoning Administrator would “continue to issue tickets until the
situation is resolved or the Town takes the matter to court.”
No subsequent tickets have been presented to the Court; the next enforcement action of which
we are aware is that the Zoning Administrator sent Respondents a letter on September 3, 2021, with
the subject line “Re: Zoning violation 2020-v22, 10 Chase Street, Brattleboro, Tax Map Parcel
#265243.000 - NOT CURED.” That letter refers to the earlier enforcement actions and again referred
to the violation as development without a permit and after a permit had been denied. That letter also
informed Respondents that they had seven days to cure the violation before the Town would take the
matter to court, and informed them of their right to appeal the determination to the Town of
Brattleboro Development Review Board (“DRB”). Town’s Opp’n, Ex. 4. This September 3, 2021,
1 These exhibit numbers are as referred to in the Motion for Summary Judgment and Motion to Coordinate, respectively;
the documents themselves are not labeled with exhibit numbers.
Entry Regarding Motion Page 2 of 4
Town of Brattleboro v Powers & Seeger, No. 21-ENV-00117 (Vt. Super. Ct. Envtl. Div. Feb. 11, 2022) (Durkin, J.)
letter is therefore what our Court typically refers to as a Notice of Violation (“NOV”), as contemplated
by 24 V.S.A. § 4451. Respondents did not appeal the NOV.
Respondents argue that because the case before our Court and the case before the Civil
Division both involve the issue of the disputed boundary line between the Respondents and the WCC,
the cases should be consolidated. They argue doing so would promote the efficient use of judicial
resources and prevent the potential unfairness of what they term conflicting results in the two cases
and therefore satisfies subsection 4 of V.R.C.P. 16.1(a). Essentially, they claim that success in the
quiet title action would affect either the Town’s entitlement to relief in this enforcement case or the
remedies that our Court could justly order. Because we disagree with this assessment, we find that
Respondents have not met their burden to justify consolidation under V.R.C.P. 16.1(a)(4).
Respondents’ argument misstates the nature of the zoning violation alleged by the Town.
Respondents’ alleged violation is building the kitchen addition in direct contravention of a permit
denial and constructing a carport without a permit. See Town’s Mot. for Summ. J., Ex. 1 (March 12,
2021 letter); Town’s Opp’n, Ex. 4 (September 3, 2021 NOV). While it is true that the reason the
Zoning Administrator gave for denying Respondents’ permit application was that the land on which
they sought to build belonged at least in part to their neighbors, that is not the basis of the violation.
It has not been disputed that the construction of the kitchen addition or carport constitute “land
development” and that all land development requires a permit per the Bylaws. Indeed, the NOV was
not appealed, making the determination final, even had it been in error. See City of S. Burlington v.
Dep't of Corr., 171 Vt. 587, 589 (2000) (citing Levy v. Town of St. Albans, 152 Vt. 139, 143 (1989)).
Respondents therefore cannot now contest the violation. Id.; see 24 V.S.A. § 4472.
The question of the property line is therefore doubly irrelevant to the Town’s right to relief—
both because the NOV was premised upon development without a permit, and because the NOV has
become final. Respondents claim, however, that the boundary line dispute is relevant to whatever
remedy the Court may order. One usual remedy for unpermitted construction is that the Court could
order removal of the unpermitted structures. Cf. Fenwick v. City of Burlington, 167 Vt. 425, 435
(1997) (“If the zoning violation is substantial and involves conscious wrongdoing, the City is entitled
to an injunction, including a mandatory injunction to remove an offending structure, as a matter of
course.”); see also In re Letourneau, 168 Vt. 539, 552 (1998) (upholding Environmental Court’s order
to remove a home addition built without a permit and in violation of the applicable setbacks).
Respondents claim that if they prevail in their quiet title action, it would be inequitable to order them
to remove the kitchen addition and carport, because upon proof of their title to the disputed land,
they would be able to apply for a permit and variance for the structures as built.2 They therefore seek
to consolidate this case with the civil case or at least delay resolution of this case until after the civil
case resolves.
Such concerns are far too speculative to prove that efficient administration of justice requires
consolidation, as Respondents suggest. As already discussed, the Town’s entitlement to relief in this
case does not depend upon the outcome of the boundary dispute litigation. We further note the
Town’s position in opposition to the present motion that, even assuming Respondents are successful
in their quiet title action, the DRB would not now issue a permit for the kitchen addition as built,
given that it extends into the setback; and that no variance would be appropriate as appellants “created
their own hardship” by constructing the addition. While the Town may not speak for the DRB, its
position on the interpretation of its Bylaws is helpful guidance to the Court. Even without that
2 The variance is allegedly necessary because, even by Respondents’ understanding of the location of the boundary line,
their kitchen addition lies within the required setback from it.
Entry Regarding Motion Page 3 of 4
Town of Brattleboro v Powers & Seeger, No. 21-ENV-00117 (Vt. Super. Ct. Envtl. Div. Feb. 11, 2022) (Durkin, J.)
guidance, however, our position would be the same: an argument that depends on the discretionary
decision of the DRB as to some as-of-yet hypothetical permit and variance applications is far too
speculative to convince us that consolidation of these two cases is required. We may, of course, take
Respondents’ concerns into consideration when fashioning appropriate injunctive relief pursuant to
24 V.S.A. § 4452.
Lastly, we note that we have allowed Respondents to conduct discovery related to the Town’s
enforcement actions and notice thereof. Respondents will therefore be able to raise any affirmative
defenses, as they have indicated they intend, including unclean hands or estoppel, regardless of
whether this case is coordinated with their quiet title action.
In summation, even though the case before us and the case in the Civil Division relate to the
same property, they present wholly distinct legal issues. In the Civil Division, the dispute is over a
property boundary. Our case is a zoning enforcement matter where the infraction is building not only
without a permit, but in contravention of a decision denying a permit. For this reason, we DENY
the motion to consolidate or coordinate this case with case No. 21-CV-03760 in the Civil Division.
We address Respondents’ outstanding motion to delay ruling on the Town’s motion for summary
judgment in a separate entry order.
SO ORDERED.
Electronically signed on February 11, 2022, at Newfane, VT pursuant to V.R.E.F. 9(d).
________________________________
Thomas S. Durkin, Superior Judge
Environmental Division
Entry Regarding Motion Page 4 of 4
Town of Brattleboro v Powers & Seeger, No. 21-ENV-00117 (Vt. Super. Ct. Envtl. Div. Feb. 11, 2022) (Durkin, J.)